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HomeMy WebLinkAbout2003 10 13 Public Hearings 402 Second Reading - Ordinance 2002-24 Amending Chapter 10 of the City Code COMMISSION AGENDA ITEM 402 Consent Informational Public Hearing X Regular October 13, 2003 Meeting I--' Mgr. / ~/u/6/0J Att. / Dept. REQUEST: The City Attorney and City Manager request that the City Commission consider for second reading and adoption Ordinance No. 2002-24 amending Chapter lO of the City Code to exempt non- commercial solicitors from the permitting requirements for solicitations conducted in the City and establish criteria to grant, deny and revoke solicitation permits. PURPOSE: To adopt Ordinance 2002-24, amending Chapter lO of the City Code. The proposed ordinance amends existing Section lO-136, entitled "Transient or itinerant solicitors; pernlit required; prerequisite to issuance," which requires all solicitors, without limitation, to first obtain a written permit from the City Manager prior to conducting solicitation activities by creating an exemption for non-commercial solicitations in light of a recent United State Supreme Court decision and establishes criteria to grant, deny and revoke solicitation permits. APPLICABLE LAW AND PUBLIC POLICY: Watchtower Bible and Tract Society of New York v. Village of Stratton, 122 S.Ct. 2080 (2002), invalidated an ordinance of the Village of Stratton which required solicitors or "canvassers" to obtain a permit from the Village prior to conducting their activities. The ordinance covered various First Amendment speech activities, including the door-to-door distribution of political and religious handbills, pamphlets as well as commercial speech and solicitation of funds. While the United States Supreme Court acknowledged that the Village could impose reasonable restrictions on commercial speech and the solicitation of funds, the First Amendment is violated when permits are Page 1 of 2 required to participate in "free and open discussion" associated with traditional political and religious canvassing and pamphleteering. Consistent with Watchtower Bible, the proposed ordinance amending Section 1 0-136 of the City Code creates an exemption for non-commercial solicitation activity and further defines the type of commercial solicitation activity which requires registration with the City. In addition, Sec. 10-136 does not contain any criteria for the City to either grant, deny or revoke a permit issued thereunder. Such unbridled discretion allows for arbitrary and capricious application ofthe law and constitutes a violation of the due process clause. Brevard v. Bagwell, 388 So.2d 645 (5th DCA 1980). The creation of established criteria will avoid a violation of the due process clause and potential liability against the City. CONSIDERATIONS: 1. To remain consistent with the above-referenced United States Supreme Court decision and avoid any potential constitutional challenges that may incur liability upon the City. 2. To avoid violation ofthe due process clause by creating standard issued criteria for the grant, denial or revocation of a permit. 3. This ordinance will still permit the City to require all commercial solicitors to obtain a written permit from the City prior to conducting any solicitation activities within the City. STAFF RECOMMENDATION: The City Attorney and City Manager recommend the City Commission adopt Ordinance No. 2002- 24 on second reading. ATTACHMENT: Ordinance No. 2002-24 COMMISSION ACTION: Ordinance No. 2002-24 was approved on first reading on August 26, 2002. F:\Docs\City of Winter Springs\Agenda\Solicitation _I O-13-03.wpd Page 2 of 2 ORDINANCE NO. 2002-24 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, AMENDING SECTION 10-136 OF THE CITY CODE OF ORDINANCES, EXEMPTING NON-COMMERCIAL ACTIVITY FROM PERMIT REQUIREMENTS; ESTABLISHING REQUIREMENTS FOR THE GRANT, DENIAL AND REVOCATION OF PERMITS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING FOR INCORPORATION INTO THE CODE; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under Section 2(b), Article vrn, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, the City Commission desires to continue to protect its citizens against fraudulent and criminal activity associated with door-to-door commercial solicitation for services, goods, wares, and funds in residential, business and industrial areas throughout the City, through enforcement ofthe City's registration and identification regulations, but acknowledges that the recent United States Supreme Court decision in Watchtower Bible Tract Society of New York, lnc, v. Village of Stratton, 122 S.Ct. 2080 (2002) now prohibits the City from requiring a solicitor to obtain a permit, including registration and identification requirements, to conduct non-commercial, door-to- door solicitations, such as but not limited to political and religious canvassing, and the distribution of handbills, pamphlets and other materials; and WHEREAS, the City Code currently requires any transient or itinerant solicitor to first obtain a written permit from the city manager and comply with registration and identification requirements in order to solicit any matter to its citizens and creates a violation ofthe City Code for failure to obtain such permit prior to conducting such activities; and WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this ordinance to be consistent with the ruling of the United States Supreme Court in Watchtower Bible and in the best interests of the public health, safety, and welfare of the citizens of Winter Springs. City of Winter Springs Ordinance No, 2002-24 Page I of 4 NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by the reference as legislative findings of the City Commission of the City of Winter Springs. Section 2. Code Amendment. The City of Winter Springs Code, Section 10-136 is hereby amended as follows (underlined type indicates additions and strikeout type indicates deletions, while asterisks (* * *) indicate a deletion from this Ordinance oftext existing in Chapter 10. It is intended that the text in Chapter 10 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance): Chapter 10. License and Business Regulations * * * Article V. Peddlers and Solicitors and Miscellaneous Sales Sec. 10-136. Transient or itinerant solicitors; permit required; prerequisite to issuance. (a) It shall be unlawful for any transient or itinerant solicitor to solicit orders for goods, wares, merchandise, newspapers, magazines, periodicals or any other matter having a commercial business purpose, whether for profit or not, including the solicitation of funds, without first obtaining a written permit from the city manager. Specifically excluded from this regulation are all non- commercial solicitations including, but not limited to, political or religious canvassing, or distribution of handbills and pamphlets, or other non-commercial materials. (b) The city manager is hereby authorized to issue a permit required by (a) above to any person upon propel application, but only upon exhibition to him of proper eledentials. completion and submittal of an application accompanied by a fee oftwenty-five ($25.00) dollars and providing for the following information: 1. Name, address, and date of birth of applicant. 2. Photographic identification of applicant (valid driver license or state-issued identification card). ~ Valid state and/or local occupational license or work permit issued to conduct commercial or business solicitations or the solicitation for funds, if applicable. 4. Documentation reflecting that solicitation is to be performed on behalf of an active, bona fide company, corporation, group, or foundation which may include, but not be limited City of Winter Springs Ordinance No, 2002-24 Page 2 of 4 to articles of incorporation. certified letter containing corporate seal. or business registration . '. ~ ,'. -, . with the State of Florida. . ~ Name. address. and date of birth for each person seeking to conduct solicitation activities under the application. 6. Name and address of business on whose behalf the solicitation is to be conducted. 7. Time period and location in which the solicitation is to occur. if} The city manager shall deny or revoke the issuance of a permit for anyone or more of the following reasons under this section if the applicant: 1.:. Fails to provide the information required under subsection (b) above; or 2. Provides false or misleading information in the application; or ~ Fails to maintain applicable state and/or local occupational licensees) or their equivalent to conduct solicitations during the term of the solicitation permit issued under subsection (b) above; or 4. Has been convicted. whether formal adiudication or not of a violation of state or local law . relating to theft. burglary or fraud-related crimes as set forth under Chapters 812- 817. Florida Statutes. or any person intending to conduct solicitations under the application; or ~ Conducts solicitation in such a manner as to constitute a trespass upon private propertv; or 6. Ceases to possess the qualifications required under this subsection for the original registration; or 1. Within the previous seven (7) years. has violated subsection (c)(2). (3). (4) or (5) above. Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the Winter Springs City Code and any section or paragraph number or letter and any heading may be changed or modified as necessary to effectuate the foregoing. City of Winter Springs Ordinance No. 2002-24 Page 3 of 4 Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 6. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to the City Charter. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the _ day of ,2003. JOHN F. BUSH Mayor ATTEST: ANDREA LORENZO-LUACES City Clerk Approved as to legal form and sufficiency for the City of Winter Springs only: Anthony A. Garganese, City Attorney First Reading: Second Reading: Effective Date: F:\Docs\City of Winter Springs\Ordinances\Solicitation. wpd City of Winter Springs Ordinance No, 2002-24 Page 4 of 4