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
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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
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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.
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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
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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
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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:
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City of Winter Springs
Ordinance No, 2002-24
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