[Ord. 1123, 4/6/2015]
1.
This Part 4 establishes a licensing system to regulate the conduct of persons and individuals falling generally within the classification of transient merchants, including, without limitation, transient merchants operating generally from door to door, and to that end, entering upon private property without the express permission of the owner or occupant, and merchants operating in and on the streets, sidewalks, rights-of-way and other public areas of the Borough. By their very nature, these merchants operate in locations which, as a general matter, are neither fixed nor established, and they are therefore movable, transient and temporary. Unless exempt, transient merchants, as well as persons and individuals soliciting or securing contributions to various causes and organizations, regardless of profit and nonprofit status, and conducting regulated activities in the Borough are subject to the requirements of this Part.
2.
The permitting system established hereunder is two-tiered and includes
a licensing program for transient merchants whose activities do not
include door-to-door activities or the entry upon private property
and a permitting system for those who desire to conduct door-to-door
activities or enter upon private property in the furtherance of their
transient business.
[Ord. 1123, 4/6/2015]
1.
BOROUGH
CLASS 1 LICENSE
CLASS 2 LICENSE
LICENSEE
PERSON
REGULATED ACTIVITY
TRANSIENT MERCHANT
The following words and phrases are defined as follows;
The Borough of Emmaus, Lehigh County, Pennsylvania.
A license authorizing the conduct of regulated activities
in the Borough by a transient merchant on a door-to-door basis or
on private property without the permission of the property owner.
A license authorizing the conduct of regulated activities
in the Borough by a transient merchant operating on the streets, sidewalks,
rights-of-way and other public areas of the Borough.
A person who submits an application to, and is approved by,
the Borough for either a Class 1 or 2 license pursuant to the requirements
of this Part.
Any individual, partnership, limited liability partnership,
firm, company, limited liability company, corporation, association,
club, or any other legal entity, and with respect to each, its agents,
servants and employees. This definition shall include for-profit and
not-for-profit entities.
Except as otherwise exempted by this Part, any activity conducted
by a transient merchant and involving in whole or in part the conduct
of a retail business, including, without limitation, the selling or
offering for sale, canvassing, peddling, soliciting or the taking
of orders, either by sample or otherwise, of any goods, wares, products,
services or merchandise, including, but not limited to: subscriptions
for magazines and other printed material, the obtaining of contracts
for home or building services, repairs or improvements, and the securing
of contributions to various causes or organizations, upon any of the
streets, sidewalks or rights-of-way of the Borough or by house to
house or visitation to private residences in the Borough.
A person engaged in a transient retail business for the sale
of personal property, whether the business is conducted from a fixed
location within the Borough or by an individual engaged in peddling,
soliciting or the taking of orders from house to house. Residency
within the Borough shall not affect transient merchant status. A transient
merchant shall include a person who solicits or secures contributions
for various causes and organizations regardless of the profit or nonprofit
status of the cause or organization.
[Ord. 1123, 4/6/2015]
1.
Every person desiring to undertake a regulated activity shall first
apply to, and obtain from, the Borough either a Class 1 or Class 2
license in accordance with the requirements of this Part.
2.
If the regulated activity of the transient merchant involves a door-to-door
activity and/or the entry upon private property without the prior,
express permission of the occupant, then the transient merchant shall
apply for a Class 1 license in accordance with the requirements of
this Part.
3.
If the regulated activity of the transient merchant involves other
than door-to-door contact and/or the entry upon private property without
the prior, express permission of the owner or occupant, then the transient
merchant shall apply for a Class 2 license in accordance with the
requirements of this Part.
[Ord. 1123, 4/6/2015]
1.
Unless exempt pursuant to § 13-408, below, any person desiring to engage in a regulated activity shall complete and file with the Borough for review and approval an application for an appropriate license on a form to be provided by the Borough.
2.
The application shall contain, at a minimum, the following information:
A.
If the applicant is an individual, he shall supply his full name;
his business, home and temporary addresses (exclusive of post office
boxes); and all telephone numbers to be used in the course of sales
and solicitations in the Borough;
B.
If the applicant is a person other than an individual, the agent completing the application shall supply the applicant's full name, business address (exclusive of post office boxes) and telephone number to be utilized in the course of sales and solicitations in the Borough, together with the full name and home and business addresses (exclusive of post office boxes) of each agent, servant or employee conducting or expected to conduct regulated activities on behalf of the applicant in the Borough, as required by Subsection 2C, E, F and H below;
C.
The applicant's address(es) for service and receipt of notices or
process (exclusive of post office boxes) in connection with the license
application and the performance of subsequent activities in connection
therewith;
D.
A detailed description of the nature of the applicant's business,
the regulated activities proposed to be conducted in the Borough and
the specific products, services, solicitations or other activities
to be conducted, together with the requested, effective date of the
license;
E.
Proof of compliance with all licensing, permitting, or certification
requirements applicable to the applicant's business or the proposed
activity;
F.
A description of each conviction involving a nonsummary offense,
the date of each conviction and the jurisdiction in which the conviction
occurred;
G.
A warning that the applicant's responses, statements and submissions
are subject to 18 Pa.C.S.A. § 4904, relating to "unsworn
falsification to authorities;" and
H.
A criminal history background check provided by the applicant.
3.
The applicant or its authorized agent, servant or employee shall submit in person to the Borough an application, and at such time he shall provide for inspection and photocopying by the Borough a lawful driver's license or other official form of identification, containing his picture. In addition, he shall pay the application fee as set forth in § 13-409 of this Part.
4.
Upon submission of the application and the payment of a fee, the
Borough shall accept the application for review and processing, which
may include an investigation into the history or business of the applicant,
his employer or his principal. Any application deemed incomplete shall
be rejected and returned to the applicant with the fee.
5.
Within 10 business days of the date of submission of the application, the Borough Manager, or his designee, shall either approve the application and issue the license or permit or deny the application and state the reasons therefor. Grounds for denial shall include, but are not limited to, those acts or omissions specified in §§ 13-404 and 13-405 below.
6.
The approval of the application and the issuance of the license to
conduct the regulated activity(ies) shall apply only to those activities
expressly described in the application. A Class 1 license shall be
for a period of seven consecutive days, commencing with the effective
date thereof; and a Class 2 license shall be effective for a period
of one year, commencing with the effective date thereof.
7.
A license may be renewed, provided that the applicant shall file
and submit for review and approval an application following the procedure
set forth above. The Borough Manager, or his designee, may utilize
a short-form application for renewal. It shall be grounds for denial
of any renewal application that the applicant has violated or is in
violation of the law or any of the requirements of this Part or any
other Borough ordinance. A denial shall be made by the Borough Manager
in writing, which shall set forth the specific reasons for the denial.
In determining whether to deny the application, the Borough Manager
shall consider the past history of the applicant as reflected in the
information provided or obtained in the application process as well
as any prior experience with the applicant as a transient merchant
in the Borough.
8.
Every license issued hereunder shall be considered personal to the
applicant if an individual or, if other than an individual, personal
to the agents, servants or employees specifically identified in the
application. No license issued hereunder shall be transferable or
assignable.
9.
At all times while conducting or engaging in a regulated activity,
a licensee shall maintain in his or her possession the original license
issued by the Borough or a true and correct copy thereof and shall
produce the same for inspection together with picture identification,
upon request. The licensee shall display any and all identifications
issued by the Borough in a conspicuous place or manner, so as to be
easily viewed by members of the public.
[Ord. 1123, 4/6/2015]
1.
It shall be a violation of this Part for any licensee to:
A.
Engage in regulated activities on legal holidays or on Sundays;
B.
Engage in regulated activities between the hours of 5:00 p.m. and
8:00 a.m., prevailing time, on Monday through Saturday, from November
through March, and between the hours of 7:00 p.m. and 8:00 a.m., prevailing
time, on Monday through Saturday, from April through October;
C.
Disregard any sign prohibiting soliciting, sales, peddling or the
like;
D.
Conduct or engage in any activities beyond the express scope of the
application or license or permit;
E.
Fail to have on his person at all times while engaged in regulated
activities the original, or true and correct copy, of the license
or permit and an official form of picture identification;
F.
Fail or refuse to produce upon request for inspection the original,
or a true and correct copy, of the license or permit and an official
form of picture identification;
G.
Obstruct, be or present a hazard to pedestrian or vehicular traffic
on the public streets, roads, sidewalks or other rights-of-way within
the Borough;
H.
Erect or use any structure, whether temporary or permanent, in connection
with any regulated activities;
I.
Fail or refuse to leave or exit the premises of another upon request;
J.
Engage in any acts or practices prohibited by the laws of this commonwealth
relating to unfair trade practices and consumer protection;
K.
Solicit or attempt to solicit at any property identified on the "Do
Not Solicit" list; and
L.
Violate any of the provisions of this Part.
[Ord. 1123, 4/6/2015]
1.
The following shall constitute grounds for suspension, revocation
or nonrenewal of a license issued hereunder:
A.
The making of any false statement by an applicant in connection with the application process described in § 13-404 above;
B.
The commission of a prohibited act in the Borough by the licensee
or any of its agents, servants or employees;
C.
The conviction of the licensee or any of his agents, servants or
employees of any offense involving a violent crime, a crime of crimen
falsi or a crime which is punishable by a term of incarceration of
one year or more, regardless of where committed;
D.
A judicial determination that the licensee has violated any law or
regulation relating to unfair trade practices, consumer protection
or the solicitation of charitable contributions, regardless of where
committed; and
2.
The decision to suspend (including length of suspension), revoke or refuse to renew a license shall in the first instance be made by the Borough Manager, who shall state with specificity the grounds thereof to the applicant or licensee, as the case may be, in writing. In making his decision, the Borough Manager shall consider whether there has occurred any violations of this Part, the number, type and severity of the violations and the past history of the applicant/licensee as reflected in the information provided or obtained in the application process described in § 13-404, above. The applicant/licensee shall have a right of appeal as more particularly described in § 13-410 below.
[Ord. 1123, 4/6/2015]
The Borough Manager is hereby authorized to establish, publicize,
and maintain a list of properties which, at the request of the owner
or occupant, shall not be subject to any regulated activity, and the
Borough shall provide a copy of the list to every person receiving
a license under this Part. The list shall identify only the properties
and shall otherwise contain no personal information regarding the
property owners or occupants. The property shall remain on the list
for a period of not more than five years, or until such time that
the Borough is notified to remove the property from the list, or the
property changes ownership. Property owners may request to remain
on the list at the end of the five-year period.
[Ord. 1123, 4/6/2015]
1.
The following persons shall be exempt from the requirements of this
Part:
A.
Farmers selling their own produce;
B.
Persons selling personal property if the proceeds of the sale are
to be applied to a charitable or philanthropic purpose;
C.
A manufacturer or producer of bread or bakery products, meat or meat
products and milk or milk products, exclusive of ice cream or another
frozen dessert;
D.
Insurance companies and their agents or brokers authorized to transact
business under the insurance laws of this commonwealth;
E.
Persons engaged in regulated activities on private property with
the consent of the owner of the property;
F.
Persons engaged in protected, speech under the First Amendment to
the Constitution of the United States of America and Article 1, Section
7, of the Constitution of the Commonwealth of Pennsylvania.
[Ord. 1123, 4/6/2015]
1.
The application fee for a Class 1 license shall be $30 per individual.
2.
The application fee for a Class 2 license shall be $150 per person.
3.
The following licensees shall be exempt from the payment of a license
fee:
A.
Charitable or nonprofit organizations who are then acting in the
course and scope of fundraising activities for and on behalf of such
organizations; and
B.
Persons acting in full compliance with, and subject to, the Solicitation
of Funds for Charitable Purposes Act of 1990, 10 P.S. § 162.1
et seq.
4.
Council may, by resolution, adopt a separate fee for the issuance
of a transient merchant identification card.
5.
Any fee authorized hereunder shall be subject to modification upon
resolution of Council.
[Ord. 1123, 4/6/2015]
Any person who, upon submission of an application to the Borough,
is denied a license (including a renewal thereof) or who has had his
license suspended or revoked may appeal such action to Borough Council
within 30 days of the date of such action by the Borough. Upon receipt
of an appeal hereunder, the parties shall proceed in accordance with
the Local Agency Act, 2 Pa.C.S.A. § 102 et seq., and the
requirements of all current Borough ordinances and resolutions or
any successor ordinances or resolutions thereto.
[Ord. 1123, 4/6/2015]
Any person who shall violate any provision of this Part shall,
upon conviction thereof before a District Justice, be subject to a
penalty or fine in an amount not less than $100 and not more than
$1,000, together with the costs of prosecution and attorneys' fees;
and in default of payment of such penalty, fine or costs, to imprisonment
for a term not to exceed 30 days for each such violation. Each day
or portion thereof that such violation continues shall constitute
a separate offense. The provisions of this Part shall be enforced
in the same manner as provided for the enforcement of summary offenses
under the Pennsylvania Rules of Criminal Procedure.
