For purposes of this chapter, the following definitions shall
apply:
ADVOCATING
Speech or conduct intended to inform, promote, or support
a political position or charitable activities.
APPEALS OFFICER
The Village Board or designee of the Village responsible
for receiving the information from the Village and appellant regarding
the denial or suspension of a certificate and issuing a decision as
required by this chapter.
APPELLANT
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.
APPLICANT
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.
BCI
An original or certified 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.
BUSINESS
A commercial enterprise licensed by the Village as a person
or entity under this title, having a fixed or temporary physical location
within the Village.
CERTIFICATE
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.
CHARITABLE ACTIVITIES
Advocating by persons or entities that either are, or support,
a charitable organization.
CHARITABLE ORGANIZATION
Includes any person, joint venture, partnership, limited
liability company, corporation, association, group, or other entity:
A.
That is:
(1)
A benevolent, educational, voluntary health, philanthropic,
humane, patriotic, religious, charitable, social welfare or advocacy,
public health, environmental or conservation, or civic organization;
(2)
For the benefit of a public safety, law enforcement, or firefighter
fraternal association; or
(3)
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.
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 State of New York.
COMPETENT INDIVIDUAL
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.
COMPLETED APPLICATION
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.
CRIMINALLY CONVICTED
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.
DISQUALIFYING STATUS
Anything specifically defined in this chapter as requiring
the denial or suspension of a certificate, and any of the following:
A.
The applicant or registered solicitor has been criminally convicted
of:
(2)
Physically abusing, sexually abusing, or exploiting a minor;
(3)
The sale or distribution of controlled substances; or
(4)
Sexual assault of any kind.
B.
Criminal charges currently pending against the applicant or
registered solicitor for:
(2)
Physically abusing, sexually abusing, or exploiting a minor;
(3)
The sale or distribution of controlled substances; or
(4)
Sexual assault of any kind.
C.
The applicant or registered solicitor has been criminally convicted
of a felony within the last 10 years;
D.
The applicant or registered solicitor has been incarcerated
in a federal or state prison within the past five years;
E.
The applicant or registered solicitor has been criminally convicted
of a misdemeanor within the past five years involving a crime of:
(2)
Violent or aggravated conduct involving persons or property.
F.
A final civil judgment has been entered against the applicant
or registered solicitor within the last five years, indicating that:
(1)
The applicant or registered solicitor had either engaged in
fraud or intentional misrepresentation; or
(2)
That a debt of the applicant or registered solicitor was nondischargeable
in bankruptcy pursuant to 11 U.S.C. § 523(a)(2), (a)(4),
(a)(6) or (a)(19).
G.
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;
H.
The applicant or registered solicitor has an outstanding arrest
warrant from any jurisdiction; or
I.
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.
DOOR-TO-DOOR SOLICITATION
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.
ENTITY
Includes a corporation, partnership, limited liability company,
or other lawful entity, organization, society or association.
FEES
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.
GOODS
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 or premises by means of door-to-door solicitation,
regardless of:
A.
The means of payment or consideration used for the purchase;
B.
The time of delivery of the goods or services; or
C.
The previous or present classification of the solicitor as a
solicitor, peddler, hawker, itinerant merchant, or similar designation.
LICENSING OFFICER
The Village 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.
NO SOLICITATION SIGN
A reasonably visible and legible sign that states "No Soliciting,"
"No Solicitors," "No Salespersons," or "No Trespassing," or words
of similar import.
POLITICAL POSITION
Any actually held belief or information for, against, or
in conjunction with any political, social, environmental, or humanitarian
belief or practice.
REGISTRATION
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.
RESIDENCE
Any living unit contained within any building or structure
that is located within the Village and 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.
RESPONSIBLE PERSON OR ENTITY
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:
A.
Maintaining a state sales tax number; maintaining 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;
B.
Facilitating and responding to requests from consumers who desire
to cancel the sale pursuant to applicable contractual rights or law;
and
C.
Refunding any monies paid or reversing credit card charges to
those persons who timely rescind any sale pursuant to applicable contractual
rights or law.
SALE OF GOODS OR SERVICES
The conduct and agreement of a solicitor and the competent
individual in a residence or premises regarding any 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.
SERVICES
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 an individual in conversation at a residence
or premises 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.
SUBMITTED IN WRITING
The information for an appeal of a denial or suspension of
a certificate, submitted in a written statement to the Village offices
by certified, registered, priority, overnight or delivery confirmation
mail, facsimile, or hand delivery.
SUBSTANTIATED REPORT
An oral, written, or electronic report:
A.
That is submitted to and documented by the Village by any of
the following:
(1)
A competent individual who is willing to provide law enforcement
or other Village employees with publicly available identification
of their name, address, and any other reliable means of contact;
(2)
Village law enforcement or licensing officer; or
(3)
Any other regularly established law enforcement agency at any
level of government;
B.
That provides any of the following information regarding a registered
solicitor:
(1)
Documented verification of a previously undisclosed disqualifying
status of a registered solicitor;
(2)
Probable cause that the registered solicitor has committed acts
that may constitute a disqualifying status, that have not yet been
determined to be a disqualifying status;
(3)
Documented, eyewitness accounts that the registered solicitor
has engaged in repeated patterns of behavior that demonstrate failure
by the registered solicitor to adhere to the requirements of this
chapter; or
(4)
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
Village.
VILLAGE
The Village of Cornwall-on-Hudson.
WAIVER
The written form provided to the applicant by the Village
wherein the applicant agrees that the Village may obtain a name/date
of birth BCI background check on the applicant for licensing purposes
under this chapter, and which contains the 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 that
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 individuals soliciting contributions
to finance extracurricular social, athletic, artistic, scientific
and/or or cultural programs.
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 Village, 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 Village Clerk upon request.
Unless otherwise exempt under this chapter, all persons desiring
to engage in door-to-door solicitation within the Village, 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 to 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:
(a)
A valid driver's license issued by any state;
(b)
A valid passport issued by the United States;
(c)
A valid identification card issued by any state; or
(d)
A valid identification issued by a branch of the United States
military.
(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.
G. BCI background check. The applicant shall provide:
(1) An original or a certified copy of a BCI background check;
(2) A signed waiver whereby the applicant agrees to allow the Village
to obtain a name/date of birth BCI background check on the applicant
for purposes of enforcement of this chapter.
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:
(1) Has the applicant been criminally convicted of:
(b)
Physically abusing, sexually abusing, or exploiting a minor;
(c)
The sale or distribution of controlled substances; or
(d)
Sexual assault of any kind.
(2) Are any criminal charges currently pending against the applicant
for:
(b)
Physically abusing, sexually abusing, or exploiting a minor;
(c)
The sale or distribution of controlled substances; or
(d)
Sexual assault of any kind.
(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;
(5) Has the applicant been criminally convicted of a misdemeanor within
the past five years involving a crime of:
(b)
Violent or aggravated conduct involving persons or property.
(6) Has a final civil judgment been entered against the applicant within
the last five years, indicating that:
(a)
The applicant had either engaged in fraud or intentional misrepresentation;
or
(b)
A debt of the applicant was nondischargeable in bankruptcy pursuant
to 11 U.S.C. § 523(a)(2), (a)(4), (a)(6) or (a)(19).
(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 Village, 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, before a notary public, 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
Village to verify information submitted with the completed application,
including:
(2) The applicant's and/or responsible person or entity's state
tax identification and special use tax numbers, if any;
(3) The validity of the applicant's proof of identity.
B. The Village 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 the 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 Village 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 Village
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.
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. If deemed eligible, the licensing officer may issue only one certificate per applicant for a term of one week, one month or three months. The term of the certificate shall automatically expire unless renewed in accordance with §
118-11C.
B. A certificate may be issued upon satisfaction of the following conditions:
(1) The applicant's submission of a completed application;
(2) The applicant's payment of the required fee;
(3) The applicant establishes proof of identity;
(4) The applicant's representations on the application form do not
affirmatively show a disqualifying status;
(5) The BCI report does not affirmatively show a disqualifying status;
and
(6) The applicant has not previously been denied a certificate by the
Village or had a certificate revoked for grounds that still constitute
a disqualifying status under this chapter.
C. Within 10 business days of the date the applicant has submitted a
completed application, the Village 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 any action disclosed with the application form.
(2) Issue written notice to the applicant and the responsible person
or entity, if any, that the application:
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 Village.
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 Village'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 services, or with or by a responsible person or entity different
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 Village, after payment of
the fee for the identification badge.
An applicant or registered solicitor whose certificate has been
denied or suspended shall have the right to appeal to the Village
Board or its designee. Any appeal must be submitted by either the
applicant, or the responsible person or entity. The following procedures
and requirements shall apply:
A. Any appeal must be submitted in writing to the Village Clerk, 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 five
business days, the Village 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 a basis for denial, suspension or revocation, and any additional
information supplied by the Village, applicant or registered solicitor.
Any additional information submitted by any party 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 personally, or by certified mail to the address
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 Village.
F. Nothing herein shall impede or interfere with the applicant's,
solicitor's, or Village's right to seek relief in a court
of competent jurisdiction.
It shall be unlawful for any person, whether licensed or not,
to solicit at a residence or premises before 8:30 a.m. or after 9:00
p.m. Monday through Saturday, and before 10:00 a.m. or after 6:00
p.m. on Sunday unless the solicitor has express, prior written permission
from the resident to do so.
In addition to the provisions of § 427 of the New
York State Personal Property Law, in any home solicitation sale, unless
the buyer requests that solicitor in writing to provide goods or services
without delay, the seller or solicitor shall present to the buyer
and obtain the buyer's signature to a written statement which
informs the buyer of the right to cancel within 10 business days after
signing an agreement to purchase. Such notice of buyer's right
to cancel shall be in the form required by the Village and shall be
in addition to the protections set forth in § 428 of the
New York State Personal Property Law.
Any person who violates any term or provision of this chapter
shall be guilty of a violation and upon conviction shall be punished
by a minimum fine of $2,500 to a maximum fine of $5,000 in the first
offense, a minimum fine of $5,000 to a maximum fine of $7,500 for
a conviction of a second offense within two years of a prior conviction,
and a minimum fine of $7,500 to a maximum fine of $10,000 for a conviction
for a third offense within two years of a prior conviction, and/or
jail sentence of not to exceed 15 days. Each day such violation continues
shall constitute a separate district offense punishable based upon
the foregoing.