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_ ____., ..___ _ _. ,Regulating merchants above and beyond the Because this is a highly litigated
statutory requirement for them to matter,and because cities risk being
peddlers obtain county licenses. M.S.412.221, held liable for federal penalties if they
subd.19,echoes the provisions of adopt and try to enforce an unconstitu-
solieitors and chapter 329 for statutory cities. Most tional regulation, cities should involve
charters provide home rule charter their city attorney before adopting any
transient cities with the same type of explicit regulation. Further,before a city
authority. M.S.437.02 restates the decides it must do something,it should
merchants authority to regulate and license balance the extent of its current or
transient merchants in all cities. In potential problems against the risk of
addition, the courts have held that litigation over any attempted enforce-
KENT SULEM reasonable regulations of peddlers, ment of a regulation. Cities that
solicitors,and transient merchants are decide they have to do something
- valid exercises of a city's police powers should carefully consider the following
ities have both statutory and in protecting the health, safety,and suggestions and develop regulations
common law authority to welfare of the public against an activity similar to those that have either been
regulate peddlers,solicitors, that can become a nuisance. While it is upheld in court or that are defendable
and transient merchants. clear that cities can not totally ban if challenged.
Minnesota Statutes,sections peddlers,solicitors,and transient Define all terms. Peddlers,solicitors,
329.06 and 329.15, grant merchants, it is not clear how far cities and transient merchants are not
cities the right to regulate and license can go_in exercising their regulatory recognized by the courts as being the
peddlers,solicitors,and transient authority. same. Peddlers,also known as hawkers,
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i 31
s `go from place to place to sell goods interstate commerce amount to an
that are delivered at the time of sale. ( undue burden on interstate commerce
Solicitors,also known as canvassers,go and therefore violate the U.S.Constitu- w
from place to place to obtain orders for tion. Solicitors of purely Minnesota W flatdo
goods or services that are to be deliv- made products would appear eligible
ered or performed at a later time,or to for licensing as they would not be all these
collect donations. Transient merchants involved in interstate commerce.
are generally persons who sell their Other cases,however,indicate that to • ip
• •merchandise from a vehicle or other require different requirements for lll��ca ties
portable shelter,or from an empty different people conducting essentially
storefront,and who do not intend to the same business for the purpose of
remain in business at any one location controlling a nuisance amounts to have 4
for more than a temporary period of arbitrary,and thus unenforceable,
time,usually no more than a few weeks. regulations.
Exempt specific groups from the -- Provide Due Process. Licenses must onamon.
definitions. The courts have held that be issued as quickly as possible.
,,,
those who make initial contacts with Anyone denied a license should be
property owners or occupants for the informed of the reason for denial and
purpose of establishing a regular of any right to appeal the decision
delivery route,as well as people making through the city or ultimately in 4 s.deliveries to customers on a regular district court. These provisions should
route,are not the type of nuisances be clearly spelled out in the city's
intended to be defined and regulated ordinance. •
by peddler,solicitor,and transient Exempt certain peddlers and
merchant regulations. Likewise, transient merchants from licensing.
wholesalers making direct sales to The Minnesota State Constitution •
retailers,have also been exempted prohibits the licensing of farmers •
from the definitions of peddlers, selling the products of their own farms. ''q • •••i.
•
solicitors,and transient merchants. The caselaw discussed above about •
Differentiate between licensing and imposing different requirements on •
•
registering. Licensing is a formal different people conducting essentially • . •
process involving an application,a fee, the same business,has made it clear • •
and the right of the council to grant or that a city also can not license anyone
refuse the license. A background who re-sells any product purchased
check is common before a license is from an exempt farmer. In addition,
granted. Registration is the simple anyone going place-to-place for the
process of recording a person's name primary purpose of exercising their Software solutions and
and any other pertinent information general state or federal constitutional
the council believes necessary to ensure rights should not be licensed because, support services from
the good faith of the registering party. as with the commerce clause,licensing
No fees are involved with registrations imposes undue burdens on these Precision Computer
and the whole process should only take constitutional rights. Systems,
a few minutes instead of several days. Most of the existing caselaw involves
Only require licenses of peddlers people who were exercising First PCS provides software solutions for
and transient merchants. Even though Amendment rights by distributing
the statutes authorize the licensing of religious or political information and municipalities throughout Minnesota
solicitors,caselaw dictates that they not pamphlets. The fact that a small fee or and the Midwest, including
be licensed. The courts'concern is the contribution may be requested for the budgetary,accounting, payroll,
impact of local regulations on inter- pamphlets has not been enough to inventory, utility billing and others.
state commerce. Because peddlers and remove the constitutional protection. Call for more information.
transient merchants have their goods in The courts have indicated that these Discover why municipalities across
the state before they are sold, the chain groups could lose their exemption for Minnesota rely on PCS every day.
of interstate commerce has ended and the sale of books or other goods sold If you haven't looked at PCS lately,
licensing has no impact on it. Solici- only for revenue raising purposes,or if maybe it's time you did.
tors,however,make their sales before professional fund raisers were used.
obtaining their goods. If the goods are It has been a common practice for
subsequently shipped from another cities to also exempt all non-profit
state,the chain of interstate commerce organizations,and some cities have %`'
remains unbroken. The courts have inquired about exempting minors from
held that formal licensing procedures their regulations. Such practices,while ��
and fees for solicitors involved in of good intention,could put a city at
PCS
CONTINUED ON PAGE 34 Precision Computer Systems
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tit'?,NESOTA CITIES ! APRIL 199 *t"*" - -w- ,a 33
CONTINUED FROM PAGE 33 rights. In addition, there are questions
Save Trees, risk. Such a provision could be as to the applicability of such an
ordinance to non-residential settings,
challenged on the grounds that it once although it probably is acceptable.
again treats people differently for Further, the nuisance created under a
Save Money doing essentially the same thing. While Green River ordinance has been held
homeowners may not be as upset by a to be a private nuisance meaning
member of a non-profit organization enforcement is basically up to the
Send for selling candy ringing their doorbells as affected land owner or tenant.
they are by vacuum cleaner sales- A modified Green River ordinance
people,the courts have generally makes it a trespass to enter onto any
Protecting Trees looked at the act of going place-to- property,whether residential or not,
place itself as the nuisance,not the for the purpose of soliciting or ped-
from Construction product being sold. If the sale itself is dling,where the land owner has posted
secondary to expressing the belief of a sign stating to the effect"No Peddlers
Damagethe group, then the constitutional or Solicitors." Because the landowner
• rights exception would apply and no or tenant and not a government makes
• r< ::c special exception would apply. If the the prohibition,this provision applies
sale is primarily commercial in nature, everywhere a posting is made,and is
_.c' which the sale of candy etc.could easily enforceable against all peddlers and
'v be found to be,then upholding P g an solicitors,including those involved in
'' - r� -- exemption would depend on the city interstate commerce and those at
i�� being able to convince the courts that tempting to exercise Constitutional
place-to-place sales by minors or non- rights. In fact,the provision should be
,; I r r profit groups is somehow different enforced equally to avoid legal chal-
- 7---- than similar sales by adults and regular lenges of favoring otherwise protected
:� 1 .44businesses,and therefore is nota groups or people. This approach also
nuisance. Given the tone of existing allows for criminal prosecution of
":� AI OR caselaw,it could be difficult to con- trespassers.
E. iff �, vince the courts of this distinction. Of Other Considerations. In addition,
�� �'��•a.._ course, rather than license each cities may also regulate the time,place,
.46.. . % person, one license could be granted to and manner of peddling, soliciting,
the group. and other transient selling. For
Require solicitors and license- example,a city can require that all
� exempt peddlers and transient peddlers,solicitors,and transient
merchants to register. Because
'` gi merchants conduct their business only
This 14-page registration is a simple process and no between the hours of 8:00 a.m and 9:00
publication's text, numerous fee is charged,the courts have said that p.m.. A city,however,must be careful
drawings and tables explain requiring solicitors and otherwise not to be so restrictive with hours that
exempt peddlers and transient mer- the average working person would not
the growing conditions chants to register does not have an be home when called upon. In
needed for healthy trees and undue burden on interstate commerce addition,a city can prohibit anyone
the construction techniques or other constitutional rights. Registra- from calling attention to themselves by
tion does help a city track those the use of whistles,horns,loud noise
used to maintain those involved in such business practices and devices,amplifiers,and flashing lights.
conditions. Based on years reduces the risk of scam artists as the A city can also prohibit peddlers,
of university research,the city will know who each person is and solicitors,and transient merchants
information ispresented in how to contact them should a citizen from conducting business in such a
have a complaint. manner or in such a place as to create
an understandable and Green River ordinances. A Green traffic hazards or as to interfere with
practical style. River ordinance,named for the city the free flow of others on streets or
where it was first used and upheld, sidewalks.
declares it to be a nuisance for any Please contact the League if you
Request Item # FO-6135-AD person to go onto the property of have any questions about this topic or
another for the purpose of peddling would like a list of case citations and
Send $4.00 or soliciting,without first being invited other more detailed information.N----R
check or money order payable to do so by the land owner or tenant.
to University of Minnesota Such an ordinance is not applicable to Kent Sulem is the codification
and mail to: regular route deliveries,and probably attorney with the League of Minnesota
could not be enforced against other- Cities.
MES Distribution Center wise valid exercises of constitutional
University of Minnesota
1420 Eckles Avenue
St.Paul,MN 55108-6069
MN residents and businesses
add 7%,b sales tax.
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