[HISTORY: Adopted by the Town Board of the
Town of Blooming Grove 7-12-2016 by L.L. No. 6-2016.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 173,
Peddling and Soliciting, adopted 12-8-1975 by L.L. No. 4-1975 as Ch.
117 of the 1975 Code, as amended.
This chapter shall be known and may be cited as the "Peddling
and Residential Solicitation Law" and shall apply to the Town of Blooming
Grove, New York (the "Town"). This chapter replaces and supersedes
the former chapter 173, entitled "Peddling and Soliciting."
A.
Residents of the Town have an inalienable interest in their personal
safety, comfort, well-being, and privacy in their residences 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 Town 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 Town 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 a balance between these substantial interests of the
Town and its residents and the effect of the regulations in this chapter
on any rights of those regulated. Based on 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 Town adopts this chapter
to promote the Town's substantial interests in:
(1)
Respecting residents' decisions regarding privacy in their residences;
(2)
Protecting persons from criminal conduct;
(3)
Providing equal opportunity to advocate for and against religious
beliefs. political positions, or charitable activities; and
(4)
Permitting truthful, nonfraudulent, and nonmisleading door-to-door
solicitation regarding lawful goods or services in intrastate or interstate
commerce that does not violate the property rights of any property
owner or resident in the Town.
D.
The Town finds that the procedures, rules, and regulations set forth
in this chapter are appropriately and narrowly tailored to preserve
and protect the Town interests referred to herein, while at the same
time balancing the rights of those regulated.
E.
This chapter is authorized by the New York State Constitution Article
IX, § 2, the provisions of the New York Municipal Home Rule
Law, and the provisions of the Statute of Local Governments.
A.
Persons exempt from registration need not apply for, nor obtain,
any other license, permit, or registration from the Town to engage
in door-to-door solicitation.
B.
Any business licensed by the Town under another Town ordinance that
uses employees, independent contractors, or agents for door-to-door
solicitation in an effort to provide any tangible or intangible benefit
to the business shall be required to have such solicitors obtain a
certificate, unless otherwise exempt from registration.
C.
Those responsible persons or entities associated with registered
solicitors need not apply for, nor obtain, any other license, permit,
or registration from the Town, provided they do not establish a temporary
or fixed place of business in the Town.
D.
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.
For the purposes of this chapter, the following definitions
shall apply:
Speech or conduct intended to inform, promote, or support
a political position or charitable activities.
The Town Board or designee of the Town responsible for receiving
the information from the Town and appellant regarding the denial or
suspension of a certificate and issuing a decision as required by
this chapter.
The person or entity appealing the denial or suspension of
a certificate, either personally as an applicant or registered solicitor,
or on behalf of the applicant or registered solicitor.
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 Town to an applicant
to be completed and submitted as part of registration.
An original or copy, dated no older than 180 days prior to
the date of the application, of either a New York State Bureau of
Criminal Identification-verified criminal history report personal
to the applicant; or verification by the New York State Bureau of
Criminal Identification that no criminal history rising to the level
of a disqualifying status exists for the applicant.
A commercial enterprise licensed by the Town as a person
or entity under this title, having a fixed or temporary physical location
within the Town.
A temporary, annual, or renewal certificate permitting door-to-door
solicitation in the Town, applied for or issued pursuant to the terms
of this chapter.
Advocating by persons or entities that either are, or support,
a charitable organization.
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 or eleemosynary, social welfare or advocacy,
public health, environmental or conservation, or civic organization;
For the benefit of a public safety, law enforcement, or firefighter
fraternal association; or
Established for any charitable purpose; and
That is 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 Town or State of New York.
A person claiming or appearing to be at least 18 years of
age and of sufficiently sound mind and body to be able to engage in
rational thought, conversation, and conduct.
A fully completed application form, a BCI, two copies of
the original identification relied on by the applicant to establish
proof of identity, and the tendering of fees.
The final entry of a conviction, whether by a plea of no
contest, guilty, or 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 criminal conviction is that offense of which the applicant
or registered solicitor was convicted, without regard to the reduced
status of the charge after completion of conditions of probation or
parole, and charges dismissed under a plea in abeyance or a diversion
agreement.
Anything specifically defined in this chapter as requiring
the denial or suspension of a certificate, and any of the following:
The applicant or registered solicitor has been criminally convicted
of a felony within the last 10 years;
The applicant or registered solicitor has been incarcerated
in a federal or state prison within the past five years;
A final civil judgment has been entered against the applicant
or registered solicitor within the last five years, indicating that:
The applicant or registered solicitor is currently on parole
or probation to any court, penal institution, or governmental entity,
including being under house arrest or subject to a tracking device;
The applicant or registered solicitor has an outstanding arrest
warrant from any jurisdiction; or
The applicant or registered solicitor is currently subject to
a protective order, based on physical or sexual abuse, issued by a
court of competent jurisdiction.
The practice of engaging in or attempting to engage in conversation
with any person at a residence, whether or not that person is a competent
individual, while making or seeking to make or facilitate a home solicitation
sale, or attempting to further the sale of goods and/or services.
Includes a corporation, partnership, limited liability company,
or other lawful entity, organization, society or association.
The cost charged to the applicant or registered solicitor
for the issuance of a certificate and/or identification badge, which
shall not exceed the reasonable costs of processing the application
and issuing the certificate and/or identification badge.
A civil judgment that would be recognized under state law
as a judgment to which collateral estoppel would apply.
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 Town Clerk shall be responsible for receiving from an
applicant or registered solicitor the completed application and either
granting, suspending, or denying the applicant's certificate.
[Amended 5-9-2017 by L.L.
No. 3-2017]
A reasonably visible and legible sign that states "No Soliciting,"
"No Solicitors," "No Salespersons," or "No Trespassing," or words
of similar import.
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
Town.
The process used by the Town 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 any building or structure
that is occupied by any person as a dwelling, consistent with the
zoning laws of the Town, 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.
That person or entity responsible to provide the following
to an applicant, registered solicitor, and the competent individual
in a residence to whom a sale of goods or services is made or attempted
to be made by means of a home solicitation sale:
Maintaining a state sales tax number, a special events sales
tax number, computing the sales taxes owing from any sale of goods
or services, paying the sales taxes, and filing any required returns
or reports;
Facilitating and responding to requests from consumers who desire
to cancel the sale pursuant to applicable contractual rights or law;
and
Refunding any monies paid or reversing credit card charges to
those persons who timely rescind any sale pursuant to applicable contractual
rights or law.
The conduct and agreement of a solicitor and the 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 an individual 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 information for an appeal of a denial or suspension of
a certificate, submitted in any type of written statement to the Town
offices by certified, registered, priority, overnight or delivery
confirmation mail, facsimile, or hand delivery.
An oral, written, or electronic report:
That is submitted to and documented by the Town;
By any of the following:
A competent individual who is willing to provide law enforcement
or other Town employees with publicly available identification of
their name, address, and any other reliable means of contact;
Town law enforcement or licensing officer; or
Any other regularly established law enforcement agency at any
level of government;
That provides any of the following information regarding a registered
solicitor:
Documented verification of a previously undisclosed disqualifying
status of a registered solicitor;
Probable cause that the registered solicitor has committed a
disqualifying status which has not yet been determined to be a disqualifying
status;
Documented, eyewitness accounts that the registered solicitor
has engaged in repeated patterns of behavior that demonstrates failure
by the registered solicitor to adhere to the requirements of this
chapter; or
Reasonable cause that continued licensing of the registered
solicitor creates exigent circumstances that threaten the peace, health,
safety, or general welfare of any individuals or entities within the
Town.
The written form provided to the applicant by the Town wherein
the applicant agrees that the Town may obtain a name/date of birth
BCI background check on the applicant for licensing purposes under
this chapter, and which contains applicant's notarized signature.
The following are exempt from registration under this chapter:
A.
Persons specifically invited to a residence by a competent individual
prior to the time of the person's arrival at the residence;
B.
Persons soliciting in good faith for the benefit of any bona fide
fraternal, educational, religious, or charitable organization shall
have otherwise been certified or otherwise been duly qualified as
required by law or by any competent governmental body or agency;
C.
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;
D.
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; and
E.
Persons representing a nonprofit or charitable organization. The
charitable exemption shall apply to students soliciting contributions
to finance extracurricular social, athletic, artistic, scientific
or cultural programs, provided that the solicitation has been approved
in writing by the school administration and filed with the Town, and
that such student solicitors carry current picture student identification
from the educational institution for which they are soliciting.
F.
All persons and organizations soliciting funds solely for charitable
or other purposes, who are exempted from the license requirements
under this chapter, shall maintain and keep records identifying all
persons soliciting funds within the Town, and such records shall contain
at least the name and the address of the person soliciting, the areas
solicited and the date or dates of solicitation. Said records shall
be made available for inspection by the Town Clerk upon request.
[Amended 5-9-2017 by L.L.
No. 3-2017]
A.
Unless otherwise authorized, permitted, or exempted pursuant to the
terms and provisions of this chapter, the practice of being in and
upon a private residence within the Town by solicitors, for the purpose
of home solicitation sales or to provide goods or services, is prohibited
and is punishable as set forth in this chapter.
B.
Additionally, no person shall engage in the following acts within
the Town:
(1)
Promote, influence, or attempt to promote or influence a property
owner, occupant, or tenant to list for sale, sell, or remove from
a lease real property by referring to race, color, sexual orientation,
ethnicity, or religious affiliation of neighbors, prospective buyers
or other occupants or prospective occupants of real property.
(2)
Induce directly or indirectly, or attempt to induce directly or indirectly,
the sale or listing for sale of real property by representing that
the presence or anticipated presence of persons of any particular
race, religion, or national origin in the area has resulted in or
may result in:
(3)
Make any representation or misrepresentation concerning the listing
for sale, or the anticipated listing for sale, or the sale of any
real property in any residentially zoned areas for the purpose of
inducing or attempting to induce the sale or listing for sale of other
real property in such area.
(4)
Make any representation to any prospective purchaser that any block,
neighborhood or area has, will or might undergo an adverse change
with respect to the religious, racial, or ethnic composition of the
block, neighborhood or area for the purpose of discouraging the purchase
of property in a particular area.
(5)
Place, canvass, or distribute 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.
(6)
Advertise for sale or rental property which is nonexistent or which
is not actually for sale or rental.
(7)
Engage in or hire or conspire with others to commit acts or activities
of any nature, the purpose of which is to coerce, create or play upon
unjustified fear with the purpose of inducing or attempting to induce
the sale or listing for sale of real property.
(8)
Solicit or canvass any person whose name and property address is
included on the list maintained by the Town Clerk of persons requesting
that they not be canvassed or solicited.
(9)
To engage in any economic reprisal or any other form of intimidation
against any person because that person has filed a complaint, testified,
assisted or participated in any manner in any investigation, proceeding
or conference under the terms of this chapter.
(10)
To aid, abet, incite, compel or coerce any person to engage
in any of the practices forbidden by this chapter or to obstruct or
prevent any person from complying with the provisions of this chapter.
(11)
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.
(12)
Solicit or attempt to solicit the sale or rental or the listing
for sale or rental of real property without furnishing, in written
form, to the owner or occupier of such real property the name of the
person or organization soliciting such sale, rental or listing.
Unless otherwise exempt under this chapter, all persons desiring
to engage in door-to-door solicitation within the Town, prior to doing
so, shall submit a completed application to the licensing officer
and obtain a certificate.
The licensing officer shall provide a standard application form
for use for the registration of solicitors. Upon request to the licensing
officer, or as otherwise provided, any person or entity may obtain
in person, by mail, or facsimile a copy of this application form.
Each application form shall require disclosure and reporting by the
applicant of the following information, documentation, and fee:
A.
Review of written disclosures. An affirmation that the applicant
has received and reviewed the disclosure information required by this
chapter.
B.
Contact information.
(1)
Applicant's true, correct and legal name, including any former
names or aliases used during the last 10 years;
(2)
Applicant's telephone number, home address and mailing address,
if different;
(3)
If different from the applicant, the name, address, and telephone
number of the responsible person or entity; and
(4)
The address by which all notices to the applicant required under
this chapter are to be sent.
C.
Proof of identity.
(1)
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 said applicant:
(2)
Upon verification of identity, the original identification submitted
to establish proof of identity shall be returned to the applicant.
D.
Proof of registration. The applicant shall provide proof that either
the applicant, or the responsible person or entity, has registered
with all required regulatory authorities.
E.
Sales tax number. The applicant shall provide a sales tax number
for either the applicant, or for the responsible person or entity
for which the applicant will be soliciting.
F.
Marketing information.
(1)
The goods or services offered by the applicant, including any commonly
known, registered or trademarked names;
(2)
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.
H.
Responses to questions regarding "disqualifying status." The applicant
shall be required to affirm or deny each of the following statements
on the application form:
(3)
Has the applicant been criminally convicted of a felony within the
last 10 years;
(4)
Has the applicant been incarcerated in a federal or state prison
within the past five years;
(6)
Has a final civil judgment been entered against the applicant within
the last five years, indicating that:
(7)
Is the applicant currently on parole or probation to any court, penal
institution, or governmental entity, including being under house arrest
or subject to a tracking device;
(8)
Does the applicant have an outstanding arrest warrant from any jurisdiction;
or
(9)
Is the applicant currently subject to a protective order based on
physical or sexual abuse issued by a court of competent jurisdiction.
I.
Fee. The applicant shall pay such fees as determined applicable by
the Town, which shall not exceed the reasonable cost of processing
the application and issuing the certificate and/or identification
badge.
J.
Execution of application. The applicant shall execute the application
form, stating upon oath or affirmation, under penalty of perjury,
that, based on the present knowledge and belief of the applicant,
the information provided is complete, truthful and accurate.
The application form shall be accompanied by written disclosures
notifying the applicant of the following:
A.
The applicant's submission of the application authorizes the
Town to verify information submitted with the completed application
including:
B.
The Town may consult any publicly available sources for information
on the applicant, including, but not limited to, databases for any
outstanding warrants, protective orders, or civil judgments;
C.
Establishing proof of identity is required before registration is
allowed;
D.
Identification of the fee amount that must be submitted by applicant
with a completed application;
E.
The applicant must submit a BCI background check with a completed
application;
F.
To the extent permitted by state and/or federal law, the applicant's
BCI background check shall remain a confidential, protected, private
record not available for public inspection;
G.
The Town will maintain copies of the applicant's application
form, proof of identity, and identification badge. These copies will
become public records available for inspection on demand at the Town
offices whether or not a certificate is denied, granted, or renewed;
H.
The criteria for disqualifying status, denial, or suspension of a
certificate under the provisions of this chapter;
I.
That a request for a temporary certificate will be granted or denied
the same business day that a completed application is submitted.
The licensing officer shall not begin the registration process
unless the applicant has submitted a completed application. The original
identification submitted to establish proof of identity shall be returned
after the licensing officer verifies the applicant's identity.
A copy of the identification may be retained by the licensing officer.
If an original BCI background check is submitted by the applicant,
the licensing officer shall make a copy of the BCI and return the
original to the applicant.
The licensing officer shall review the completed application
submitted by the applicant and issue a certificate in accordance with
the following:
A.
Temporary certificate.
(1)
A temporary certificate shall issue allowing the applicant to immediately
begin door-to-door solicitation upon the following conditions:
(a)
Applicant's submission of a completed application;
(b)
Applicant's submission of the required fee;
(c)
Applicant establishes proof of identity;
(d)
The applicant's representations on the application form
do not affirmatively show a disqualifying status;
(e)
The BCI does not affirmatively show a disqualifying status;
and
(f)
The applicant has not previously been denied a certificate by
the Town or had a certificate revoked for grounds that still constitute
a disqualifying status under this chapter.
(2)
A temporary certificate will automatically expire after 25 calendar
days from issuance, or upon grant or denial of an annual certificate,
whichever period is shorter.
B.
Annual certificate. Within 25 calendar days of the issuance of a
temporary certificate, the Town shall:
(1)
Take any and all actions it deems appropriate to verify the truthfulness
and completeness of the information submitted by the applicant, including
but not limited to those disclosed with the application form.
(2)
Issue written notice to the applicant and the responsible person
or entity, if any, that the applicant either:
C.
Renewal certificate. An annual certificate shall be valid for one year from the date of issuance of the temporary certificate and shall expire at 12:00 midnight on the anniversary date of issuance. Any annual certificate that is not suspended, revoked, or expired may be renewed upon the request of the registered solicitor and the submission of a new completed application and payment of the fee, unless any of the conditions for the denial, suspension or revocation of a certificate are present as set forth in § 173-15 or a disqualifying status is present.
A.
Certificate form. Should the licensing officer determine that the
applicant is entitled to a certificate, the licensing officer shall
issue a certificate to the applicant. The certificate shall list the
name of the registered solicitor and the responsible person or entity,
if any, and the date on which the certificate expires. The certificate
shall be dated and signed by the license officer. The certificate
shall be carried by the registered solicitor at all times while soliciting
in the Town.
B.
Identification badge. With both the temporary and annual certificates,
the Town shall issue each registered solicitor an identification badge
that shall be worn prominently on his or her person while soliciting
in the Town. The identification badge shall bear the name of the Town
and shall contain:
The licensing officer shall maintain and make available for
public inspection a copy or record of every completed application
received, and the certificate or written denial issued by the Town.
The applicant's BCI background check shall remain a confidential,
protected, private record not available for public inspection. The
licensing officer may furnish to the head of the Town's law enforcement
agency a listing of all applicants, those denied, and those issued
a certificate.
Certificates shall be issued only in the name of the applicant
and shall list the responsible party or entity, if any. The certificate
shall be nontransferable. A registered solicitor desiring to facilitate
or attempt to facilitate home solicitation sales with different goods
or service or responsible person or entity from those designated in
the originally submitted completed application shall submit a written
change request to the licensing officer. A new certificate based on
the amended information shall issue for the balance of time remaining
on the solicitor's previous certificate before the amendment
was filed. Before the new certificate is given to the registered solicitor,
the registered solicitor shall obtain a revised identification badge
from the Town, after payment of the fee for the identification badge.
A.
Denial. Upon review, the licensing officer shall refuse to issue
a certificate to an applicant for any of the following reasons:
(1)
Denial of temporary certificate.
(a)
The application form is not complete;
(c)
The completed application or BCI indicates that the applicant
has a disqualifying status; or
(d)
The applicant has previously been denied a certificate by the
Town, or has had a certificate revoked for grounds that still constitute
a disqualifying status under this chapter.
(2)
Denial of annual certificate.
(a)
The information submitted by the applicant at the time of the
granting of the temporary certificate is found to be incomplete or
incorrect;
(b)
Since the submission of the completed application, the applicant
is subject to a previously undisclosed or unknown disqualifying status;
(c)
Failure to complete payment of the fees;
(d)
Since the submission of the application, the Town has received
a substantiated report regarding the past or present conduct of the
applicant;
(e)
Since the submission of the application, the Town or other governmental
entity has either criminally convicted or obtained a civil injunction
against the applicant for violating this chapter or similar federal,
state, or municipal laws in a manner rising to the level of a disqualifying
status; or
(f)
Since the submission of the application, a final civil judgment
has been entered against the applicant indicating that:
(3)
Denial of annual certificate renewal.
(a)
The information submitted by the applicant when seeking renewal
of a certificate is found to be incomplete or incorrect;
(b)
Since the submission of the renewal application, the applicant
is subject to a previously undisclosed or unknown disqualifying status;
(c)
Failure to complete payment of the fees;
(d)
Since the submission of the application or granting of a certificate,
the Town has received a substantiated report regarding the past or
present conduct of the solicitor;
(e)
The Town or other governmental entity has either criminally
convicted or obtained a civil injunction against the applicant for
violating this chapter or similar federal, state, or municipal laws
in a manner rising to the level of a disqualifying status; or
(f)
Since the submission of the application, a final civil judgment
has been entered against the applicant indicating that:
B.
Suspension or revocation. The Town shall either suspend or revoke
a certificate when any of the reasons warranting the denial of a certificate
occurs and/or for any violation of this chapter.
C.
Notice of denial or suspension. Upon determination of the licensing officer to deny an applicant's completed application or to suspend a registered solicitor's certificate, the Town shall cause written notice to be sent to the applicant or registered solicitor by the method indicated in the completed application. The notice shall specify the grounds for the denial or suspension, the documentation or information the Town relied on to make the decision, the availability of the documentation for review by applicant upon three business days' notice to the Town, and the date upon which the denial or suspension of the certificate shall take effect. It shall further state that the applicant or registered solicitor shall have 10 business days from the receipt of the notice of denial or suspension to appeal the same. The denial or suspension of the certificate shall be effective no sooner than three calendar days from the date the notice is sent, unless that suspension is because of exigent circumstances outlined in Section 173-4,[1] in which case the suspension is effective immediately.
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 equity or law. Failure to appeal the suspension
of a certificate automatically results in its revocation.
[1]
Editor's Note: See the definition of "substantiated report,"
Subsection C(4).
An applicant or registered solicitor whose certificate has been
denied or suspended shall have the right to appeal to the Town Board
or its designee. Any appeal must be submitted by either the applicant,
the responsible person or entity, or legal counsel for either who
documents the relationship with the applicant or responsible person
or entity; or is licensed or authorized by the state of New York to
do so, and makes the assertion of an agency relationship. The following
procedures and requirements shall apply:
A.
Any appeal must be submitted in writing to the Town Clerk, with a
copy to the license officer, 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 appeal.
B.
Upon request of the applicant or registered solicitor, within one
business day the Town will make available any information upon which
it relied in making the determination to either deny or suspend the
certificate.
C.
The appeals officer shall review, de novo, all written information
submitted by the applicant or registered solicitor to the licensing
officer, any additional information relied upon by the licensing officer
as the basis for denial, suspension or revocation, and any additional
information supplied by the Town, applicant or registered solicitor.
Any additional information submitted by any party to the appeal to
the appeals officer shall be simultaneously submitted to the opposing
party. If desired, any party shall have three business days to submit
rebuttal documentation to the appeals officer regarding the additional
information submitted by the opposing party.
D.
The appeals officer will render a decision no later than 15 calendar days from the date the appeal was taken, unless an extension of time is agreed upon by the parties. In the event that any party to the appeal submits rebuttal information as allowed in Subsection C of this section, the 15 calendar days shall be extended to include the additional three days for rebuttal.
(1)
The denial or suspension of the certificate shall be reversed by
the appeals officer if, upon review of the written appeal and information
submitted, the appeals officer finds that the licensing officer made
a material mistake of law or fact in denying or suspending the applicant
or registered solicitor's certificate.
(2)
If the written appeal and information submitted indicates that the
licensing officer properly denied or suspended the certificate of
the applicant or registered solicitor, the denial or suspension of
the certificate shall be affirmed and constitute a determination that
the suspended certificate is revoked.
(3)
The decision of the appeals officer shall be delivered to the applicant
or registered solicitor by the means designated in the completed application,
or as otherwise agreed upon when the appeal was filed.
E.
After the ruling of the appeals officer, the applicant or solicitor
is deemed to have exhausted all administrative remedies with the Town.
F.
Nothing herein shall impede or interfere with the applicant's,
solicitor's, or Town's right to seek relief in a court of
competent jurisdiction.
A.
No solicitor shall intentionally make any materially false, fraudulent,
or otherwise misleading statement in the course of soliciting.
B.
A solicitor shall immediately disclose to the consumer during face-to-face
solicitation the name of the solicitor, the name and address of the
entity with whom the solicitor is associated, and the purpose of the
solicitor's contact with the person and/or competent individual.
This requirement may be satisfied through the use of the badge and
an informational flyer.
C.
No solicitor shall use a fictitious name, an alias, or any name other
than his or her true and correct name.
D.
No solicitor shall represent directly or by implication that the
granting of a certificate of registration implies any endorsement
by the Town of the solicitor's goods or services, or of the individual
solicitor.
A.
Any occupant of a residence may give notice of a desire to refuse
solicitors by displaying a "No Solicitation" sign, which shall be
posted on or near the main entrance door or on or near the property
line adjacent to the sidewalk leading to the residence.
B.
The display of such sign or placard 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.
C.
It shall be the responsibility of the solicitor to check each residence
for the presence of any such notice.
D.
The provisions of this section shall apply also to solicitors who
are exempt from registration pursuant to the provisions of this chapter.
E.
In addition and/or alternatively, any person who owns, rents, and/or
otherwise occupies a residence and/or business in the Town who does
not wish to have anyone enter upon and/or call upon the residence
or business to solicit may inform the Town Clerk's office of
the same in writing, and the Town Clerk's office shall maintain
and make available for public inspection a list of the addresses of
those persons that do not want anyone to enter upon and/or call upon
their residence and/or place of business. A list of addresses of those
persons not wanting solicitors to enter upon and/or call upon their
residence and/or place of business shall be given to each person who
files an application for a solicitation license in the Town.
A.
Every person soliciting or advocating shall check each residence
for any "No Soliciting" sign or placard or any other notice or sign
notifying a solicitor not to solicit on the premises, such as, but
not limited to, "No Solicitation" signs. If such sign or placard is
posted, such solicitor shall desist from any efforts to solicit at
the residence or dwelling and shall immediately depart from such property.
Possession of a certificate of registration does not in any way relieve
any solicitor of this duty.
B.
It is a violation of this chapter for any person soliciting or advocating
to knock on the door, ring the doorbell, or in any other manner attempt
to attract the attention of an occupant of a residence that bears
a "No Solicitation" sign or similar sign or placard for the purpose
of engaging in or attempting to engage in advocating, a home solicitation
sale, door-to-door soliciting, or soliciting.
C.
It is a violation of this chapter for any solicitor through ruse,
deception, or fraudulent concealment of a purpose to solicit to take
action calculated to secure an audience with an occupant at a residence.
D.
Any solicitor who is at any time asked by an occupant of a residence
or dwelling to leave shall immediately and peacefully depart.
E.
The solicitor shall not intentionally or recklessly make any physical
contact with or touch another person without the person's consent.
F.
The solicitor shall not follow a person into a residence without
their explicit consent.
G.
The solicitor shall not continue repeated soliciting after a person
and/or competent individual has communicated clearly and unequivocally
their lack of interest in the subject, goods or services of the solicitor.
H.
The solicitor shall not use obscene language or gestures.
It shall be unlawful for any person, whether licensed or not,
to solicit at a residence before 9:00 a.m. or after 6:00 p.m., unless
the solicitor has express, prior written permission from the resident
to do so.
In any home solicitation sale, unless the buyer requests the
solicitor, in writing, to provide goods or services without delay,
the seller or solicitor shall present to the buyer and obtain buyer's
signature to a written statement which informs the buyer of the right
to cancel within the 10th business day after signing an agreement
to purchase. Such notice of "buyer's right to cancel" shall be
in the form required by the Town.
Any person who violates any term or provision of this chapter
shall be guilty of a misdemeanor, and shall be punished by a fine
of not to exceed $1,000 and/or a jail sentence of not to exceed six
months.
A.
The Police Department of the Town of Blooming Grove, and/or the enforcement
official as may be designated, is 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 or by his attorney at law,
make, sign and file a complaint directly with the Police Department,
or with the Town Clerk, who shall forward the complaint to the Police
Department for investigation.
A.
Nothing in this chapter shall be construed to preempt any provision
of state or federal law.
B.
Should any courts of this state declare any provision of this chapter
unconstitutional, unauthorized, or in conflict with any other section
or provision of this chapter, then such determination shall affect
only that specific section or provision so declared to be unconstitutional
or unauthorized and shall not affect any other section or part of
this chapter.
This local law shall take effect immediately when it is filed
in the office of the New York State Secretary of State, in accordance
with § 27 of the Municipal Home Rule Law.
