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HomeMy WebLinkAboutA002 - Letter dated September 7, 1994 to City Council from City Attorney Es C I rT Y Ou F A ME S CITY ATTORNEYS OFFICE P.O. BOX 811 AMES IOWA 50010 Community-University-Opportunity 515 CLARK AVE. PHONE 515-239-5146 A FAX 515-239-5142 FILED September 7, 1994 SEP - 71994 The Honorable Larry R. Curtis, Mayor, and Members of the City Council CITY MES,CLE IO of the City of Ames, Iowa qlv of ati��s,iov�a Re: Regulation of Peddlers Dear Mayor Curtis and Council Members: The Ames Peddlers ordinance does not state that the license will be revoked if the peddler violates any City ordinance. It also does not require information about the peddlers' experience in previous cities, or provide that the license might be denied for reason of violation in those cities. Other than that, the Ames ordinance does all that can be done. A revocation procedure could be a useful response to some complaints. There have been some incidents reported that may have constituted the offense of trespassing. There have been no reports of any more serious incidents associated with peddlers in the Ames community. Nevertheless, people are disturbed by this activity. Unfortunately, there is no constitutionally acceptable regulation that will ban the practice of peddling without banning it with respect to the fundraising activities of local groups as well. Municipal regulations must be reasonably related to achieving some public purpose, and cannot create arbitrary classifications not related to that purpose. On a related matter, that of those persons going door to door seeking donations,I have attached for your further consideration an ordinance I prepared back in March which, in my opinion, would take the City of Ames to the constitutional limit for regulation of persons going door to door seeking donations. It should be stressed that the police will respond to any incidents of peddlers appearing on your _ property at any place other than your front door, or if the peddler does not leave immediately when told to do so. The offense of trespass can be charged under those circumstances. Yours truly, - ohn R. Kl > City Attorney JRK:gmw c: Chief Ballantine AMES i I CITY OF AMES II P.O. BOX811 AMES IOWA 50010 Community-University-Opportunity March 23, 1993 The Honorable Larry R. Curtis, Mayor ---------� And Members of the City Council FILED Of the City of Ames, Iowa Re: Door to Door Solicitation MAR 2 31993 Dear Mayor Curtis and Council Members: CITY CLERK CITY OF AMES, IOWA The City has long regulated door to door sales by means of Section 17.26, Ames Municipal Code; but, has refrained from regulating solicitation of donations because of 1st Amendment "free speech" implications and a 14th Amendment "equal protection" issue associated with the desire to exempt local groups. The attached ordinance revises Section 17.26 by adding a provision shown at subsection (3) to encompass solicitations of donations. Although the U.S. Supreme Court has held that solicitation of donations is a right clearly protected by the 1st Amendment to the U.S. Constitution, [Schaumberg v. Citizens for a Better Environment, (1980) 444 U.S. 620, 6 L.Ed.2d 73, 100 S.Ct. 826] the U.S. Court of Appeals for the Fifth Circuit has held that a mere requirement for registration and display of official identification does not transgress 1st Amendment rights. [International Society for Krishna Consciousness v. Houston (CA 5 Tex. 1982) 689 f.2d 541] . Ordinances that exempt local residents have been invalidated as a violation of the 14th Amendment's guarantee of equal protection of the law. 9 McQuillin Mun. Corp. §26.149.20. However, in this ordinance, the exemption is based not on residency, but on whether persons are associated with some permanent place in the City at which information about the solicitation is available. This ordinance carries a risk of liability. Police may arrest unregistered solicitors. Those arrested might sue for violation of constitutional rights, seeking damages and attorney fees to test the local office exemp— tion. Or, the complained of solicitor may be eager to register so they have a real City I .D. to show. If you wish to proceed further you may place the matter on the agenda for a future meeting. Respectfully submitted, John R. Klaus --- City Attorney Encl . AMES C OF AMES - ITY P.O. BOXR11 AMES IOWA 50010 Commu pity-University-Oppottuniry March 23, 1993 The Honorable Larry R. Curtis, Mayor And Members of the City Council Of the City of Ames, Iowa Re: Door to Door Solicitation Dear Mayor Curtis and Council Members: The City has long regulated door to door sales by means of Section 17.26, Ames Municipal Code; but, has refrained from regulating solicitation of donations because of 1st Amendment "free speech" implications and a 14th Amendment "equal protection" issue associated with the desire to exempt local groups. The attached ordinance revises Section 17.26 by adding a provision shown at subsection (3) to encompass solicitations of donations. Although the U.S. Supreme Court has held that solicitation of donations is a right clearly protected by the 1st Amendment to the U.S. Constitution, [Schaumberg v. Citizens for a Better Environment, (1980) 444 U.S. 620, 6 L.Ed.2d 73, 100 S.Ct. 826] the U.S. Court of Appeals for the Fifth Circuit has held that a mere requirement for registration and display of official identification does not transgress 1st Amendment rights. [International Society for Krishna Consciousness v. Houston (CA 5 Tex. 1982) 689 f.2d 541] . Ordinances that exempt local residents have been invalidated as a violation of the 14th Amendment's guarantee of equal protection of the law. 9 McQuillan Mun. Corp. §26.149.20. However, in this ordinance, the exemption is based not on residency, but on whether persons are associated with some permanent place in the City at which information about the solicitation is available. This ordinance carries a risk of liability. Police may arrest unregistered solicitors. Those arrested might sue for violation of constitutional rights, seeking damages and attorney fees to test the local office exemp- tion. Or, the complained of solicitor may be eager to register so they have a real City I .D. to show. If you wish to proceed further you may place the matter on the agenda for a future meeting. Respectfully submitted, John R. Klaus City Attorney Encl . ORDINANCE NO. AN ORDINANCE TO AMEND THE MUNICIPAL CODE OF THE CITY OF AMES, IOWA, BY REPEALING SECTION 17.26 OF THE MUNICIPAL CODE AND ENACTING A NEW SECTION 17.26 FOR THE PURPOSE OF REVISING THE TRANSIENT MERCHANT REGULATIONS; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH; ESTABLISHING A PENALTY AND SETTING AN EFFECTIVE DATE. BE IT ORDAINED, by the City Council for the City of Ames, Iowa: Section One. The Municipal Code of the City of Ames, Iowa is hereby amended by repealing Section 17.26 and enacting a new Section 17.26 as follows: "Sec. 17.26. PEDDLERS, SOLICITORS, AND TRANSIENT MERCHANTS. (1) Each and every person engaged in residence to resi- dence solicitation of orders for goods or services, or in residence to residence peddling of things carried along for sale, and who does not have any indoor place in the city where the same selling of goods and services is done by said person on a continuous and permanent basis, shall first obtain and wear, in a manner plainly visible, a registration and identification badge issued by the City Clerk. (2) Each and every person who, for the purpose of selling goods or services, occupies a place out of doors, other than on public property, .or who for said purpose occu- pies an indoor place on an intermittent or temporary basis only, and who does not have any indoor place in the city where the same selling of goods and services is done by said person on a continuous and permanent basis, shall obtain and wear, in a manner plainly visi- ble, a valid registration and identification badge issued by the City Clerk. (3) Each and every person engaged in residence to resi- t- dence solicitation of gifts or donations who is not associated with a permanent office or home in the city where someone will receive and respond to inquiries for information and identification, shall first obtain and wear, in a manner plainly visible, a registration and identification badge issued by the City Clerk. ;�6�^ <✓` ��� �'` (4) For the purpose of registration each person as aforesaid shall provide to the City Clerk, or Clerk's designee the following: (a) Their name, address, date of birth, social security number, height, weight, hair and eye color, and phone number, and if they do not have a perma- nent residence in this city, the residence and phone number where they reside permanently. (b) Registration for minor children shall be done by a parent or legal guardian, or by a person bearing the notarized authorization of the child's parent or guardian. (c) Persons working for or as a part of an organized crew shall provide the name, address and phone number, as aforesaid, of the person in charge of and responsible for the crew. (d) The make, model, year, state of registration and license number of any and all vehicles being used in connection with the peddling or soliciting. (e) List of the products being sold and the price of each. (f) Name, address and phone number of the supplier of the product. (g) Proof of the state sales tax permit or proof of tax exemption from state and federal taxing authorities. (5) The City Clerk may refuse to register persons who fail to furnish complete or accurate information, and registra- tion shall be invalidated if it is found that false information was provided. (6) Each adult person shall produce a photograph-driver's license, or if they have no such license, two other forms of documentary identification. Minor children's identi- fication shall be any reasonable means that establishes the child's identity and the identity of the child's parent or guardian. (7) The identification badge shall be of a distinctive logo and design to show clearly that it has been issued by the City of Ames and shall incorporate a photograph of the registrant taken at the Clerk's office or where the Clerk directs, at the time of registration. (8) The provisions of this section do not apply in the fol- lowing cases: (a) to those activities which are the subject of the provisions of the street vendors regulations set out in Sections 22.11 through 22.23 of the Ames Munici- pal Code; 2 r - (b) to persons who make regularly scheduled route deliveries in residential areas of goods or servic- es, e.g. newspaper carriers, lawn services, cable television service, dairy product delivery service; (c) to non-profit groups or events associated with some permanent office or home in the city where someone will receive and respond to inquiries for informa- tion about the sale or solicitation and identifica- tion of the persons involved. (9) The aforesaid registration badge shall be valid for sixty days from its date of issuance. (10) Persons found to be peddling or soliciting in violation of this section shall be ordered by the police to cease all peddling or soliciting immediately until in compli- ance with this section. Failure or refusal to obey such order shall be punishable as a misdemeanor. (11) Persons obtaining the registration badge pursuant to this section shall pay such fee as the Ames City Council shall set, from time to time, to cover costs of administration and enforcement of the provisions of this section. When three (3) or more businesses intending activity described in subsection (2) (Transient Merchants) are brought together at one place under the auspices of a non-selling organization that performs the required registration tasks for each of the persons to be so engaged, and brings that completed material to the City Clerk in advance of the selling event, only a single registration fee shall be charged, and photographs shall not be re- quired. When persons as aforesaid come together at one place under the auspices of an organization exempted by subsection (8), no registration or fee shall be re- quired." Section Two. Violation of the provisions of this ordinance shall constitute a misdemeanor, punishable by a fine not to exceed one hun- dred dollars, or imprisonment not to exceed thirty days. Section Three. All ordinances or parts of ordinances in conflict herewith shall be repealed to the extent of such conflict if any. Section Four. This ordinance shall be in full force and effect from and after its passage and publication as required by law. Passed this day of 1993. Sandra L. Ryan, City Clerk Larry R. Curtis, Mayor 0228 3