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Home My WebLink About2002 08 26 Public Hearings B First Hearing - Ordinance 2002-24 Amending Chapter 10 of City Code .... , COMM,lSSION AGENDA ITEM B Consent Inforn1ational Public Hearing X Regular AugUS~:2002 .r Meeting /IfJr Mgr. / Au. u~ / Dept REQUEST: The City Attorney and City Manager request that the City Commission consider first reading of Ordinance No. 2002-24 amending Chapter 10 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: Tu I.:unsider an Ordinance amending Chapter 10 of the City Code. The proposed ordinance amends existing Section 10-136. entitled "Transient or itinerant solicitors; permit 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 (,A W AND PUBLIC POLICY: Watchtower Bible and Tract Society of New York v. Village of Srfal/on, 122 set. 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 cuvered various Fir'st Amendment speech activities, including the door-ta-door distribution of political and religious handbills, pamphlets a.o; well as commercial speech and solicitation of funds. While the United States Supreme Court acknowlcdgcd that the Village could impose reasonable reslril.:tions on commercia) Page 1 of 2 17 yl .... / speech and the solicitation of funds, the l:irsl Amendment is violated when permits are required to participate in "free and open discussion .. associated with traditional political and religious canvassing and pamphleteering. Consistent with Walch/ower jjihle, the proposed ordinance amending Section 10-136 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. ) 0- I 36 does no! 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 of the law and constitutes a violation of the due process clause. Brcl'ard v. BOfJ"'ell, 388 SO.2d 645 (5l!l DCA J 9RO) The creation of established criteria will avoid a violation of the due process clause and potential liability against the City. CONSIDERA TIONS: To remain consistent with the above-referenced Coiled States Supreme Court decision and avoid any potential constitutional challcngcs thaI may incur liability upon the City. To avoid violation of the due process clause oy creating standard issued criteria for the grant, denial or revocation of a permit. This ordinance will still permit the City to require all commercial solicitors to obtain a v,,-ritten permit from the City prior to conducting any solicitation aClivities within the City. STAFF RECOMMF.NDA TION: The City Atlomeyand City Manager recommend the Cily Commission approve Ordinance No. 2002- 24 for fir~t reading. ATfACH M [NT: Ordinance No. 2002-24 COMMISSION ACTION: F:\Doc,-'C;ly <rf W'nl<r Sprint:'I.'\.l:cnd.\A~Ct\iU.B.S.:."cilun.8.1 2-01. \li)1d Page 2 of 2 ORDINANCE NO. 2002-24 AN ORDINANCE OF Tlit: CITY COMMISSION OF THE CITY OF WrNTER SPRINGS, FLORlDA, AMENDING SECTION 10-136 OF THE CITY CODE OF ORDTNANCES, EXEMPTING NON-COMMERC.lAL ACTIVITY FROM PERMIT REQUIREMENTS; ESTABLISHING REQUIREMENTS FOR TRE GRANT, DENTAL AND REVOCA nON OF PERMITS; PROVIDING FOR TH E REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING l<"ORINCORPORA nON INTO THE CODE; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DA TE. WHEREAS, the City is granted lhe authority, under ~2(b), Art VIII of the Stale Constitution, (0 exercise any power tor municipal purposes, except when expressly prohibited by Jaw; 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 entorcement of the City's registration and identification regulations. but acknowledges that the recent United States Supreme Court decision in Watchtower Rihle Tract Society of New York, fnc. \1_ Village of Stratton, 122 S.C1. 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 distributiun of handbills, pamphlets and other materials; and WHEREAS, the Cit)' Code currently requires any transient or itinerant solicitor to first obtain a written pennit from [he city manager and comply with registration and identification requirements in order to solicit any matter to its citizens and create!; a violation of the 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 ordinane<: to be consistent with the ruling of the United States Suprt:me Court in Walchtower Bihle and in the best interests of the public health, satety, and welfare of the citizens ofWinler Springs. Page 1 or .1 i' NOW, TIIEREFORE, THE CITY COMMlSsrON OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: Section I. 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 stI ikc(lul type indicates deletions, while asterisks (* · *) indicate a deletion /Tom the Ordinance of text 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 .. lOr '" 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 havinR a commerci<1! business purpose. whltther for profit or not includin~ the solicitation of funds. without first obtaining a \\-TItten permit from the city manager, SpecificaJly excluded from this regulation is all non-commercial solicitations including_ but not limited to. political or religious canvassing; or distribution of band bills and pamohlets. or other non-commercial materials. (b) The city manager is hereby authorized to issue a permit required by (a) above to any person upon ProPl;1 <1IJIJI~('c1t;'1I1, but vllly u!-'OIl "xhibitioll to him of proper Cl c:dGutials completion and submittal of an application accompanied by a fee of twenty-five ($25,00) dollars and providing for the folJowinR information: L Name. address, and date of birth of aDolicant. b Photographic identification of aoplicant (Valid Driver License or State-issued Identification Card). l Valid state and/or local occupational license or work permit issued to conduct commercial or business solicitations or the solicitation for funds. if applicable. City of Winter Springs Ordinance No. 2()()2-24 r'~e 2 of 1 'j' t6 articles of incorporation. certified letter containing corporate seal. or business registration with the State of Florida: i. Name. address. and date of birth for edch person seeking to conduct solicitation activities under the application 6 Name and address of business on whose oehaJfthe solicitation is to be conducted. 7. Time period and location in which the solicitation is to occur. (c) The cit\! manager shall deny or revoke the issJJ.ance ora permit for any one or more of the following reasons under this section if the applicant: .L Fails to provide the information reouire~t under subsection (b) above: or 1. Provides false or misleading informaTion in the application; or L Fails to maintain applicable state and/or local occupational licensees) or their equivalent Lo condut-'t solicitations during the term of the solicitation permit issued under subsection (b) abQye; or .i. 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 .:i. Conducts solicitation in such a manner as to constitute a trespass upon private property: or 6. Ceases to possess the QuaJificationsrequired under this subsection for the original registration: or L Within the previous seven (7) years, ha.o; 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 contlict. Section 4. Incorporation Tnto 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 OnJiru<ncc No. 2002-24 rage 3 of 4 1a Section 5, Severability. If any section, subsection, sentence, dause, 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 n separate, di~1:inct and independent provision, and such holding shall not affecl the validity of the remaining ponions of thi $ 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 Chaner. A DOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the ,,,_ day of __'_ _ -J 2002. PAUL P. PARTVKA Mayor ATTEST: ANDREA LORENZQ-LUACF:S City Clerk Approved as to legal form and sufficiency for the Cit}, of Winter Springs only: First Reading: ___ Second Reading: -..4_. Effective Date: Anthony A. Garganese, City Attorney F :Il)~\c.ity ~(WiI:ta Splll1vli IrJI"'T\C<""5ohctl~lon~'X'diIUllCCO""",."""'''Li.,1 ("""'"' wpcf City (Jf Winl(:r Sprmgs Onlinunc<: No. 2002-2,1 rA~~4or4