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HomeMy WebLinkAboutORD 2005-13 - Itinerant MerchantORDINANCENO. 14005�13 ORDINANCEAN GEORGETOWN., TEXAS AMENDING THE CODEORDINANCES TO ADD NEW CHAPTER 6.50 PERTAINING PENALTIES;OF "ITINERANT MERCHANTS"O PROVIDING FOR FINES AND SEVERABILITY ESTABLISHING AN EFFECTIVE D. WHEREAS, the City of Georgetown finds that it needs an ordinance relating to the fair and equitable regulation of Itinerant Merchants; and WHEREAS, the City of Georgetown finds that reasonable regulation of vending on public and private ways is necessary to protect the public health, safety, and welfare of the citizens of the City of Georgetown; and WHEREAS, the City of Georgetown finds that it wants to provide economic development opportunities to small entrepreneurs and to promote stable Itinerant Merchants who will enrich the City's ambiance and be assets to public security; and WHEREAS, the City of Georgetown further finds that it is desirable to develop an itinerant vending system that will enhance the overall appearance and environment along public streets, pedestrian ways, and other public and private properties. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GEORGETOWN, TEXAS THAT: SECTION 1: The facts and recitations contained in the preamble of this ordinance are hereby found and declared to be true and correct, and are incorporated by reference herein and expressly made a part thereof, as if copied verbatim. The City Council hereby finds that this ordinance implements the following Century Plan Elements: 4.0 The City provides for the safety of its citizens and supports the responsive delivery of coordinated services by the City and other public agencies. 4.7 There is trust and harmony between the City's public safety providers and all segments of the community. 4.8 Georgetown is effective at resolving issues related to crime, disorder, and fear of crime. The City Council further finds that the enactment of this ordinance is not inconsistent or in conflict with any other Century Plan Policies, as required by section 2.03 of the Administrative Chapter of the Policy Plan, Ordinance No.200543 Itinerant Merchants Page 1 of 8 SECTION 2: Chapter 6.50 "Itinerant Merchants" is hereby added to the Code of Ordinances as follows: Sec. 6.50.010 Definitions. When used in this Chapter, the following words, terms, and phrases, and their derivations, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning: A. Commodity means goods, wares, or merchandise including but not limited to: fruits, vegetables, farm products or provisions, dairy products, pets, animals, fish, game, poultry, meat, plants, flowers, appliances, wearing apparel, jewelry, ornaments, art work, cosmetics and beauty aids, health products, medicines, household or garden items or furnishings, food of any kind, whether or not for immediate consumption, confections or drinks. Nothing in this Chapter shall allow the exhibiting, display or sale of any merchandise that is indecent, profane, obscene, or vulgar. B. Interstate Commerce means soliciting, selling, or taking orders, or offering to take orders, for any Commodity or services which, at the time the order is taken, are in or will be produced in any federal district or territory, any commonwealth, or any state other than the State of Texas, and shipped or introduced into this city in the fulfillment of such orders. C. Itinerant Merchant means any person who exhibits, displays, sells or offers for sale any "Commodity" from a "Stand" located on public or private property or on the "Streets" of the City of Georgetown. This definition does not include: (i) a door-to-door "peddler" or "solicitor" as defined in Sec. 6.16.010(A) or (B) of the City Code of Ordinances, (ii) activities authorized by an "Event Permit" issued pursuant to Chapter 12.24 of the City's Code of Ordinances; or (iii) "Temporary Uses" permitted pursuant to Section 5.04 of the City's Unified Development Code. D. Stand means the ground, or any place, showcase, table, bench, rack, handcart, pushcart, stall, booth, vehicle or any other fixture or device or thing that is used for the purpose of displaying, exhibiting, carrying, transporting, storing, selling or offering for sale any Commodity. E. Street means all areas legally open to public use as public streets, and sidewalks, roadways, highways, parkways, alleys and any other public way. Sec. 6.50.020 Permit; Fee. A. Application. It shall be unlawful for any person to sell or attempt to sell any Commodity by means of vending such Commodity upon any Street in the city, or any public or private property in the city, without first securing a permit and paying the fee therefore. At least thirty (30) days prior to the initial contemplated sale or exhibit, the Itinerant Merchant must submit a completed application that includes the following: Ordinance No.2005-13 Itinerant Merchants Page 2 of 8 (1) full name and address of the Itinerant Merchant, including current telephone number; (2) proof of identity, including date of birth, a copy of a current driver's license and a recent photographic likeness of the applicant's face; (3) the location of his principal office and place of business; (4) if he is employed by another, the names, dates of birth, and addresses of the person, firm, association, organization, company or corporation; (5) the recent criminal history (previous five years) pertaining to any prior conviction of a felony or misdemeanor involving theft, fraud, bribery or perjury for the applicant and/or the owners of the entity making the application, as well as for all workers, helpers, employees, assistants, agents or other persons who will be on the site; (6) if a motor vehicle is to be used, a description of the vehicle together with the vehicle identification number and license plate number; and (7) if the vending is to occur on private property, written proof of the owner's permission must accompany the application, and must include a statement from the owner as to the exact dates and times that the applicant is allowed to conduct itinerant merchant activities on the owner's property. In addition, the application must include a statement detailing the kind and character of the Commodity to be sold, offered for sale or exhibited. Nothing in this Chapter shall allow the exhibiting, display or sale of any merchandise that is indecent, profane, obscene, or vulgar. B. Permit. Upon receipt of a completed application and fees, the City's Events Committee shall review the application and consider the issuance of a permit authorizing the sale, exhibit for sale, offer for sale, or exhibit for the purpose of taking orders for the sale thereof, in the city for a period not to exceed ninety (90) days. The permit is not transferable or assignable. The permit must be conspicuously displayed at all times during the operation of the vending business. A person commits an offense under this Chapter if the person fails to display the Itinerant Merchant permit to a peace officer or code enforcement officer during the time the person is operating at the permitted location. C. Permit Application Fee. The permit application shall be accompanied by fees for each vehicle or Stand used in vending in accordance with the following fee schedule: 7 day permit $100 fee 30 day permit $500 fee 90 day permit $700 fee No fee shall be charged to any bona fide certified charitable, religious, educational, or philanthropic organization, or persons engaged in interstate commerce. D. Reasons for Denial of Permit Application. Unless the City Council has approved a waiver request pursuant to Section 6.50.040(B), the Events Committee may not issue a permit under this section unless the City's Development Engineer (or his designee) has reviewed the request for a permit and determines that the proposed location: Ordinance No.2005-13 Itinerant Merchants Page 3 of 8 (1) has been approved by the Texas Department of Transportation Engineer if the location involves a right-of-way covered by a state -city maintenance agreement; (2) has been the site of less than three (3) motor vehicle accidents during the 12 - month period immediately preceding the date of the application; (3) has a turnout, curbside parking, or other parking space available that may be used to transact a sale; (4) is not expected to cause excessive vehicle delays, vehicle surges, or lane changes; (5) has customary street traffic volumes that do not significantly impede the flow of vehicular traffic; (6) complies with the provisions of Section 552.007 (Solicitation by Pedestrians) of the Texas Transportation Code and Section 42.03 (Obstructing Highway or Other Passageway) of the Texas Penal Code; (7) is not expected to cause or significantly contribute to Street congestion or make access to abutting public or private property unreasonable inconvenient or hazardous; or (8) is not expected to impede the flow of Street traffic to make the use of the Street unreasonably inconvenient or hazardous. Further, the Events Committee may consider whether other permits are issued for that location for the same time period(s), and whether the applicant failed to pay any outstanding debts fines, or fees owed to the City or a Consumer. Sec. 6.50.030 Renewals. A permit may be renewed, provided an application for renewal and permit fees are received by the City no later than the expiration date of the current permit. Any application received after that date shall be processed as a new application. The Events Committee shall review each application for renewal, and upon determining that the applicant is in full compliance with the provisions of this Chapter, shall issue a new permit. Sec. 6.50.040 Locational and other Regulations and Restrictions. A. The following rules and regulations shall be complied with by each Itinerant Merchant: It shall be unlawful for any Itinerant Merchant to sell or attempt to sell any Commodity: (1) By means of any outcry, sound, speaker or amplifier, or any instrument, or device which can be heard for a distance greater than three hundred feet; (2) In any manner that distracts drivers, such as by displaying fluttering, undulating, rotating, spinning or waving devices, whether or not such devices are for sale; (3) Within 100 feet of any driveway entrance to a police or fire station; (4) Within 500 feet of any Street intersection or pedestrian crosswalk; (5) Within 150 feet of any driveway, loading zone or taxi stop; (6) Within 500 feet of another vending location assigned to another vendor on a public Street; (7) Within 1,000 feet of a public park; Ordinance No.2005-13 Itinerant Merchants Page 4 of 8 (8) Within 150 feet of a building entrance or exit or, in the case of a hotel or motel, within 500 feet of building entrances or exits; (9) Within 1,000 feet of a hospital, college, university, elementary school, middle school or high school; (10) In such a way that pedestrian or motor vehicle traffic is obstructed; (11) In such way that obstructs traffic signals or regulatory signs; (12) (a) For the period that is two years after the effective date of the ordinance enacting this Chapter 6.50: Within any areas other than those designated as C-1 (Local Commercial); C-2 (Downtown Commercial); C-3 (General Commercial; or IN (Industrial) on the Official Zoning Map for the City of Georgetown as the same may be amended from time to time. Notwithstanding the foregoing provision of this subsection 12(a), the provisions of subsection 12(b) shall apply to property that is developed during the period that is after the effective date, but before the date that is two (2) years after the effective date, of the ordinance enacting this Chapter 6.50; (b) For the period commencing on that date that is two (2) years after the effective date of the ordinance enacting this Chapter 6.50: Within any areas other than those designated as C-3 (General Commercial); or IN (Industrial) on the Official Zoning Map for the City of Georgetown, as the same may be amended from time to time. (13) Having signage that is not in compliance with the provisions of Section 10 of the Unified Development Code; or (14) In such a place or in a way as would restrict or interfere with the ingress or egress of the abutting property owner or tenant, create a nuisance, increase traffic congestion or delay, constitute a hazard to traffic, life or property, or obstruct adequate access to city vehicles, including emergency and sanitation vehicles. B. The City Council may grant a waiver from the standards set forth in Section 6.50.040(A) or 6.50.020(D) as set forth below. (1) Applicants requesting such a waiver must submit a written Waiver Application Request to the City Council at least thirty (30) days prior to the initial contemplated sale or exhibit that includes: i. all of the information included in Section 6.50.020(A) (relating to permit application requirements); ii. a clear statement of which provision(s) of Section 6.50.040(A) or Section 6.50.020(D) is requested to be waived; iii. a clear statement of the reasons why the waiver(s) is requested; iv. a non-refundable waiver application fee of $100.00. (2) The Events Committee must submit a written Report to City Council that addresses the factors and criteria set forth in Section 6.50.020(D) (relating to reasons for permit denial) as they relate to each Waiver Application Request and the alternative location proposed by the applicant sell or attempt to sell a Commodity. Ordinance No.2005-13 Itinerant Merchants Page 5 of 8 (3) After considering the Waiver Application Request and the Report of the Events Committee, the City Council may grant the requested waiver; deny the waiver; or grant the waiver subject to certain conditions related to the issues of public health and safety, including but not limited to restrictions on the dates or hours of operation, the duration of the authorization, the type of Stand; special traffic and parking restrictions, etc. However, if granted or conditionally granted, the Waiver Application Request shall only be valid for a period of three (3) calendar months. (4) An applicant may re -apply for one (1) extension of the three (3) month period by submitting a Waiver Request Renewal Application containing the same information as described above (except that the fee for renewals shall be $50.00). The Events Committee shall prepare a Report as described above, and shall include any specific information relating to the effect on public health and safety resulting from the operation under the original terms of the waiver. See. 6.50.050 Hours When Itinerant Vending Prohibited. It shall be unlawful for any Itinerant Merchant to engage in the business of vending at any time except between eight a.m and sunset. Sec. 6.50.060 Consumer Right to Cancel Transaction. A. A consumer shall have a right to cancel a transaction with an Itinerant Merchant until the third business day after the day on which the transaction occurred. All Itinerant Merchants shall provide a dated and itemized receipt along with written notice to the consumer of the right to cancel a transaction. The notice shall inform the consumer that, should he choose to return the Commodity, he must notify the Itinerant Merchant in writing by mail or other acceptable means no later than midnight of the third business day after the day on which the transaction occurred. If the consumer chooses to mail the cancellation notice, the letter must be postmarked by the third business day after the transaction to be timely. If the itinerant vendor fails to give the consumer a current address, facsimile telephone number or electronic mail address, the consumer's right to cancel the transaction is extended another 10 business days. B. Actual return of the Commodity can be arranged at the convenience of both parties. If both parties agree, the consumer may ship the Commodity to the Itinerant Merchant and the Itinerant Merchant shall pay all shipping costs involved. The Itinerant Merchant must reimburse the consumer the full purchase price of the Commodity and, if applicable, any shipping charges upon return of the Commodity. It shall be unlawful for any Itinerant Merchant to refuse to cancel the transaction when the consumer provides timely notice of his intent to return the Commodity. In addition, it is unlawful for the Itinerant Merchant not to reimburse the consumer. C. The Itinerant Merchant shall also prominently display a notice of the consumer's right to cancel a transaction at the vending business site. Sec. 6.50.070 Violation --Penalty. An offense under this Chapter is a Class C misdemeanor and may include a fine not exceeding more than allowed by law, together with the possible revocation or suspension of the Ordinance No.2005-13 Itinerant Merchants Page 6 of 8 merchant's permit. In addition, a peace officer may impound a vehicle used for the sale of a Commodity placed, parked, or maintained on a Street in violation of this article. Sec. 6.50.070 Suspension and Revocation of Permit. A. In addition to the penalties contained herein, any permit issued under this Ordinance may be suspended or revoked for any of the following reasons: (1) Fraud, misrepresentation or knowingly make a false statement in the application for the permit; (2) Fraud, misrepresentation or knowingly make a false statement in the course of carrying on the business of vending; (3) Refusing to fully reimburse consumer if provided with timely notice of the consumer's intent to cancel the transaction and return of the Commodity; (4) Conducting the business of vending in any manner contrary to the conditions of the permit or this Chapter; (5) Conducting the business of vending in such a manner as to create a public nuisance, cause a breach of peace, constitute a danger to the public health, safety, welfare or morals, or interfere with the rights of abutting property owners; or (6) Violating any other applicable City Code provision. B. The Events Committee shall provide written notice of the suspension or revocation in a brief statement setting forth the complaint, the grounds for suspension or revocation, and notifying the permittee of his right to appeal. Such notice shall be mailed to the address on the permittee's application by certified mail, return receipt requested, or presented in person or via hand delivery to the permittee. C. If the City revokes a vending permit, the fee already paid shall be forfeited. A person whose permit has been revoked under this Chapter may not apply for a new permit for a period of one (1) year from the date that the revocation took effect. Sec. 6.50.080 Appeals. A. If the Events Committee denies the issuance of a permit, suspends or revokes a permit, or orders the cessation of any part of the business operation conducted under the permit, the aggrieved party may appeal the decision to the City Manager or his designee within three (3) business days of the action. If a request for an appeal is not made within three (3) business days, the decision becomes final. B. The filing of an appeal stays the action of the Events Committee in suspending or revoking a permit or any part of the business operation being conducted under such permit until the City Manager or his designee makes a final decision, unless the Events Committee determines that continued operation of the vending business constitutes an imminent and serious threat to the public health or safety, in which case the City shall take or cause to be taken such action as is necessary to immediately enforce the suspension, revocation or order. SECTION 3: This ordinance shall be and is hereby declared to be cumulative of all other ordinances of the City of Georgetown, and this ordinance shall not operate to repeal or affect any Ordinance No.2005-13 Itinerant Merchants Page 7 of 8 of such other ordinances, except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this ordinance, in which event such conflicting provisions, if any in such other ordinance or ordinances are hereby superseded. SECTION 4: If any provision of this ordinance or application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the other provisions, or application thereof, of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are hereby declared to be severable. SECTION 5: The Mayor is hereby authorized to sign this ordinance and the City Secretary to attest. This ordinance shall become effective and be in full force and effect in accordance with the provisions of the Charter of the City of Georgetown. PASSED and APPROVED on First Reading on the 81h day of February, 2005. PASSED and ADOPTED on Second Reading on the 81h day of March, 2005, ATTES Sandra D. Lee, City AS TO FORM: City Attorney Ordinance No.2005-13 Itinerant Merchants Page 8 of 8 ,.P. CITY OF„GEORGETOWN, TEXAS elon,