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,
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#1525J