[HISTORY: Adopted by the Mayor and Council of the City of Española 10-22-2019 by Ord. No. 2019-06. Amendments noted where applicable.]
Editor's Note: This ordinance repealed former Ch. 158, Businesses, Regulation of, adopted 5-2-1995 by Ord. No. 532 (Ch. 26 of the Code of Ordinances), as amended.
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 Clerk containing all the approvals and information necessary to authorize a business activity within a fixed and permanent structure. This shall include home based businesses but shall not include a transient vendor or temporary sale as defined in this chapter.
- EXTRATERRITORIAL BUSINESS REGISTRATION
- A document issued by the City Clerk containing all the approvals and information necessary to authorize a business service activity within the City limits by a contractor or service provider who is legally registered in another jurisdiction in the state of NM and who is providing a service within the City limits but who does not have a fixed and permanent structure within City limits. This shall not include retail sales, but may include sales of products or materials necessary and accessory to providing a service.
- GARAGE SALE
- A sale of goods from a private residence which occurs on a non-regular 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.
- A document issued by the City containing all the approvals and information necessary to authorize a business activity.
- SIDEWALK SALE
- An outdoor display for the exhibition or sale of goods, services or produce on any portion of the exterior of the property owned and/or adjacent to any retail sales establishments. Sidewalk sales are permitted by any legally operating business immediately in front of the place of business where the goods, services or produce are normally sold. No merchandise, displays, equipment, or similar items may encroach upon the public sidewalk nor obstruct the movement of pedestrians or vehicles. No additional permit is required. This shall not include transient vendors or temporary sales.
- 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 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 merchants, vendors, peddlers or hawkers going from door to door, street to street or business to business, or located at a temporary site or mobile structure, offering goods or services for sale.
- VENDOR PERMIT
- A document issued by the City containing all the approvals and information necessary to authorize the sale of goods or services by a transient vendor within City limits.
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 businesses, vendors, solicitors, peddlers, hawkers and itinerant merchants within the City and to set fees to offset the administrative costs. This chapter will monitor to some degree the sale of 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 those doing business within the City, as well as verification of compliance with other municipal ordinances, businesses shall be required by this chapter to obtain a business registration from the City Clerk.
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 Code 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.
All persons doing business in a fixed and permanent structure within the City shall first obtain a business registration from the City Clerk. This shall include a business that only provides a service, including security to individuals, residential areas or business establishments, if it operates from a fixed and permanent structure within City limits.
All persons providing a service within City limits who are legally registered in another jurisdiction of the State of New Mexico but who do not have a fixed and permanent structure within the City shall first obtain an extraterritorial business registration from the City Clerk. This shall include a business that provides security to individuals, residential areas or business establishments within the City but who does not operate from a fixed and permanent structure within City limits. This shall not include retail sales of goods or products.
Applications for a business registration or extraterritorial business registration must be filed with the City Planning and Zoning Department on a form to be furnished by the City and must include the following:
The applicant's name, business name, and federal identification number (EIN or social security number).
The applicant's mailing address and contact information.
The applicant's state tax identification number (CRS#) and filing location code.
A brief description of the nature of the business and goods or services to be sold, and the corresponding NAICS code.
The location where the business will be conducted and property owner's name, address and contact information. 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.
A copy of any professional license, permit or registration issued or required by the New Mexico Regulation and Licensing Division. Such license, permit, or registration shall be current and valid.
A copy of any license, permit, or certificate issued by the New Mexico Environment Department. Such license, permit or certification shall be current and valid.
Proof of insurance.
A list of corporate officers for corporations, limited liability corporations, nonprofit corporations or other similar legal entities.
Any other pertinent information reasonably necessary to approve the application.
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 vendor permit from the City, unless a specific exception or other permit is specified in this chapter.
Applications for a vendor permit must be filed with the City Planning and Zoning Department on a form to be furnished by the City and must include the following:
The applicant's name, mailing address and contact information.
The applicant's driver license number or state-issued identification number.
A description of the goods to be sold or the service to be provided.
The desired length of time for the permit.
The location where the business will be conducted and property owner's name, address and contact information. If the business is to be conducted at a location not owned by the applicant, written permission from the owner is required.
A copy or any license, permit, or certificate issued by the New Mexico Environment Department or New Mexico Regulation and Licensing Division. Such license, permit or certification shall be current and valid.
Any other pertinent information reasonably necessary to approve the application.
Any person or organization who holds a temporary sale or garage sale as defined by this chapter shall be subject to the following:
Temporary sales shall require a vendor permit from the City as specified in this chapter unless they are sidewalk sales as defined by this chapter.
Garage sales held on private residential property shall not require a permit from the City unless they are held adjacent to NM 68/Riverside Drive or US 84/285/Paseo de Oñate. Garage sales held in such locations are considered temporary sales and shall require a vendor permit.
Before a permit or registration becomes effective, the fee as specified in Chapter 171 shall be paid to the City.
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 as specified in Chapter 171 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 15 days of the decision appealed from, file with the Planning and Land Use 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 a quasi-judicial public 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 15 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 15 days of the Commission's decision, the City Council agrees to review the decision. If so, the City Council shall hear the matter 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.