[HISTORY: Adopted by the Board of Trustees of the Village of Montgomery 11-15-2016 by L.L. No. 4-2016. Amendments noted where applicable]
Peace and Good Order — See Ch. 83.
Residents of the Village have an inalienable interest in their personal safety, comfort, well-being and privacy in their homes as well as their ability to provide and receive information regarding matters of personal belief, political or charitable activities and goods and services lawfully in commerce.
The Village has a substantial interest in protecting the well-being, tranquility, personal safety and privacy of its residents, which includes protecting residents from unwanted, harassing and disruptive intrusions and solicitations upon residential property. The Village also has a substantial interest in protecting residents from fraudulent, misleading or otherwise unfair consumer sales practices, deceptive door-to-door solicitations and criminal activity.
There must be balance between these substantial interests of the Village and its residents and the effect of the regulations in this chapter on any rights of those regulated. Based upon the collective experiences derived from regulating business activity, protecting persons and property from criminal conduct, responding to the inquiries and complaints of residents regarding door-to-door and in-home canvassing and solicitation, the experience of its law enforcement officers and those affected by door-to-door and in-home canvassing and solicitation, as well as judicial decisions outlining the boundaries of constitutional protections afforded and denied persons seeking to engage in door-to-door and in-home canvassing and solicitation, the Village adopts this chapter to promote the Village's substantial interests in respecting residents' decisions regarding privacy in their homes, protecting persons from criminal conduct, providing equal opportunity to advocate for and against religious beliefs, political positions and charitable activities and permitting truthful, nonfraudulent and nonmisleading door-to-door solicitation regarding lawful goods and services in intrastate or interstate commerce that does not violate the property rights of any property owner or resident of the Village.
The Village determines that the procedures, rules and regulations set forth in this chapter are appropriately and narrowly tailored to preserve and protect the Village interests referred to herein while at the same time balancing the rights of those regulated.
For the purposes of this chapter, the following definitions shall apply:
- Speech or conduct intended to inform, promote or support religious beliefs, political positions or charitable activities.
- APPEALS OFFICER
- The Board of Trustees or its designee, who is responsible for receiving information from the Village and the appellant regarding the denial, suspension or revocation of a certificate and issuing a decision as required by this chapter.
- The person or entity appealing the denial, suspension or revocation of a certificate.
- An individual who is at least 16 years of age and not a corporation, partnership, limited-liability company or other lawful entity who applies for a certificate permitting door-to-door solicitation.
- APPLICATION FORM
- A standardized form provided by the Village to an applicant to be completed and submitted as part of registration.
- A commercial enterprise licensed by the Village as a person or entity having a fixed or temporary physical location within the Village.
- A temporary, annual or renewal certificate permitting door-to-door solicitation in the Village applied for or issued pursuant to the terms of this chapter.
- A. Includes any person, joint venture, partnership, limited-liability company, corporation, association, group or other entity that is:
- (1) A benevolent, educational, voluntary health, philanthropic, humane, patriotic, religious, social welfare or advocacy, public health, environmental, conservation, civic organization, for the benefit of a public safety, law enforcement or firefighter's fraternal association or otherwise established for any charitable purpose.
- (2) Tax exempt under applicable provisions of the Internal Revenue Code of 1986 as amended and qualified to solicit and receive tax deductible contributions from the public for charitable purposes.
- B. "Charitable organization" includes a chapter, branch, area, or office or similar affiliate or any person soliciting contributions within the State for a charitable organization that has its principal place of business outside the Village or the State of New York.
- COMPLETED APPLICATION
- A fully completed application form, two copies of original identification relied on by the applicant to establish proof of identity, a police background check and the tendering of fees.
- CRIMINAL CONVICTION
- The final entry of a conviction, whether by plea of no contest, guilty, entry of a judicial or jury finding of guilt, which has not been set aside on appeal or pursuant to a writ of habeas corpus.
- DOOR-TO-DOOR SOLICITATION
- The practice of engaging in or attempting to engage in conversation with any person at a residence while making or seeking to make or facilitate a home solicitation sale or attempting to further the sale of goods or services.
- Includes a corporation, partnership, limited-liability company or other lawful organization, society or association.
- One or more tangible items, wares, objects of merchandise, perishables of any kind, subscriptions or manufactured products offered, provided or sold.
- HOME SOLICITATION SALE
- To make or attempt to make a sale of goods or services by a solicitor at a residence by means of door-to-door solicitation regardless of the means of payment or consideration used for the purchase, the time of delivery of the goods or the previous or present classification of the solicitor as a solicitor, peddler, hawker, itinerant merchant or other similar description.
- LICENSING OFFICER
- The Village Clerk.
- POLITICAL POSITION
- Any actually held belief or information for, against or in conjunction with any political, social, environmental or humanitarian belief or practice.
- REGISTERED SOLICITOR
- Any person who has been issued a current certificate by the Village.
- The process used by the Village licensing officer to accept a completed application and determine whether or not a certificate will be denied, granted or suspended.
- RELIGIOUS BELIEF
- Any sincerely held belief or information for, against or in conjunction with any theistic, agnostic or atheistic assumption, presumption or position or religious doctrine, dogma or practice, regardless of whether or not the belief or information is endorsed by any other person or public or private entity.
- Any living unit contained within a building or structure that is occupied by any person as a dwelling consistent with the zoning laws of the Village, together with the lot or other real property on which the living unit is located. This does not include the sidewalk, public street or public rights-of-way.
- SALE OF GOODS OR SERVICES
- The conduct and agreement of a solicitor and a competent individual in a residence regarding a particular good(s) or service(s) that entitles the consumer to rescind the same within three days under any applicable federal, state or local law.
- Those intangible goods or personal benefits offered, provided or sold to a competent individual of a residence.
- SOLICITING or SOLICIT or SOLICITATION
- Any of the following activities:
- A. Seeking to obtain sales or orders for the exchange of goods, wares, merchandise or perishables of any kind, for any kind of remuneration or consideration, regardless of whether advance payment is sought;
- B. Seeking to obtain prospective customers to apply for or to purchase insurance, subscriptions to publications or publications;
- C. Seeking to obtain contributions of money or any other thing of value for the benefit of any person or entity;
- D. Seeking to obtain orders or prospective customers for goods or services;
- E. Seeking to engage individuals in conversation at a residence for the purpose of promoting or facilitating the receipt of information regarding home solicitation sale or purchase; and
- F. Other activities falling within the commonly accepted definition of soliciting, such as canvassing, hawking or peddling.
- A person(s) engaged in door-to-door solicitation.
- The written form provided by the Village wherein the applicant agrees that the Village may obtain a name/date of birth police background check on the applicant for licensing purposes under this chapter and which contains the applicant's notarized signature.
Unless otherwise exempt under this chapter, all persons desiring to engage in door-to-door solicitation, prior to doing so, shall submit a completed application to the licensing officer and obtain a certificate.
The following are exempt from registration under this chapter:
Persons specifically invited to a residence by a competent individual prior to the time of the person's arrival at the residence;
Persons soliciting in good faith for the benefit of any bona fide fraternal, educational, religious, civic, or charitable organization;
Persons delivering goods to a residence pursuant to a previously made order, or persons providing services at a residence pursuant to a previously made request by a competent individual;
Persons advocating or disseminating information for, against or in conjunction with any religious belief or political position regardless of whether goods, services or any other consideration is offered or given, with or without any form of commitment, contribution, donation, pledge or purchase.
Persons exempt from registration need not apply for, nor obtain, any other license, permit or registration from the Village to engage in door-to-door solicitation. Nothing herein is intended to interfere with or supplant any other requirement of state or federal law regarding any license, permit or certificate that a registered solicitor is otherwise required to have or maintain.
The licensing officer shall provide a standard application form for use for the registration of solicitors. Each application form shall require disclosure and reporting by the applicant of the following information, documentation and fee:
Applicant's true legal name, including any former names or aliases used during the last 10 years;
Applicant's telephone number, home address and mailing address, if different;
If different from the applicant, the name, address and telephone number of the person or entity for which the solicitation is taking place;
The address to which all notices to the applicant are to be sent;
An in-person verification by the licensing officer of the applicant's true identity by use of any of the following which bear a photograph of the applicant:
The applicant shall provide a sales tax number for either the applicant or for the person or entity for which the applicant will be soliciting;
The goods or services offered by the applicant, including any commonly known registered or trademark names;
Whether the applicant holds any other licenses, permits, registrations or other qualifications required by federal or state law to promote, provide or render advice regarding the offered goods or services;
A signed copy of a waiver whereby the applicant agrees to allow the Village to obtain a name/date of birth BCI background check on the applicant;
In addition, the applicant shall be required to affirm or deny whether he/she:
Has been convicted of a felony within the last 10 years;
Has been convicted of a misdemeanor within the last five years;
Has been incarcerated in a federal or state prison within the last five years;
Is presently on parole or probation to any court, penal institution, or governmental entity, including being under house arrest or subject to a tracking device;
Is currently subject to a protective order based upon physical or sexual abuse issued by a court of competent jurisdiction;
Has a civil judgment been entered against the applicant within the last five years indicating that the applicant has either engaged in fraud or intentional misrepresentations;
Has had a solicitation license or certificate revoked by a local government;
The applicant shall pay such fee as determined by the Village to pay for the reasonable costs of processing the application and issuing the certificate;
The applicant shall execute the application form, stating upon oath or affirmation, under penalty of perjury, that based on present knowledge and belief of the applicant, the information provided is complete, truthful and accurate.
At the time of the submission of the application, a fee shall be paid by the applicant to cover the costs of processing the application, running a police background check and issuance of the certificate and identification badge. The fee shall be upon a schedule established by the Board of Trustees as the same may be amended from time to time by a resolution of the Board.
Upon receipt of a complete application, the licensing officer shall, with the assistance of the Village Police Department, undertake a review to verify the truthfulness and completeness of the information submitted by the applicant. If, after review, the licensing officer determines that the applicant is entitled to a certificate, the licensing officer shall issue a certificate to the applicant. Said certificate shall list the name of the registered solicitor and the responsible party or entity, if any, and the date on which the certificate expires. The certificate shall be carried by the registered solicitor at all times while soliciting in the Village. In addition, the Village shall issue each registered solicitor an identification badge that shall be worn prominently on his/her person while soliciting in the Village. The identification badge shall bear the name of the Village and shall contain the name of the registered solicitor, a recent photograph of the registered solicitor and the date upon which the certificate expires.
The certificate shall not be transferable. A registered solicitor wishing to conduct door-to-door solicitation sales with different goods or services or for a different responsible person or entity must submit a written change request with the licensing officer. A new certificate based upon the amended information shall issue for the balance of time remaining on the previous certificate.
The licensing officer shall refuse to issue a certificate to an applicant for any of the following reasons:
The application is incomplete or the fees have not been paid;
The applicant has failed to adequately establish proof of identity;
A police background check indicates that the applicant has a disqualifying criminal record;
The applicant has previously been denied a certificate from the Village or has had a certificate revoked by the Village;
Since the submission of the application, a final civil judgment has been entered against the applicant indicating that the applicant has engaged in either fraud or intentional misrepresentation.
The Village may either suspend or revoke a certificate when any of the reasons warranting denial of a certificate occurs and/or for any violation of this chapter.
Upon determination of the licensing officer to deny an application or to suspend a registered solicitor's certificate, the Village shall cause written notice to be sent to the applicant or registered solicitor by the method indicated in the application. The notice shall specify the grounds for the denial or suspension, the documentation or information the Village relied upon to make the decision, the availability of the documentation for review by the applicant upon three business days' notice to the Village and the date upon which the denial or suspension shall take effect. It shall further state that the applicant or registered solicitor shall have 10 business days from the date the notice was sent to appeal the same. The denial or suspension shall remain effective unless and until the order is rescinded, overturned on appeal or determined by a court to be contrary to law or equity. Failure to appeal the suspension of a certificate shall automatically result in its revocation.
An applicant or registered solicitor whose certificate has been denied or suspended shall have the right to appeal to the Village Board of Trustees. Any appeal must be submitted by the applicant, the responsible person or entity, or their legal representative. The appeal must be submitted in writing to the Village Board within 10 business days of the decision from which the appeal is taken. Such appeal shall describe in detail the nature of the appeal, the action complained of and the grounds for the appeal. The Village Board shall review all written information submitted by the applicant or registered solicitor to the licensing officer, any additional information relied upon by the licensing officer as a basis for the denial or suspension and any additional information supplied by the Village, applicant or registered solicitor. The Village Board will render a decision no later than 15 calendar days from the date the appeal was received by the Village. The Village Board may affirm the denial or suspension of the certificate by the licensing officer, in which case the suspended certificate shall be deemed revoked. Alternatively, the Village Board may reverse the denial or suspension of the certificate if it determines that the licensing officer made a material mistake of fact or law. The decision of the Board shall be final and conclusive. Nothing herein shall impede the applicant or registered solicitor from seeking relief from a court of competent jurisdiction.
No person or registered solicitor shall:
Solicit at a residence before 8:00 a.m. or after 6:00 p.m. unless the person or solicitor has been specifically invited into the residence by a competent occupant.
Make any materially false, fraudulent or otherwise misleading statement in the course of soliciting.
Fail to immediately disclose to a resident during face-to-face solicitation his/her name, the name and address of the entity with whom the solicitor is associated, and the purpose of the solicitor's contact with the resident.
Represent directly or by implication that issuance of a certificate implies any endorsement by the Village of the solicitor, or his/her goods or services.
Solicit or canvass any person whose name and property address is included on the list maintained by the Village Clerk of persons requesting that they not be solicited or canvassed.
Enter upon private property which displays a sign or other type of notice indicating that the resident does not desire to receive and/or does not invite solicitors.
Advertise for sale or rental, property which is not actually for sale or rental.
Place, canvass, distribute or otherwise deliver any letter, sign, note, pamphlet, advertisement, flyer, leaflet, placard or other written material to or upon a private residence purporting an offer for sale or purchase for any property that is not in fact offered for sale by the owner of said property.
Refer directly or indirectly or by implication to race, color, creed, ethnicity or sexual orientation in any advertisement or other solicitation offering real property for sale or rental.
Promote, influence or attempt to promote or influence a property owner, resident or tenant to list for sale, sell or remove from a lease, real property by referring to race, color, creed, ethnicity or sexual orientation of neighbors, prospective buyers, or other tenants or prospective tenants of real property.
Any owner, tenant or occupant of a residence may give notice of a desire to refuse solicitors by displaying a "No Solicitation" sign, which should be posted on or near the property line adjacent to the sidewalk or other entrance area leading upon or to the residence. The display of such sign shall be deemed to constitute notice to any solicitor that the inhabitant of the residence does not desire to receive and/or does not invite solicitors. It shall be the responsibility of the solicitor, including those solicitors who are exempt from registration, to check each residence for the presence of any such notice before entering the property.
In addition, any person who owns, rents or otherwise legally occupies a residence and/or business in the Village who does not wish to have anyone enter upon or call upon the residence or business to solicit may inform the Village Clerk Office of the same, in writing, and the Village Clerk's Office shall maintain and make available for public inspection a list of those persons that do not want solicitors to enter upon or call upon their residence or place of business. Such list shall be given to each person who files an application for a solicitation certificate in the Village.
The Police Department of the Village of Montgomery is hereby designated and charged with enforcing the provisions of this Chapter and shall have the power, right and authority to issue an appearance ticket, as the same is defined in Article 150 of the Criminal Procedure Law of the State of New York, for the violation of any section of this chapter.
Any persons claiming to be aggrieved by an alleged unlawful practice forbidden by this chapter may, by himself/herself or by an attorney at law, make, sign and file a complaint directly with the Police Department for investigation.
Any person who violates any term or provision of this chapter, upon conviction thereof, shall be guilty of an offense punishable by a fine of at least $100 but not more than $250, or by imprisonment for a term not exceeding 15 days, or by both such fine and imprisonment. The continuation of an offense shall constitute, for each day the offense is committed, a separate and distinct violation hereunder.