[HISTORY: Adopted by the Mayor and Council of the City of Española 5-2-1995 by Ord. No. 532 (Ch. 26 of the Code of Ordinances). Amendments noted where applicable.]
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
- BUSINESS REGISTRATION
- A document issued by the City Finance Department containing all the approvals and information necessary to authorize a business activity within a fixed and permanent structure.
- GARAGE SALE
- A sale of goods from a private residence which occurs on a nonregular basis at intervals greater than six months apart at the same residence.
- Any domesticated animal generally kept for the purpose of providing food or other services to humans. The word "livestock" includes, but is not limited to, cows, horses, fowl, goats and other animals normally found on farms or ranches.
- As applied to goods or livestock means grown, raised or produced within 22 miles of the City limits.
- LOCAL VENDOR
- Any person who conducts business within municipal boundaries, who permanently resides within 22 miles of those boundaries and who furnishes persuasive proof of such residence by agricultural certificates, a state driver's license or other form of identification.
- A document issued by the City Finance Department containing all the approvals and information necessary to authorize a business activity.
- TEMPORARY SALE
- The sale or offering for sale of services and goods for 14 consecutive days or less at a private residence, church, school, shopping center or other similar facility. This type of sale shall include, but not be limited to, garage sales, rummage sales, yard sales and the sale of livestock and other farm animals.
- TEMPORARY SALES PERMIT
- A document issued by the City Finance Department containing all the approvals and information necessary to authorize the sale of goods and merchandise, including livestock and garage/rummage sales from a private residence, church, school or other similar facility.
- TRANSIENT VENDOR
- All nonlocal merchants, vendors, peddlers or hawkers going from door to door, street to street or business to business, or located at a temporary mobile structure, offering goods or services for sale.
This chapter responds to the need for a measure of protection to the citizens of the City by monitoring to some degree the operations of vendors, solicitors, peddlers, hawkers and itinerant merchants within the City and to set fees to offset the higher administrative costs for police protection, sanitation and tax collection arising from transient and itinerant business activities. This chapter intends to set a fee schedule which takes into account the increased difficulty of monitoring the transient and itinerant business activity of nonlocal vendors and merchants, as well as the transient sale of nonlocal goods. This chapter will monitor to some degree the sale of these goods and services but does not endorse, warrant, insure or promote any goods, services or their vendors. To establish a method of monitoring gross receipts taxes due from permanent businesses within the City, as well as verification of compliance with other municipal ordinances, such businesses shall be required by this chapter to obtain a business registration from the City Finance Office.
This chapter shall apply within City limits as set out in the current official Zoning Map of the City and shall equally apply to non-Indians open for business to the general public on Indian lands located within the City limits.
This chapter shall be enforced by the Zoning Enforcement Officer, City Manager, their designees or any City police officer.
It is unlawful to:
Solicit the sale of goods or services door-to-door without the express verbal or written permission of the owner or lawful occupant.
Sell or give away livestock or other animals within or adjacent to a public right-of-way.
Sell or offer for sale any goods or services or solicit any gifts, donations or contributions within City boundaries without first obtaining the appropriate permit or business registration, as prescribed by this chapter.
Any person conducting a temporary sale may erect temporary signs for advertisement. Such signs may be placed one day prior to the sale and must be removed within one day after the sale. No sign permit fee shall be required. All signs must conform to Chapter 350, Zoning and Development, Article IX, Signs, and any amendments thereto, and to an approved plan indicating where signs are to be placed. The following rules shall also apply:
No sign may be larger than four square feet and higher than 36 inches from the ground.
All signs must have the name and address, with the signature of the permit holder, on the lower lefthand corner.
Any sign left out more than one day after the last day of the sale will be picked up by City crews. Such signs shall constitute litter and a nuisance in violation of Chapter 254, Nuisances, of this Code, and the permittee may be cited and punished by a fine of not more than $500 or 90 days in jail, or both.
All persons doing business in a fixed and permanent structure within the City shall first obtain a business registration from the Finance Department of the City. However, business registration shall also be required of persons who provide security to individuals, residential areas or business establishments within municipal boundaries, regardless of whether the business is conducted from a fixed and permanent structure within the City.
Any person who, except from a fixed and permanent structure, solicits donations, contributions, or gifts or who sells or offers for sale goods, services or merchandise in or upon private property, public property, or shopping centers, whether by foot, vehicle or at a roadside stand, whether or not for profit, shall first procure a permit from the City Finance Department, unless a specific exception is contained in this chapter. Such permit shall be approved by the Business Office, Zoning Office and Police Chief.
Applications for business registration or permits under this article must be filed with the City Finance Department. An applicant must submit a sworn application containing the following information on a form to be furnished by the City Business Office:
The applicant's name, date of birth, and social security number.
The applicant's mailing address.
The applicant's state tax identification number (not necessary for temporary sales permit).
A brief description of the nature of the business and goods or services to be sold.
A brief description of the place where the business will be conducted. If the business is to be conducted at a location not owned by the applicant, a lease or other written permission from the owner is required.
If employed, the name and address of the applicant's employer.
The length of time for which the applicant seeks the right to do business.
If a vehicle will be used to conduct business, a description and license number or other means of identification and proof of insurance.
Any other pertinent information reasonably necessary to approve the application.
Before a permit or registration becomes effective, the following fees shall be paid to the City:
For local vendors selling locally grown produce, a permit is required for which there is no fee.
For local vendors selling locally raised livestock, a permit is required. The fee is $50.
For local vendors selling nonlocal goods, a permit is required. The fee is $150.
For transient vendors or solicitors selling only local goods, a permit is required. The fee is $150.
For transient vendors selling nonlocal goods, a permit is required. The fee is $1,500.
For temporary sales, except for garage sales and rummage sales sponsored by a charitable, nonprofit legal entity, a permit is required. The fee is $25.
For garage sales and rummage sales sponsored by charitable legal entities, no permit is required.
There shall be a business registration fee of $35.
All business registrations issued under the provisions of this article shall expire on December 31 of the current calendar year. A thirty-day grace period to acquire a new registration shall be allowed for renewal of the registration for businesses holding the previous year's registration. After January 30, a late fee of $1 per day, not to exceed $300, shall be imposed for the renewal of an expired registration.
Permits and registrations issued under the provisions of this article may be revoked by the City for any of the following causes:
Fraud, misrepresentation, or false statement contained in the application for license.
Fraud, unfair or unconscionable trade practices in the course of business.
Any violation of this chapter.
Conducting the business in such a manner as to constitute a breach of the peace or a danger to the health, safety, or general welfare of the public.
A person aggrieved by any decision under this chapter may, within 10 days of the decision appealed from, file with the Planning and Zoning Department a written notice of appeal specifying the grounds for the complaint. Failure to file a timely notice of appeal shall constitute a waiver of any complaint and shall deprive the Planning and Zoning Commission of jurisdiction to hear the appeal.
All appeals shall be heard by the Planning and Zoning Commission in an informal hearing. The aggrieved party may be represented by counsel and shall have the right to present evidence and to cross examine witnesses under oath. The appeal shall be heard at the next regular meeting of the Planning and Zoning Commission or within 14 days following the date of filing. Unless the enforcement officer certifies that delay in enforcement will cause serious and imminent harm to safety or property, the filing of an appeal shall stay all enforcement actions.
Revocation of a business registration or permit shall require notice and hearing. Notice of a hearing for a proposed revocation of a registration or permit shall be given to the registrant or permittee in writing, setting forth specifically the grounds for proposed revocation and the time and place of the hearing. Such notice shall be mailed by certified mail to the registrant or permittee at his last known address at least five days prior to the date set for the hearing.
The decision of the Planning and Zoning Commission regarding any appeal or revocation hearing is final unless, upon application within 10 days of the Commission's decision, the City Council agrees to review the decision. If so, the City Council shall hear the matter within 14 days of its agreement for review or at the next regularly scheduled City Council meeting, and the applicant shall be permitted to present evidence, cross examine witnesses and be represented by counsel.