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1979L4- PERMITS FOR PEDDLERS, SOLICITORS AND ITINERANT MERCHANTS ORDINANCE NO. 79-1. - Jf AN ORDINANCE SETTING PROCEDURES FOR REGISTRATION AND PERMITS FOR PEDDLERS, SOLICITORS AND ITINERANT MERCHANTS; SETTING FEES, EXCLUSIONS AND PENALTIES; REPEALING ALL ORDINANCES IN CONFLICT. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS, that SECTION 1 - In General A. Purpose of ordinance, This is and shall be deemed an exercise of the police power of the state and of the city for the public safety, comfort, convenience and protection of the city and citizens thereof. B. Penalty for violation, Any person who shall violate any of the prOV1Slons of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Section 1-8 of the Code of Ordinances of the City of Schertz, Texas. SECTION 2 - REGISTRATION A. Definition. The term "interstate commerce" as used in this ordinance shall mean soliciting, selling or taking orders for, or offering to take orders for any goods, wares, merchandise, magazines, or other things of value, which at the time the order is taken are in another state or will be produced in another state and shipped into this city in fulfillment of such order, B. Required of solicitors of orders in interstate commerce. It shall be unlawful for any person engaged in interstate commerce to go from house to house or place to place in the city soliciting, taking orders for, or offering to take orders for any goods, wares, merchandise, maga- zines or other things of value without having first registered with the city manager, C. Information required. Each person applying for registration under this ordinance within the city shall make application on a form to be supplied by the city manager and which shall include the following information: (1 ) (2) (3) (4) (5) The name, permanent address and local address, if any, of the registrant, The name and address of the person, firm or corporation that the regis- trant represents or for whom or through whom orders are to be solicited, The nature of the goods, merchandise, or other things of value which are to be offered for sale, or for which orders are to be solicited. Whether the registrant, upon sale or oder, shall demand, receive, or accept payment or deposit of money in advance of final delivery. The period of time during which the registrant wishes to solicit or sell in the city. D. Procedure; investigation fee, Each registrant shall submit the information as required together with an investigation fee of five dollars ($5,00) which will be used to help defray the expense of investigating the registrant to prove his identity and to verify that such registrant represents a bona fide person, firm or corpora- tion. Such fee shall be paid at the time of registration and shall not be the taking or orders for the sale thereof, any goods, wares, merchandise, services, photographs, magazines or any other thing of value without having a permit so to do, C. Application; fee, Any person desiring a permit as required by this ordinance shall make written application therefor on forms to be furnished by the City Manager. Such application shall include the following information: (4) The name and permanent address of the person, firm or corporation applying for a permit The nature of the goods, merchandise, services or things of value which the applicant proposes to sell or offer for sale. Whether or not the applicant, upon sale or order, shall demand, receive, or accept payment or deposit of money in advance of final delivery. If the applicant is a corporation, it shall file with its application a certified copy of its charter, and if it is not incorporated under Texas Law, it shall file a certified copy of its present permit to do business in the state, Each application shall be accompanied with an application fee of five dollars ($5,00) which is not returnable and may not be prorated. (1) (2) (3) (5) D, Performance Bond. If the application shall show that the applicant intends to demand, receive or accept payment or deposit of money in advance of final delivery, the applicant shall accompany his application with a surety bond in the sum of five hundred dollars ($500,00), Such bond shall be executed with the applicant as principal and by a surety company licensed to do business in the state. A five bundred dollar ($500.00) cash bond may be posted in lieu of a surety bond. E. Investigation. Upon completion of the ap~lication, it shall be the responsibility of the chief of police to investigate the applicant to determine if said applicant is a bona fide person, firm, or corporation licensed to do business in the state and if said applicant is a reputable person, firm or corporation. The chief of police shall make a report to the City Manager of his findings thereof. F. Issuance; fee The City t1anager shall issue to any applicant who has complied with all the requirements of this article, a permit authorizing such applicant to engage in the business of an itinerant merchant. Such permit shall be issued after the applicant has paid, in advance, a fee of fifteen dollars ($15,00) for each agent or employee engaged in the business of the applicant, G, Nontransferable and nonassignable; scope. A permit issued under this ordinance shall not be transferable or assignable and shall give no other person any authority to transact any business in the city as an itinerant merchant, or to act as the agent or employee thereof, H. Exclusions from applicabl1ity of ordinance. The provisions of this ordinance shall not apply to commercial agents dealing with local business establishments, vendors, or farm produce or agricultural products when such produce or products are produced by the vendor himself, the sale of goods, wares, merchandise or other things of value by charitable organizations, or to persons engaged in interstate commerce as defined in Section 2 A. refundable. Registration with the city shall be valid for not mor'e than thirty (30) days, at the expiration of which registration must be refiled according to the provisions of this ordinance. SECTION 3 - Peddlers' and Solicitors' Permits. A. Requi red, It shall be unlawful for any person to go from house to house or from place to place within the city peddling, selling, soliciting, or taking orders for, or offering to seel or take orders for any services, goods, merchandise, in- cluding photographs, magazines or books without first obtaining a permit so to do. B. Application, Each applicant for a permit required by this ordinance shall be in writing on a form to be furnished by the city manager. Required information shall include the following: Name of the applicant with his permanent address and local address, if any. The age and sex of the applicant. The name and address of the person, firm or corporation the applicant represents. The nature of the services, goods or merchandise the applicant intends to sell or offer for sale. The names of any cities where the applicant has worked in the previous thirty (30) days. The license number of the vehicle, if any, which the applicant intends to use in the course of his work while in the city. Whether the applicant has ever been convicted of a felony or mis- demeanor involving moral turpitude. Whether the applicant, upon sale or drder, shall demand, receive, or accept payment or deposit in advance of final delivery. C. Investigation; fee, (1) (2) (3) (4 ) (5) (6) (7) (8) It shall be the duty of the chief of police to investigate each applicant under this ordinance and to make a report thereof to the city manager before issuance of such permit. An application fee of five dollars ($5.00) shall be paid by each applicant which shall not be prorated or returned to the applicant, Such fee shall be paid at the time application is made. D. Performance Bond. If the application shows that the applicant intends to demand, receive, or accept payment or deposit of money in advance of final delivery, such appli- cant shall accompany his application with a bond in the sum of five hundred dollars($500,OO) executed by such applicant as principal and by a surety company licensed to do business in the state, or a cash bond in the same amount. Where two (2) or more applicants represent the same person, firm or corporation, one bond in the sum of five hundred dollars ($500.00) executed by such applicants as principal and a surety company licensed to do business in the state, or a cash bond of the same amount shall be sufficient. E. Issuance or denial. It shall be the duty of the city manager to issue or refuse to issue a permit applied for under this ordinance not later than two (2) weeks from the time the application is filed and bond, if required, is received. F. Fees - Schedule If the city manager shall approve the application, the applicant shall pay a permit fee as herein required: (1) Permit valid for one month- - - - (2) Permit valid for three months - - - - (3) Permit valid for one year - - - -$ 5.00 10.00 - - - 15, 00 No permit shall be issued for more than one year or before all fees, as required by this article, have been paid. G. Same - Charities exempt Charitable organizations and their representatives shall obtain permits as provided in this article but shall not be required to pay the fees as set out in sections Sections 3 C and F, R. Carrying on person. It shall be unlawful for any person to engage in any activity for which a permit is required by this ordinance without carrying such permit on his person while so engaged. I. Exclusions from applicability of article, The provisions of this ordinance shall not apply to commercial agents dealing with local business establishments in the usual course of their business nor shall this ordinance apply to insurance salesmen, real estate salesmen and others licensed by the state. SECTION 4 - Itinerant Merchants' Permits A. Definitions. As used in this ordinance the following terms shall have the respective meanings ascribed to them: Itinerant merchant: Any person, firm or corporation as well as agents, or employees thereof, who or which engages in the temporary or transient busi- ness of selling, exhibiting, or offering for sale in the city any goods, merchandise, services, photographs, magazines, or other things of value, or exhibits same for the purpose of taking orders thereof, and who or which, for the purpose of carrying on such temporary or transient business, either rents, leases, or occupies without renting or leasing, any room or space in any building or structure or in any space, enclosed or unenclosed, upon any private premises within the city. Temporary business: Any business as described above transacted or conducted in the city, in, upon, or through or from any private premises or space upon any private premises for which no definite arrangement for legal right of occupancy therefor has been made in advance of such use and occupancy. Transient business: Any such business as described above under "itinerant merchant" as may be conducted or operated by any person, or his agents or employees, who resides away from the city or who has a fixed place of busi- ness headquarters outside the city, or who moves stocks of goods, wares, merchandise or other things of value into the city, or samples thereof into the city with the purpose or intention of removing them or the unsold portion thereof away from the city before the expiration of six (6) months, B. Required, It shall be unlawful for any itinerant merchant, or for any agent or employee thereof to sell, offer for sale, or exhibit for the purpose of selling or I 'IrA/C e.- ()::, _ -rl:. OF-dill SECTION 5, Repeal ing7L.... bJ'jt. ,n's . AONFh<, , IN .- All ordinances or parts of ordinancey, specifically #21 referring to peddling on streets prohibited, are hereby repealed, SECTION 6 - The provisions of this ordinance shall be included and incorpor- ated in the Code of Ordinances of the City of Schertz, Texas, as an addition or amendment thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the Code, PASSED, APPROVED AND ADOPTED this the ~~day of 19 '79 :?~ kL./c 3.eL Mayor, City of Schertz, Texas ATTEST: (SEAL OF CITY) FULBRIGHT & .JAWORSKI 2200 JnterF;rst Plaza 300 Convent Street San Antonio, Texas 78205 Telephone: 512/224-5575 Houston Washington. D.C. Austin San Antonio Dallas London Zurich November 4, 1986 RE: City of Schertz Peddlers or Solicitors Ordinance Mr, Jimmy Gilmore City Manager P.O. Drawer "I" Schertz, Texas 78154 Dear Jimmy: I have received a series of correspondence from representatives of Massachusetts Indemnity and Life Insurance Company and Executive Fund Life Insurance Company (Executive Fund). The insurance company has requested the opportunity to conduct door to door solicitation in the City of Schertz, but have run into problems because of the Peddlers or Solicitors Permits Ordinance, I have had the question researched, and it appears that the application fee and bond requirements are not applicable to agents of insurance companies, I have enclosed herewith, for your reference, a memo furnished to me by Amanda Balch, an attorney with the Firm. If you agree with the conclusions set forth in the memo insofar as it relates to agents of insurance companies, please advise and I will respond to the attorneys representing Executive Fund, Very truly yqurs, -7 ;7<"'" (cC/ ~ichard W, Harris RWH/mjw/3042E Enclosures FULBRIGHT & JAWORSKI 2200 InterFirst Plaza 300 Convent Street San Antonio, Texas 78205 M E M 0 RAN DUM TO: Richard Harris DATE: November 4, 1986 FROM: M, Amanda Balch RE: City of Schertz - Peddler or Solicitor Permit Ordinance -------------------------------------------------------------- FACTS On January 16, 1979, the City of Schertz adopted City Ordinance No. 79-L-4 which requires solicitors engaged in interstate commerce to register with the City Manager. In addition, each registrant is required to pay a fee in order to obtain a license, Executive Fund Life Insurance Company has protested the application of the ordinance agents in the City of Schertz, The Company corporation duly authorized by the State Board do business in Texas. ("the Company") to its licensed is a Nebraska of Insurance to ISSUE Whether the City of Schertz' that solicitors register and pay Executive Fund Life Insurance Company. ci ty ordinance requi ring fees is applicable to SHORT ANSWER No, The city ordinance is in conflict with TEX. INS. CODE ANN. art, 4.06 (Vernon 1981) and TEX, CONST, art. XI, S5, and is, therefore, invalid insofar as it applies to agents of Executive Fund Life Insurance Company, DISCUSSION A city ordinance prohibiting solicitors from going on the premises of private residences without invitation, requiring' a permit, and charging a fee, is a valid exercise of "police power" under the federal constitution, Green River v. Fuller Brush Co., 65 F. 2d 112 (lOth Cir. 1933). There are, Memo to Richard Harris Re: City of Schertz - Peddler or Solicitor Permit Ordinance November 4, 1986 Page 2 however, limits to the validity of such an ordinance of the scope of its applicability. This type of cannot be enforced against persons exempted from regulations of this kind by the state constitution statutes, in terms ordinance municipal and state The Texas Constitution states that cities having a population of more than 5,000 may adopt charters, [Plroviding that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State or of the general laws enacted by the Legislature of this State. TEX, CaNST, art, XI, ~5, The Texas Insurance Code provides: No occupation tax other than herein imposed shall be levied by the State or any county, city or town, upon any insurance organization herein subject to the occupation tax in proportion to its gross premium receipts or its agents, The occupation tax imposed by this chapter shall be the sole occupation tax which any company doing business in this State under the provisions of this chapter shall be required to pay. TEX. INS, CODE ANN, art, 4.06 (Vernon 1981). In Combined American Insurance Co. v, City of Hillsboro, 421 S.W. 2d 488 (Tex. Civ. App,--Waco 1967, writ ref'd n, r. e, ), the Ci ty of Hi Ilsboro enacted an ordinance which prohibited door-to-door soliciting without first obtaining a license and paying a license fee, Combined American Insurance Co., a corporation .duly licensed by the State Board of Insurance, protested the enforcement of the ordinance, alleging that it was inapplicable under both TEX, CaNST. art, XI, ~5 and TEX. INS. CODE ANN, art. 4.06 (Vernon 1981), The court held that because the company had fully complied with State law, had been certified by the State Board of Insurance, and had paid the required tax, the City of Hillsboro was without authority to interfere with the company's solicitation of business. Memo to Richard Harris Re: City of Schertz - Peddler or Solicitor Permit Ordinance November 4, 1986 Page 3 The facts of the instant case are identical to the facts in Combined American Insurance, In both situations the complaining companies complied with the applicable laws under the control of the State Board of Insurance. Furthermore, the city ordinances complained of are nearly identical in that both prohibit door-to-door solicitation without first obtaining a permit and paying a license fee, CONCLUSION Since Executive Fund Life Insurance has complied with applicable state law and has pa10 the necessary taxes as required by the State Board of Insurance, it is likely that the Schertz city ordinance is in conflict with state law and is, therefore, inapplicable and unenforceable against the Company. M.A.B, Irlw #1525J