Borough of Malvern, PA Chapter 142 Peddling and Soliciting

[HISTORY: Adopted by the Borough Council of the Borough of Malvern 6-7-2016 by Ord. No. 2016-9.[1] Amendments noted where applicable.]

[1] Editor’s Note: This ordinance also repealed former Ch. 142, Peddling and Soliciting, adopted 5-21-2013 by Ord. No. 2013-5, as amended.

§ 142-1 License required; restrictions.

A. From and after the enactment hereof, it shall be unlawful for any persons, not exempted by § 142-6 hereof, who is not the holder of a valid and unexpired license issued pursuant to this chapter to engage in the following regulated activities: selling, purchasing or soliciting the sale or purchase of food, printed matter, services, goods, wares or merchandise of any description, or in soliciting signatures, personal information, contributions, gifts or pledges or money or any other thing of value by visitation to private homes or residences or on the public streets or highways of the Borough of Malvern.

B. No person shall be issued a license under this chapter if such person:

(1) Has been convicted of a felony; or

(2) Has, in the 10 years preceding the date of application as required under this chapter, been convicted of a misdemeanor involving moral turpitude or breach of trust.

§ 142-2 License application; fee.

A. Application for license. Any person desiring to obtain a license to engaged in the activities described in § 142-1 hereof (the "applicant") shall make an application, in person, to the Malvern Borough Police Department on a form to be furnished by the Borough in accordance with this section.

(1) Photographs. The applicant shall provide with his application pursuant to this section two photographs of the applicant, such photographs having a portrait orientation with minimum dimensions of each photograph of two inches by three inches, taken within six months prior to the date of the application.

(2) Contents of application. The applicant shall supply, over his signature, the following information:

(a) Information about the applicant personally:

[1] Name;

[2] Sex;

[3] Social security identification number;

[4] Place and date of birth;

[5] A physical address (not a post office box) where the applicant will receive notices as may be required under this chapter or by law (the "notice address");

[6] Residence address, if different from the notice address;

[7] Temporary address, if different from the notice address;

(b) Information about the applicant's business entity:

[1] The legal name of the applicant's business entity for whom the applicant will conduct the activities requiring registration under this chapter;

[2] The Federal tax identification number (employer identification number or social security number) for the business entity;

[3] The Pennsylvania sales tax identification number for the business entity;

[4] The name, title, address, and telephone number of any principal of the business entity;

(c) If the applicant is a food vendor:

[1] The applicant's or the applicant's business entity's license number for Chester County; and

[2] The length of time the applicant will engage in activities requiring registration under this chapter; and

(d) If the applicant will use any vehicle in the conduct of activities requiring registration under this chapter:

[1] The make, model, and year of the vehicle; and

[2] The vehicle's registration number; and

[3] The vehicle's license plate state and number; and

[4] A certificate of automobile liability coverage.

(3) Affirmation of eligibility. Together with the application, the applicant shall provide a signed affirmation by the applicant that:

(a) The applicant has not been convicted of any felony; and

(b) The applicant is not disqualified from employment or participation in any program, activity or service pursuant to 23 Pa.C.S.A. § 6344(c) (primarily relating to violent crime and child abuse); and

(c) The applicant has not been convicted of a misdemeanor involving moral turpitude or breach of trust.

(4) Application fee. Together with the application, the applicant shall pay a nonrefundable fee to process the application in an amount as determined by the Borough Council via resolution from time to time and indicated conspicuously on the face of the application. Such fee shall be credited toward the license fee if the application is approved.

(5) Criminal background check. Together with the application, the applicant shall provide certified criminal background check information indicating that the applicant has not been convicted of any offense which would disqualify the applicant pursuant to this chapter as follows:

(a) The applicant shall provide a certified report of a criminal background check conducted by the Pennsylvania State Police; and

(b) The applicant shall provide either:

[1] A sworn affidavit stating that the applicant has resided in the Commonwealth of Pennsylvania continuously for the previous 10 years and has not ever been convicted of any offense which would disqualify the applicant pursuant to this chapter; or

[2] A report of federal criminal history record information. The applicant shall submit a full set of fingerprints to the Pennsylvania State Police for the purpose of a record check, and the Pennsylvania State Police or its authorized agent shall submit the fingerprints to the Federal Bureau of Investigation for the purpose of verifying the identity of the applicant and obtaining a current record of any criminal arrests and convictions.

(6) Issuance. Upon the submission of the application and other documents required by this section, and the payment of the application fee, and upon the verification of the Police Department that the applicant is eligible for a license pursuant to this chapter, the Police Department shall issue a license to the applicant within 10 days from the filing of the application. The license shall be issued in the form of a card which includes the applicant's photograph. The license shall remain valid unless revoked in accordance with this chapter. The license shall entitle the licensee to engage in the activities described in § 142-1 of this chapter, for a period of one year from the date of issuance.

(7) Defined terms. As used in this section and this chapter, the following terms shall have the meanings indicated as follows:

APPLICANT'S BUSINESS ENTITY

Any professional, for-profit, or nonprofit corporation, general or limited partnership, limited liability company, limited liability partnership, or similar business entity or association, or natural person transacting business under a registered or unregistered fictitious name.

§ 142-3 Rules of conduct.

Every licensee, and any other person engaging in the business or activities of sales, solicitation, or peddling within the Borough, shall comply with the following rules of conduct in carrying on such business or activities:

A. License card. He shall carry his license card at all times, and exhibit it upon request, to any Police Officer, and employee of the Borough, or any person upon whom he shall call, or with whom he shall talk in carrying on his licensed activities.

B. Lost or stolen license card. He shall not permit any other person to have possession of his license card. He shall immediately report the loss or theft of his license card to the Malvern Borough Police Department. He shall not cause or permit his license card to be altered or defaced in any way.

C. Limitations as to place. He shall not enter any property conspicuously posted against soliciting; nor shall be enter any business with the intention of carrying on business or activities requiring registration under this chapter, or any dwelling whatsoever, without invitation or permission of the owner, or if no owner is present, the occupant(s) of the same; and he shall immediately leave any place of business or dwelling upon request of any person.

D. Limitations as to time. He shall engage in canvassing or soliciting only between the hours of 9:00 a.m. to 7:30 p.m. Monday through Friday; and 12:00 noon to 4:00 p.m. on Saturdays. He shall not engage in any canvassing or soliciting on Sundays or on any legal holiday.

E. Prohibition of misrepresentation. He shall not be guilty of any false pretense or misrepresentation, and shall not represent that his goods, services, employer, or organization is in any way endorsed by the Borough.

F. Surrender of license card. He shall immediately surrender his license card to the Police Department upon revocation of his license pursuant to this chapter.

G. Cessation due to unsafe conditions. He shall immediately cease soliciting and vacate the area if deemed unsafe by the Borough, based on conditions at the time.

§ 142-4 Revocation of license.

Any license issued by the Malvern Borough Police Department may be revoked by the Malvern Borough Police Department as follows:

A. Cause for revocation. Should any of the following conditions exist, the Malvern Borough Police Department may revoke a license issued pursuant to this chapter:

(1) If the licensee fails to comply with the standards of conduct in accordance with § 142-3 of this chapter; or

(2) If the licensee is ascertained to have false statement(s) in his application for a license pursuant to § 142-2 of this chapter; or

(3) If the licensee is convicted of any felony or any misdemeanor which would disqualify the licensee as an applicant under this chapter.

B. Procedure of revocation. Notice of revocation shall be given by written notice personally served or sent by registered mail to the address designated for this purpose in the application for license.

§ 142-5 Appeal for reinstatement of license.

Any person whose license has been revoked shall be entitled to appear, with counsel, if he so desires, before the Council of Malvern Borough at a regular special meeting, provided that such person has provided Borough Council with written notice of such request at least six business days prior to Borough Council's next regularly scheduled meeting. If such person does not provide Borough Council with at least six business days' written notice prior to the next regularly scheduled meeting, Borough Council may, in its discretion, conduct a hearing at such time or schedule a hearing within five business days of such regular meeting. Following the hearing, Borough Council may reinstate the license, affirm the revocation of the license or affirm or modify the suspension of the license for a period not to exceed five years. No person shall be denied a license or have such license suspended or revoked except by procedures consistent with due process of law.

§ 142-6 Exemptions.

Except as to § 142-3C (relating to limitations as to place, which shall apply to all persons engaged in any type of peddling, solicitation, or sales within the Borough), the following persons are exempt from the requirements of this chapter:

A. Farmers engaged in selling only the produce of their own farms.

B. Persons engaged in the sale of goods for or solicitation of donations for a charitable or philanthropic organization exempted from the provision of a duly registered and is in compliance with the Pennsylvania Solicitation of Funds for Charitable Purposes Act (10 Pa.C.S.A. § 162.1 et seq.).

C. Owners, principals, agents, and employees of businesses with a fixed, physical, leased or owned business location within or about any privately owned structure or parcel in the Borough of Malvern when engaged in otherwise-lawful advertising, sales, service, or solicitation within 25 feet of any public entryway to their own business or place of employment.

D. Persons who are otherwise lawfully delivering goods or services pursuant to an affirmative order or request of any person or business within the Borough, including (without limitation) the delivery of food, parcel delivery, or similar business activities.

E. Persons who have been licensed by the Commonwealth of Pennsylvania to engage in any activity described below, when so engaged:

(1) Real estate broker;

(2) Insurance broker;

(3) Securities broker.

F. Political campaign workers, candidates, and other persons exercising their First Amendment right to speak about political, religious, and social issues and or to distribute literature related to the same.

G. Any persons, organization, or corporation that has received approval from the Borough Council to conduct a special event within the Borough (the "organizer(s)"), and the invited vendors of such organizer, subject to the following:

(1) The Organizer(s) shall be responsible for its own compliance with this chapter and shall be responsible for the compliance of its invited vendors with this chapter.

(2) Each organizer, to the extent the organizer is not already a licensee, shall submit an application and application fee in full accordance with § 142-2 of this chapter and shall pay the license fee in effect at such time as may be set from time to time by the Borough Council via resolution.

(3) At least 10 days prior to the event, the organizer(s) shall submit a list to the Malvern Borough Police Department of the invited vendors, including the information required under § 142-2A(4). It shall be prohibited for, and the organizer(s) shall not permit or tolerate, any vendor who is not a licensee and whose information was not provided to the Malvern Borough Police Department in accordance with this subsection, to engage in any activity which is regulated under this chapter within the boundaries of the event.

§ 142-7 Exemptions for certain minors.

A. This chapter shall not apply to individuals under the age of 18 years, who are not employed by or representing a for-profit business and who take orders for and deliver newspapers, greeting cards, candy and the like, or who represent the Boy Scouts and Girl Scouts or similar organizations and take orders for and deliver cookies/popcorn and the like.

B. This chapter shall not apply to individuals under the age of 18 years, who are soliciting for the sale of their own goods, services, or labor including, but not limited to, newspaper delivery, grass mowing, general yardwork, snow removal, or similar services, and further provided that the entire compensation paid for such services shall be paid directly to the individual(s) performing the services and not, directly or indirectly, in whole or in part, to any other person.

C. It shall be a violation of this chapter for any person over the age of 18 years to cause any minor to violate the provisions of this chapter.

§ 142-8 Violations and penalties.

Any person who violates or permits the violation of any provision of this chapter shall, upon being found liable therefor in a civil enforcement proceeding commenced by the Borough before a District Judge, pay a fine for each such violation in an amount not less than $100 and not more than $600, plus all court costs, including reasonable attorney's fees, incurred by the Borough. No judgment shall be imposed until the date of the determination of a violation by the District Judge. If the defendant neither pays nor timely appeals the judgment, the Borough may enforce the judgment pursuant to the applicable rules of civil procedure. Whenever any such person shall have been officially notified that he is in violation, each day's continuance of such violation after such notification shall constitute a further and separate offense.