HomeMy WebLinkAbout2002 - PUD agreement and transient merch. lic. OO
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CITY of ORONO
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1 1 Municipal Offices
! , ' Street Address: Mailing Address:
g0 2150 Kelley Parkway P.O. Box 66
Orono, MN 55356 Crystal Bay, MN 55323-0066
April 10, 2002
Cliff Often
Often Brothers Nursery
2350 West Wayzata Boulevard
Long Lake, MN 55356
Re: "Snack Wagon"
Dear Cliff:
We've reviewed the pertinent ordinances and PUD documents and have reached the following
conclusions regarding the sale of prepackaged foods, soft drinks and the like from a trailer on your
property:
1) The PUD Agreement specifically does not permit the sale of"candy,ice cream,soft drinks"
and"retail foods". I've highlighted the pertinent language in the attached excerpt page from
the Agreement. Therefore, the use can only be allowed if you gain approval for a PUD
amendment. This will take until the end of May at best, if you make application by noon on
April 17th, as we discussed.
2) The other option we looked at was the Transient Merchant License;however,the limitation
on such a license is that a transient merchant can only be licensed for a maximum of 10 days
per year, which does not meet your goal of operating through the end of May. The code
section (5.30) and the pertinent sections are highlighted. Also attached is a Transient
Merchant's License application, which requires Police Department approval but does not
have to go to Council.
My conclusion is that ultimately you would have to get a PUD amendment and operate the stand as
a part of your business rather than as a transient business.
Regarding the corn/produce stand during the late summer/fall harvest season, I have learned that
State law allows a farmer to set up a temporary sales stand just about anywhere he can get permission
to do so, to sell produce.
Please call if you have questions.
Sincerely,
Mike Gaffron d
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Planning Director
encl. 6 , l,'4"4 14Sts l C
3ftrc .S. 30 Telephone(952)249-4600 • Fax(952)249-4616
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Did You Know?
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Regulating Peddlers, Solicitors, and Transient Merchants
Cities have both statutory and common law authority to regulate peddlers, solicitors, and
transient merchants. Minnesota Statutes, sections 329.06 and 329.15, grant to cities the right
to regulate and license peddlers, solicitors, and transient merchants above and beyond the
statutory requirement for them to obtain county licenses. M.S. 412.221, subd.19, echoes the
provisions of chapter 329 for statutory cities. Most charters provide home rule charter cities
with the same type of explicit authority. M.S. 437.02 restates the authority to regulate and
license transient merchants in all cities. In addition, the courts have held that reasonable
regulations of peddlers, solicitors, and transient merchants are valid exercises of a city's
police powers in protecting the health, safety, and welfare of the public against an activity
that can become a nuisance. Unfortunately, while it is clear that cities can not totally ban
peddlers, solicitors and transient merchants, it is not clear how far cities can go in exercising
their regulatory authority over them.
Because this is a highly litigated matter, and because cities risk being held liable for federal
Section 1988 penalties if they adopt and try to enforce an unconstitutional regulation, cities
are strongly urged to involve their city attorneys before adopting any regulation. Further,
before a city decides it has to do something about the problem of peddlers, solicitors and
transient merchants, it should balance extent of its current problem or the problem that could
develop if such activities are left unregulated, against the risk of litigation over any attempted
enforcement of a regulation. For those cities that decide they have to do something about this
problem, the following suggestions should be carefully considered and applied to develop the
types of provisions that have either been upheld in court or that should be defendable if
challenged:
-- Define all terms. Peddlers, solicitors, and transient merchants are not recognized
by the courts as being the same. Peddlers, also known as hawkers, go from place to
place to sell goods that are delivered at the time of sale. Solicitors, also known as
canvassers, go from place to place to obtain orders for goods or serer that are to be
delivered or performed at a later time, or to collect donations. Transient merchants
are generally persons who sell their merchandise from a vehicle or other portable
shelter, or from an empty storefront, and who do not intend to remain in business at
any one location for more than a temporary period of time, usually know more than a
few weeks.
-- Exempt specific groups from the definitions. The courts have held that those
who make initial contacts with property owners or occupants for the purpose of
establishing a regular delivery route, as well as people making deliveries to customers
on their regular route, are not the type of nuisances intended to be defined and
regulated by peddler, solicitor, and transient merchant regulations. Likewise, sellers
at whole sale making direct sales to retailers of the items being sold, have also been
exempted from the definitions of peddlers, solicitors, and transient merchants.
-- Differentiate between "licensing" and "registering". Licensing is a formal
process involving an application , a fee, and the right of the council to grant or refuse
the license. A background check is also common before a license is granted.
Registration is the simple process of recording a person's name and any other
pertinent information the council believes necessary to ensure the good faith of the
registering party. No fees are involved with registrations and the whole process
should only take a few minutes instead of several days.
-- Only require licenses of peddlers and transient merchants. Even though the
statutes authorize the licensing of solicitors, caselaw dictates that they not be licensed.
The courts' concern is the impact of local regulations on interstate commerce.
Because peddlers and transient merchants have their goods in the State before they are
sold, the chain of interstate commerce has ended and licensing has no impact on it.
Solicitors, however, make their sales before obtaining their goods. If the goods are
subsequently shipped from another state, the chain of interstate commerce remains
unbroken. The courts have held that formal licensing procedures and fees for
solicitors involved in inter-state commerce amount to an undue burden on interstate
commerce and therefore violate the Federal Constitution. Solicitors of purely
Minnesota made products would appear eligible for licensing as they would not be
involved in inter-state commerce. Other cases, however, indicate that to require
different requirements for different persons conducting essentially the same business
for the purpose of controlling the nuisance created by that business amounts to
arbitrary, and thus unenforceable, regulations.
-- Provide Due Process. Licenses must be issued as quickly as possible and anyone
denied a license should be informed of the reason for denial and of his or her right to
appeal the decision by whatever appeals process the city has and ultimately in district
court. These provisions should be clearly spelled out in the city's ordinance.
-- Exempt certain peddlers and transient merchants from licensing. The
Minnesota State Constitution prohibits the licensing of farmers selling the products of
their own farms. The caselaw discussed above about imposing different requirements
on different people conducting essentially the same busMess, has made it clear that a
city also can not license anyone who re-sells any product purchased from an exempt
farmer. In addition, anyone who is going place to place for the primary purpose of
exercising his or her general State or Federal Constitutional rights should not be
licensed because, as with the commerce clause, licensing imposes undue burdens on
these constitutional rights. Most of the existing caselaw involves people who were
exercising First Amendment rights by distributing religious or political information and
pamphlets. The fact that a small fee or contribution may be requested for the
pamphlets has not been enough to remove these people's Constitutional protection.
The courts have indicated that these groups could lose their exemption for the sale of
books or other goods sold only for revenue raising purposes, or if professional fund
raisers were used.
It has been a common practice for cities to also exempt all non-profit organizations,
and some cities have inquired about exempting minors from their regulations. Such
practices, while of good intention, could put a city at risk. Such a provision could be
challenged on the grounds that it once again treats people differently for doing
essentially the same thing. While homeowners may not be as upset by a member of a
non-profit organization selling candy ringing their doorbells as they are by vacuum
cleaner salespeople, the courts have generally looked at the act of going place-to-place
itself as the nuisance, not the product being sold. If the sale itself is secondary to
expressing the belief of the group, then the constitutional rights exception would apply
and no special exception would apply. If the sale is primarily commercial in nature,
which the sale of candy etc. could easily be found to be, then upholding a
classification's exemption would depend on the city being able to convince the courts
that place-to-place sales by minors or non-profit groups is somehow different from
similar sales by adults and regular businesses and therefore is not a nuisance. Given
the tone of existing caselaw, it could be difficult to convince the courts of this
distinction. Of course, rather than license each person, one license could be granted
to the group.
-- Require solicitors and license-exempt peddlers and transient merchants to
register. Because registration is a simple process and no fee is charged, the courts
have said that requiring solicitors and otherwise exempt peddlers and transient
merchants to register does not have an undue burden on interstate commerce or other
constitutional rights. Registration does help a city track those involved in such
business practices and reduces the risk of scam artists as the city will know who each
person is and how to contact them should a citizen have a complaint.
-- Green River or modified Green River ordinances. A Green River ordinance,
named for the city where it was first used and upheld, declares it to be a nuisance for
any person to go onto the property of another for the purpose of peddling or
soliciting, without first being invited to do so by the land owner or tenant. Such an
ordinance is not applicable to regular route deliveries, and probably could not be
enforced against otherwise valid exercises of Constitutional rights. In addition, there
are questions as to the applicability of such an ordinance to non-residential settings,
although it probably is ok. Further, the nuisance created under a Green River
ordinance has been held to be a private nuisance meaning enforcement is basically up
to the affected land owner or tenant.
A modified Green River ordinance makes it a trespass to enter onto any property,
whether residential or not, for the purpose of soliciting or peddling, where the land
owner has posted a sign stating to the effect "No Peddlers or Solicitors". One
advantage of this provision is that it applies everywhere a posting is made, is
enforceable against all peddlers and solicitors, including those involved in interstate
commerce and those attempting to exercise Constitutional rights, as the prohibition is
actually made by the private land owner or tenant and not a governmental agency. In
fact, the provision should be enforced equally to avoid legal challenges of favoring
otherwise protected groups or persons. This approach also allows for criminal
prosecution of violators for trespass.
-- Other Considerations. In addition to the above, cities may also regulate the time,
place and manner of peddling, soliciting, and other transient selling. For example, a
city can require that all peddlers, solicitors, and transient merchants conduct their
business only between the hours of 8:00 a.m 9:00 p.m.. A city, however, must be
careful not to be so restrictive with hours that the average working person would not
be home when called upon by a solicitor or peddler. In addition, a city can prohibit
peddlers, solicitors, and transient merchants from calling attention to themselves by
the use of whistles, horns, loud noise devices,amplifiers, and flashing lights. A city
can also prohibit peddlers, solicitors, and transient merchants from conducting
business in such a manner or in such a place as to create traffic hazards or as to
interfere with the free flow of others on streets or sidewalks.
Please contact the League's Information and Research Services department, or the League's
Codification Attorney, if you have any questions about this topic or would like a list of case
citations and other more detailed information.
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CHAPTER 113: PEDDLERS AND SOLICITORS
Section
113.01 Definitions
113.02 Exceptions to definitions
113.03 Licensing; exemptions
113.04 License ineligibility
113.05 License suspension and revocation
113.06 License transferability
113.07 Registration
113.08 Prohibited activities
113.09 Exclusion by placard
§ 113.01 DEFINITIONS.
Except as may otherwise be provided or clearly implied by context, all terms shall be given their
commonly accepted definitions. For the purpose of this chapter, the following definitions shall apply
unless the context clearly indicates or requires a different meaning.
PEDDLER. A person who goes from house-to-house,door-to-door,business-to-business,street-to-
street, or any other type of place-to-place, for the purpose of offering for sale, displaying or exposing
for sale, selling or attempting to sell, and delivering immediately upon sale, the goods, wares, products,
merchandise or other personnel property that the person is carrying or otherwise transporting. The term
peddler shall mean the same as the term hawker.
PERSON. Any natural individual, group, organization, corporation, partnership or association.
As applied to groups, organizations, corporations, partnerships and associations, the term shall include
each member, officer, partner, associate, agent or employee.
REGULAR BUSINESS DAY. Any day during which the city hall is normally open for the purpose
of conducting public business. Holidays defined by state law shall not be counted as regular business
days.
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12 Minnesota Basic Code - Business Regulations
SOLICITOR. A person who goes from house-to-house, door-to-door, business-to-business, street-
to-street, or any other type of place-to-place, for the purpose of obtaining or attempting to obtain orders
for goods, wares, products, merchandise, other personal property or services of which he or she may
be carrying or transporting samples, or that may be described in a catalog or by other means, and for
which delivery or performance shall occur at a later time. The absence of samples or catalogs shall not
remove a person from the scope of this provision if the actual purpose of the person's activity is to obtain
or attempt to obtain orders as discussed above. The term shall mean the same as the term "canvasser."
TRANSIENT MERCHANT. A person who temporarily sets up business out of a vehicle, trailer,
boxcar, tent, other portable shelter, or empty store front for the purpose of exposing or displaying for
sale, selling or attempting to sell, and delivering, goods, wares,products,merchandise or other personal
property and who does not remain or intend to remain in any one location for more than 14 consecutive
days.
§ 113.02 EXCEPTIONS TO DEFINITIONS.
(A) For the purpose of the requirements of this chapter, the terms PEDDLER, SOLICITOR, and
TRANSIENT MERCHANT shall not apply to any person selling or attempting to sell at wholesale any
goods, wares, products, merchandise or other personal property to a retailer of the items being sold by
the wholesaler. The terms also shall not apply to any person who makes initial contacts with other
people for the purpose of establishing or trying to establish a regular customer delivery route for the
delivery of perishable food and dairy products such as baked goods and milk, nor shall they apply to any
person making deliveries of perishable food and dairy products to the customers on his or her established
regular delivery route.
(B) In addition, persons conducting the type of sales commonly known as garage sales, rummage
sales, or estate sales, as well as those persons participating in an organized multi-person bazaar or flea
market, shall be exempt from the definitions of PEDDLERS, SOLICITORS, and TRANSIENT
MERCHANTS, as shall be anyone conducting an auction as a properly licensed auctioneer, or any
officer of the court conducting a court-ordered sale. Exemption from the definitions for the scope of this
chapter shall not excuse any person from complying with any other applicable statutory provision or
local ordinance.
§ 113.03 LICENSING; EXEMPTIONS.
(A) County license required. No person shall conduct business as a peddler, solicitor or transient
merchant within the city limits without first having obtained the appropriate license from the county as
required by M.S. Ch. 329 as it may be amended from time to time.
(B) City license required. Except as otherwise provided for by this chapter, no person shall conduct
business as either a peddler or a transient merchant without first having obtained a license from the city.
Solicitors need not be licensed, but are still required to register pursuant to § 113.07.
Peddlers and Solicitors 13
(C) Application. Application for a city license to conduct business as a peddler or transient
merchant shall be made at least 14 regular business days before the applicant desires to begin conducting
business. Application for a license shall be made on a form approved by the City Council and available
from the office of the City Clerk. All applications shall be signed by the applicant. All applications
shall include the following information:
(1) Applicant's full legal name.
(2) All other names under which the applicant conducts business or to which applicant officially
answers.
(3) A physical description of the applicant(hair color,eye color,height,weight,distinguishing
marks and features, and the like).
(4) Full address of applicant's permanent residence.
(5) Telephone number of applicant's permanent residence.
(6) Full legal name of any and all business operations owned, managed or operated by
applicant, or for which the applicant is an employee or agent.
(7) Full address of applicant's regular place of business (if any).
(8) Any and all business related telephone numbers of the applicant.
(9) The type of business for which the applicant is applying for a license.
(10) Whether the applicant is applying for an annual or daily license.
(11) The dates during which the applicant intends to conduct business, and if the applicant is
applying for a daily license, the number of days he or she will be conducting business in the city
(maximum 14 consecutive days).
(12) Any and all addresses and telephone numbers where the applicant can be reached while
conducting business within the city, including the location where a transient merchant intends to set up
business.
(13) A statement as to whether or not the applicant has been convicted within the last five years
of any felony, gross misdemeanor, or misdemeanor for violation of any state or federal statute or any
local ordinance, other than traffic offenses.
(14) A list of the three most recent locations where the applicant has conducted business as a
peddler or transient merchant.
(15) Proof of any requested county license.
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14 Minnesota Basic Code - Business Regulations
(16) Written permission of the property owner or the property owner's agent for any property
to be used by a transient merchant.
(17) A general description of the items to be sold or services to be provided.
(18) All additional information deemed necessary by the City Council.
(19) The applicant's driver's license number or other acceptable form of identification.
(20) The license plate number, registration information and vehicle identification number for
any vehicle to be used in conjunction with the licensed business and a description of the vehicle.
(D) Fee. All applications for a license under this chapter shall be accompanied by the fee
established in the Ordinance Establishing Fees and Charges, adopted pursuant to § 30.11, as it may be
amended from time to time.
(E) Procedure. Upon receipt of the completed application and payment of the license fee, the City
Clerk, within two regular business days, must determine if the application is complete. An application
is determined to be complete only if all required information is provided. If the City Clerk determines
that the application is incomplete, the City Clerk must inform the applicant of the required necessary
information that is missing. If the application is complete, the City Clerk must order any investigation,
including background checks, necessary to verify the information provided with the application. Within
ten regular business days of receiving a compete application the City Clerk must issue the license unless
there exist grounds for denying the license under § 113.04, in which case the Clerk must deny the
license. If the City Clerk denies the license, the applicant must be notified in writing of the decision, the
reason for denial, and of the applicant's right to appeal the denial by requesting, within 20 days of
receiving notice of rejection, a public hearing before the City Council. The City Council shall hear the
appeal within 20 days of the date of the request. The decision of the City Council following the public
hearing can be appealed by petitioning the Minnesota Court of Appeals for a Writ of Certiorari.
(F) Duration. An annual license granted under this chapter shall be valid for one calendar year
from the date of issue. All other licenses granted under this chapter shall be valid only during the time
period indicated on the license.
(G) License exemptions.
(1) No license shall be required for any person to sell or attempt to sell, or to take or attempt
to take orders for, any product grown, produced, cultivated, or raised on any farm.
(2) No license shall be required of any person going from house-to-house, .door-to-door,
business-to-business, street-to-street, or other type of place-to-place when the activity is for the purpose
of exercising that person's State or Federal Constitutional rights such as the freedom of speech, press,
religion and the like, except that this exemption may be lost if the person's exercise of Constitutional
rights is merely incidental to a commercial activity.
Peddlers and Solicitors 15
(3) Professional fundraisers working on behalf of an otherwise exempt person or group shall
not be exempt from the licensing requirements of this chapter.
Penalty, see § 10.99
§ 113.04 LICENSE INELIGIBILITY.
The following shall be grounds for denying a license under this chapter:
(A) The failure of the applicant to obtain and show proof of having obtained any required county
license.
(B) The failure of the applicant to truthfully provide any of the information requested by the city
as a part of the application, or the failure to sign the application, or the failure to pay the required fee
at the time of application.
(C) The conviction of the applicant within the past five years from the date of application for any
violation of any federal or state statute or regulation, or of any local ordinance, which adversely reflects
on the person's ability to conduct the business for which the license is being sought in an honest and
legal manner. Those violations shall include but not be limited to burglary, theft, larceny, swindling,
fraud, unlawful business practices, and any form of actual or threatened physical harm against another
person.
(D) The revocation within the past five years of any license issued to the applicant for the purpose
of conducting business as a peddler, solicitor or transient merchant.
(E) The applicant is found to have a bad business reputation. Evidence of a bad business reputation
shall include, but not be limited to, the existence of more than three complaints against the applicant with
the Better Business Bureau, the Attorney General's Office, or other similar business or consumer rights
office or agency, within the preceding 12 months, or three complaints filed against the applicant within
the preceding five years.
§ 113.05 SUSPENSION AND REVOCATION.
(A) Generally. Any license issued under this section may be suspended or revoked at the discretion
of the City Council for violation of any of the following:
(1) Fraud, misrepresentation or incorrect statements on the application form.
(2) Fraud,misrepresentation or false statements made during the course pf the licensed activity.
(3) Conviction of any offense for which granting of a license could have been denied under
§ 113.04.
16 Minnesota Basic Code - Business Regulations
(4) Violation of any provision of this chapter.
(B) Multiple persons under one license. The suspension or revocation of any license issued for the
purpose of authorizing multiple persons to conduct business as peddlers or transient merchants on behalf
of the licensee shall serve as a suspension or revocation of each authorized person's authority to conduct
business as a peddler or transient merchant on behalf of the licensee whose license is suspended or
revoked.
(C) Notice. Prior to revoking or suspending any license issued under this chapter, the city shall
provide the license holder with written notice of the alleged violations and inform the licensee of his or
her right to a hearing on the alleged violation. Notice shall be delivered in person or by mail to the
permanent residential address listed on the license application, or if no residential address is listed, to
the business address provided on the license application.
(D) Public hearing. Upon receiving the notice provided in division(C)of this section, the licensee
shall have the right to request a public hearing. If no request for a hearing is received by the City Clerk
within ten regular business days following the service of the notice, the city may proceed with the
suspension or revocation. For the purpose of mailed notices, service shall be considered complete as
of the date the notice is placed in the mail. If a public hearing is requested within the stated timeframe,
a hearing shall be scheduled within 20 days from the date of the request. Within three regular business
days of the hearing, the City Council shall notify the licensee of its decision.
(E) Emergency. If, in the discretion of the City Council, imminent harm to the health or safety of
the public may occur because of the actions of a peddler or transient merchant licensed under this
chapter, the City Council may immediately suspend the person's license and provide notice of the right
to hold a subsequent public hearing as prescribed in division (C) of this section.
(F) Appeals. Any person whose license is suspended or revoked under this section shall have the
right to appeal that decision in court.
Penalty, see § 10.99
§ 113.06 TRANSFERABILITY.
No license issued under this chapter shall be transferred to any person other than the person to
whom the license was issued.
Penalty, see § 10.99
§ 113.07 REGISTRATION.
All solicitors, and any person exempt from the licensing requirements of this -chapter under •
§ 113.03, shall be required to register with the city. Registration shall be made on the same form
required for a license application, but no fee shall be required. Immediately upon completion of the
Peddlers and Solicitors 17
registration form, the City Clerk shall issue to the registrant a Certificate of Registration as proof of the
registration. Certificates of Registration shall be non-transferable.
Penalty, see § 10.99
§ 113.08 PROHIBITED ACTIVITIES.
No peddler, solicitor or transient merchant shall conduct business in any of the following manners:
(A) Calling attention to his or her business or items to be sold by means of blowing any horn or
whistle, ringing any bell, crying out, or by any other noise, so as to be unreasonably audible within an
enclosed structure.
(B) Obstructing the free flow of either vehicular or pedestrian traffic on any street, alley, sidewalk
or other public right-of-way.
(C) Conducting business in a way as to create a threat to the health, safety and welfare of any
individual or the general public.
(D) Conducting business before 7:00 a.m. or after 9:00 p.m.
(E) Failing to provide proof of license or registration, and identification, when requested; or using
the license or registration of another person.
(F) Making any false or misleading statements about the product or service being sold, including
untrue statements of endorsement. No peddler, solicitor or transient merchant shall claim to have the
endorsement of the city solely based on the city having issued a license or certificate of registration to
that person. •
(G) Remaining on the property of another when requested to leave,or to otherwise conduct business
in a manner a reasonable person would find obscene, threatening, intimidating or abusive.
Penalty, see § 10.99
§ 113.09 EXCLUSION BY PLACARD.
No peddler, solicitor or transient merchant, unless invited to do so by the property owner or tenant,
shall enter the property of another for the purpose of conducting business as a peddler, solicitor or
transient merchant when the property is marked with a sign or placard at least four inches long and four
inches wide with print of at least 48 point in size stating "No Peddlers, Solicitors or Transient
Merchants," or "Peddlers, Solicitors, and Transient Merchants Prohibited," or other comparable
statement. No person other than the property owner or tenant shall remove, deface or-otherwise tamper
with any sign or placard under this section.
Penalty, see § 10.99