For the purposes of this chapter, the following definitions
shall apply:
APPEALS OFFICER
The Village Board of Trustees shall be 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 18 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.
BUREAU OF CRIMINAL IDENTIFICATION (BCI)
An original or copy, dated no older than 180 days prior to
the date of the application, of either:
A.
A New York State Bureau of Criminal Identification verified
criminal history report personal to the applicant; or
B.
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.
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 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 or eleemosynary, 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.
B.
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.
C.
"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.
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:
(1)
Felony homicide or assault;
(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:
(1)
Felony homicide or assault;
(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 any 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
the applicant or registered solicitor had either engaged in fraud
or intentional misrepresentation;
G.
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);
H.
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;
I.
The applicant or registered solicitor has an outstanding arrest
warrant from any jurisdiction; or
J.
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.
ENTITY
Includes a corporation, partnership, limited liability company,
or other lawful entity, organization, society or association.
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 legible sign that states "No Soliciting," "No Solicitors,"
"No Salespersons," or "No Trespassing," or words of similar import
visible as one approaches the front door of a residence.
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 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.
RESPONSIBLE PERSON OR ENTITY
That person or entity associated with an applicant or solicitor,
or on whose behalf or benefit the applicant or solicitor is acting,
that is responsible to provide the following to an applicant or 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, 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;
or
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 regarding a particular good(s) or service(s),
including those that entitles the consumer to rescind the same within
three days under any applicable federal, state, or local law.
SOLICITING, 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
for the purpose of:
(1)
Promoting or facilitating a real property sale or purchase;
or
(2)
The receipt of information regarding real property sale or purchase.
F.
Other activities falling within the commonly accepted definition
of soliciting, such as canvassing, hawking, or peddling.
SOLICITOR or SOLICITORS
A person(s) engaged in solicitation, including a registered
solicitor. For purposes of this chapter, the following terms shall
be considered synonymous with solicitor: "hawker," "peddler." "itinerant
merchant," "transient vendor," "surveyor" and "door-to-door salesman."
SUBSTANTIATED REPORT
An oral, written, or electronic report:
A.
That is submitted to and documented by the Village;
B.
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.
C.
That provides any of the following information regarding a solicitor:
(1)
Documented verification of a previously undisclosed disqualifying
status of a solicitor;
(2)
Probable cause that the solicitor has committed a disqualifying
status which has not yet been determined to be a disqualifying status;
(3)
Documented, eyewitness accounts that the solicitor has engaged
in repeated patterns of behavior that demonstrates failure by the
solicitor to adhere to the requirements of this chapter; or
(4)
Reasonable cause that continued licensing of a registered solicitor
creates exigent circumstances that threaten the peace, health, safety,
or general welfare of any individuals or entities within the Village.
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 applicant's notarized
signature.
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;
B. The applicant consents to the Village, including its police department,
consulting any available sources for information on the applicant,
including but not limited to databases for any outstanding warrants,
protective orders, or civil judgments;
C. The fee that must be submitted by applicant with a completed application;
D. To the extent permitted by New York State and/or federal law, the
applicant's BCI background check shall remain a confidential,
protected, private record not available for public inspection;
E. 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;
F. The Village will maintain the information and criteria for disqualifying
status, denial, or suspension of a certificate under the provisions
of this chapter, the public disclosure for which will be subject to
New York State Freedom of Information Law;
G. That a request for a temporary certificate will be granted or denied
within five days of a completed application being submitted.
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 be issued 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 Village 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 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 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:
(a)
Will be issued an annual certificate, eligible for renewal one
year from the date of issuance of the temporary certificate; or
(b)
Will not be issued an annual certificate for reasons cited in §
88-10.
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 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 §
88-10 or a disqualifying status is present.
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 solicitation sales with different goods or
services; 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 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 of Trustees. 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 Village Clerk with
a copy to the license officer within 10 business days of the date
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 two
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 Village Board of Trustees 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 Village, applicant
or registered solicitor. Any additional information submitted by any
party to the appeal to the Village Board of Trustees 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 Village Board of Trustees will render a decision no later than 30 calendar days from the date all of the information noted in Subsections
A,
B and
C is received.
(1) The denial or suspension of the certificate shall be reversed by
the Village Board of Trustees if, upon review of the written appeal
and information submitted, the Village Board of Trustees 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
any 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 Village Board of Trustees, the applicant
or solicitor is deemed to have exhausted all administrative remedies
with the Village and if aggrieved may appeal to the New York State
Supreme Court by means of a special proceeding pursuant to Article
78 of New York Civil Practice Laws and Rules (CPLR) within 30 days
of the Village Board's ruling.
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 and
specifically waives the buyer's right to cancel, 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 Village.
Any fee called for by this chapter shall be established by resolution
of the Village Board.
Any person found guilty of violating any term or provision of
this chapter shall be guilty of a misdemeanor and shall be punished
by a fine not to exceed $250 for the first offense, $500 for the second
offense within 18 months and $1,000 and/or a jail sentence of not
to exceed six months for the third offense within 18 months.