[HISTORY Adopted by the Common Council of the City of Hornell: Art. I, as Ch. 12 of the 1970 Municipal Code; Art. II, 11-24-1986 (Art. II of Ch. 14 of the 1970 Municipal Code). Sections 215-4, 215-25 and 215-31 amended at time of adoption of Code; see Ch. 1, General Provisions, Art. II. Other amendments noted where applicable.]
Article I General Provisions
Article II Transient Merchants
[Adopted as Ch. 12 of the 1970 Municipal Code]
Unless otherwise expressly provided, the following words, terms and phrases, when used in this Article, shall have the meanings herein ascribed to them: ESTABLISHED PLACE OF BUSINESS — A building or store in which or where the person transacts business and deals in the goods, wares and merchandise he hawks, peddles or solicits for during regular business hours.
- HAWKER and PEDDLER
- Any person, either principal or agent, who, from any boat or car on a railroad track or in any public street or public place or by going from house to house or place of business to place of business, on foot or on or from any animal or vehicle, sells or barters, offers for sale or barter or carries or exposes for sale or barter any goods, wares or merchandise, except milk, newspapers and periodicals, on a permanent basis.
- PERMANENT BASIS
- The operation of a local business for a period of more than six months.
- Any person who goes from place to place or house to house or who stands in any street or public place taking or offering to take orders for goods, wares or merchandise, except newspapers or milk, or for services to be performed in the future or for making, manufacturing or repairing any article or thing whatsoever for future delivery.
Nothing in this Article shall be held to apply:
To any sales conducted pursuant to statute or by order of any court.
To any person selling personal property at wholesale to dealers in such articles.
To merchants having an established place of business within the city, or their employees, for soliciting orders from customers and delivering the same.
To farmers and truck gardeners who, themselves or through their employees, vend, sell or dispose of products of their own farms and gardens.
To any honorably discharged soldier, sailor or marine who has procured a license as provided by the General Business Law of the State of New York, who is a cripple as a result of injuries received while in the military or naval service of the United States and who has otherwise complied with § 32 of said General Business Law.
To berry pickers who sell berries of their own picking.
So as unlawfully to interfere with interstate commerce.
It shall be unlawful for any person within the corporate limits of the city to act as a hawker, peddler or solicitor, as herein defined, without first having obtained and paid for and having in force and effect a license therefor.
The fee for a license required by this chapter shall be as provided in Chapter 142, Fees.
Information required. Any person desiring to procure a license as herein provided shall file with the City Clerk a written application upon a blank form prepared and furnished by the city and shall file at the same time satisfactory proof of good character. Such application shall contain the following information:
The number and kind of vehicles to be used by the applicant in carrying on the business for which the license is desired.
The kind of goods, wares and merchandise the applicant desires to sell or the kind of service he desires to perform and the method of distribution.
The name, address and age of the applicant.
The name and address of the person, firm or corporation the applicant represents.
The length of time the applicant desires the license.
Such other information as may be required by the City Clerk.
Certificate from Sealer of Weights and Measures. Such application shall be accompanied by a certificate from the Sealer of Weights and Measures certifying that all weighing and measuring devices to be used by the applicant have been examined and approved.
Upon the filing of the license application and the certificate as provided in § 215-5, the City Clerk shall, upon his approval of such application, issue a license to the applicant. Except as otherwise provided in this Article, no license shall be refused except for a specific reason and for the protection of the public safety, health, morals or general welfare.
A license issued under the provisions of this Article shall not be assignable. Any holder of such license who permits it to be used by any other person and any person who uses such license shall each be guilty of a violation of this Article.
No applicant to whom a license has been refused or who has had a license which has been revoked shall make further application until a period of at least six months shall have elapsed since the last previous rejection or revocation, unless he can show that the reason for such rejection no longer exists.
No license issued under the provisions of this Article shall be granted to a person under 21 years of age.
Each person licensed under the provisions of this Article, while exercising his license, shall carry the license with him and shall exhibit the same upon demand.
It shall be the duty of the City Clerk to keep a record of all applications and of all licenses granted under the provisions of this Article. Such record shall show:
The Mayor may, at any time, for a violation of this Article or any ordinance or any law, revoke any license issued under the provisions of this Article. When a license shall be revoked, no refund of any unearned portion of the license fee shall be made. Notice of such revocation and the reason or reasons therefor, in writing, shall be served by the City Clerk upon the person named in the application or by mailing the same to the address given in the application and upon filing a copy of such notice with the City Clerm.
Every vehicle used by a licensed hawker, peddler or solicitor in or about his business shall have the name of the licensee and his address plainly, distinctly and legibly painted in letters and figures at least two inches in height in a conspicuous place on the outside of each side of every such vehicle, and such name and address shall be kept painted plainly and distinctly at all times while such vehicle is in use during the continuance of the license.
A hawker, peddler or solicitor licensed pursuant to the provisions of this Article shall keep the vehicles and receptacles used by him in a clean and sanitary condition and the foodstuffs and edibles offered for sale well covered and protected from dirt, dust and insects.
Any licensee using a horse or wagon or motor vehicle may employ two persons, and no more, to assist in selling and delivering the wares, but such persons shall so act only while accompanying a licensed peddler, hawker or solicitor.
A licensed hawker, peddler or solicitor shall not falsely or fraudulently misrepresent the quantity, character or quality of any article offered for sale or offer for sale any unwholesome, tainted or diseased provisions or merchandise.
A licensed hawker, peddler or solicitor shall not blow a horn, ring a bell or use any other noisy device to attract public attention to his wares or shout or cry out his wares.
A licensed hawker, peddler or solicitor shall not sell any confectionery or ice cream within 250 feet of any school between the hours of 8:00 a.m. and 4:00 p.m. on school days.
A licensed hawker, peddler or solicitor shall not stand or permit the vehicle used by him to stand in any one place in any public place or street for more than 10 minutes or in front of any premises for any time if the owner of or lessee of the ground floor thereof objects.
A licensed hawker, peddler or solicitor shall not permit any vehicle used by him to stop or remain on any crosswalk.
A licensed hawker, peddler or solicitor shall not create or maintain any booth or stand or place any barrels, boxes, crates or other obstructions upon any street or public place for the purpose of selling or exposing for sale any goods, wares or merchandise.
All orders taken by licensed solicitors who demand, accept or receive payment or deposit of money in advance of final delivery shall be in writing, in duplicate, stating the terms thereof and the amount paid in advance, and one copy shall be given to the purchaser at the time the deposit of money is paid to the solicitor.
Any person who, himself or by his clerk, agent or employee, shall act as a hawker, peddler or solicitor, as herein defined, without a license or shall violate any of the provisions of this Article or who, having had his license revoked, shall continue to act as a hawker, peddler or solicitor shall, upon conviction, be punished as provided in § 1-1 of this Code.
[Adopted 11-24-1986 (Art. II of Ch. 14 of the 1970 Municipal Code)]
As used in this Article, the following terms shall have the meanings indicated:
- An individual, firm, partnership, corporation, voluntary association, incorporated association and principal or agent thereof.
- TRANSIENT MERCHANT
- A person who engages or proposes to engage in a transient retail business.
- TRANSIENT RETAIL BUSINESS
- One conducted in a store, hotel, motel, building, tent, lot, truck, tractor-trailer or structure for the retail or discount sale of goods, wares and merchandise, excepting food products, and from which business is intended to be conducted for a temporary period of time and not permanently. If the place in which a business is conducted is rented or leased for a period of four months or less, such fact shall be presumptive that the business carried on therein is a transient business.
The purpose of this Article is to assist the government of the City of Hornell, the management of its business and the preservation of good order and the peace, health, safety and welfare of its inhabitants and the protection and security of their property.
[Amended 12-28-1992 by L.L. No. 4-1992]
No person shall engage in business as a transient merchant unless he shall first have obtained a license to do so from the City Clerk no later than five business days before the first date of business. The fee for a transient merchant's license shall be as provided in Chapter 142, Fees.
Information required. An application for a transient merchant's license shall provide the following information:
The address of his place of residence.
The firm or firms he represents, together with copies of documents establishing the firm's state or county, form of organization, ownership and qualification to do business in the state and the exact relationship between the firm and the transient merchant. (If a corporation, the shareholders, directors and officers of the same shall be reported.)
A brief description of the nature of the business and the kind of goods or commodities he desires to sell.
The hotel, room or other place where the applicant proposes to sell such merchandise and the time during which said business is to be conducted.
Before such license is issued by the City Clerk, the applicant will be required to post a surety bond in an amount of $25,000 with a surety company licensed to do business in this state. Said bond shall be approved as to form and sufficiency by the City Attorney and the City Clerk before such license is issued.
A condition of such bond shall be that said transient merchant will pay all state and local sales and other taxes applicable to his transactions entered into in this city; that he will well and truly perform any and all contracts or sales orders made within the city; that all contracts and sales orders will be in writing and will specify in detail all terms thereof, including but not limited to any warranty or guaranty therein; and if said merchant takes orders for merchandise to be delivered at a future date and accepts payment in part or in full, that he will deliver said merchandise in a satisfactory condition within a period of three months from the date of said contract, a copy of which contract or sales order with full particulars is to be delivered to the purchaser at the time of sale.
There shall be no forfeiture in respect to the three month's limitation where there is proof that nondelivery was due to strikes or other extraordinary events beyond the control of said merchant; however, in such event, the merchant, upon demand, shall promptly return, in full, the purchaser's deposit; and if he fails to do so, the surety will be required to make restitution under said bond.
Registration with Chamber of Commerce of the City of Hornell required. Before such license is issued by the City Clerk, the applicant will be required to file a duplicate copy of his application with the Chamber of Commerce of the City of Hornell.
Location and extent of business. Licenses hereunder shall state the place where business is to be conducted and the date of expiration of the terms of such business pursuant to the license.
Before any person who is a nonresident of New York State shall have a license issued hereunder, such person must provide to the City Clerk proof of authorization by the New York Secretary of State to receive service pursuant to the Business Corporation Law § 304. A certified copy of such authorization shall be filed with the City Clerk of the City of Hornell.
Nothing in this Article shall be held to apply to any of the following:
Sales conducted pursuant to statute.
Sales conducted pursuant to the order by any court.
Any person selling personal property at wholesale to dealers in such articles.
The peddling of meats, fish fruit and similar produce by farmers and persons who produce such commodities or to dealers in milk, baked goods, heating oil and daily newspapers.
Any honorable discharged member of the United States Armed Forces who has procured a license under Article 4 of the General Business Law of the State of New York.
Persons soliciting, collecting or operating a sale on behalf of any bona fide charitable, educational, scientific, health, religious, patriotic or other organization or worthy cause deemed to be in the public interest.
Any person selling personal property at a garage sale held at his residence.
Any person selling Christmas trees.
Any person selling arts and crafts when said arts and crafts were produced by the seller.
This Article shall not be construed so as to unlawfully burden or interfere with interstate commerce.
Chapter 315, Zoning, of the Code of the City of Hornell shall apply to all licenses granted under this Article. The city reserves the right to revoke any license which violated such chapter or this Article.
The owner, proprietor or manager of any hotel, motel, roominghouse or other place of public accommodation shall report, within six hours after renting, to the City of Hornell Police Department the name of any person who has rented a room or other space for the sale and display of merchandise of a transient merchant, giving the location of the room so rented.
[Amended 12-28-1992 by L.L. No. 4-1992]
Any person violating the provision of this Article shall be guilty of an offense and, upon conviction thereof, shall be punishable as provided in § 1-1 of the Code; and every day that a violation of this Article shall continue shall constitute a separate and distinct offense.