[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]
A.
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.
B.
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.
C.
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.
D.
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.
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.
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.
Includes any person, joint venture, partnership, limited-liability
company, corporation, association, group or other entity that is:
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.
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.
"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.
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.
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.
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.
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.
The Village Clerk.
Any actually held belief or information for, against or in
conjunction with any political, social, environmental or humanitarian
belief or practice.
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.
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.
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.
Any of the following activities:
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;
Seeking to obtain prospective customers to apply for or to purchase
insurance, subscriptions to publications or publications;
Seeking to obtain contributions of money or any other thing
of value for the benefit of any person or entity;
Seeking to obtain orders or prospective customers for goods
or services;
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
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.
A.
The following are exempt from registration under this chapter:
(1)
Persons specifically invited to a residence by a competent individual
prior to the time of the person's arrival at the residence;
(2)
Persons soliciting in good faith for the benefit of any bona fide
fraternal, educational, religious, civic, or charitable organization;
(3)
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;
(4)
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.
B.
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:
A.
Applicant's true legal name, including any former names or aliases
used during the last 10 years;
B.
Applicant's telephone number, home address and mailing address, if
different;
C.
If different from the applicant, the name, address and telephone
number of the person or entity for which the solicitation is taking
place;
D.
The address to which all notices to the applicant are to be sent;
E.
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:
F.
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;
G.
The goods or services offered by the applicant, including any commonly
known registered or trademark names;
H.
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;
I.
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;
J.
In addition, the applicant shall be required to affirm or deny whether
he/she:
(1)
Has been convicted of a felony within the last 10 years;
(2)
Has been convicted of a misdemeanor within the last five years;
(3)
Has been incarcerated in a federal or state prison within the last
five years;
(4)
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;
(5)
Is currently subject to a protective order based upon physical or
sexual abuse issued by a court of competent jurisdiction;
(6)
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;
(7)
Has had a solicitation license or certificate revoked by a local
government;
K.
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;
L.
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.
A.
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.
B.
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.
A.
The licensing officer shall refuse to issue a certificate to an applicant
for any of the following reasons:
(1)
The application is incomplete or the fees have not been paid;
(2)
The applicant has failed to adequately establish proof of identity;
(3)
A police background check indicates that the applicant has a disqualifying
criminal record;
(4)
The applicant has previously been denied a certificate from the Village
or has had a certificate revoked by the Village;
(5)
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.
B.
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.
C.
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:
A.
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.
B.
Make any materially false, fraudulent or otherwise misleading statement
in the course of soliciting.
C.
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.
D.
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.
E.
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.
F.
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.
G.
Advertise for sale or rental, property which is not actually for
sale or rental.
H.
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.
I.
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.
J.
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.
A.
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.
B.
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.
A.
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.
B.
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.
