This article is and shall be deemed an exercise of the police power of the state and of the city, for the public safety, comfort, convenience and protection of the city and citizens of the city, and all of the provisions of this article shall be construed for the accomplishment of that purpose. The provisions of this article shall be enforced by the city police department and city code enforcement officer.
(Ordinance 2017-21, sec. 30-1, adopted 12/11/17)
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Charitable purpose
means a philanthropic, religious or other nonprofit objective including the benefit of poor, needy, sick, refugee or handicapped persons; the benefit of any church or religious society, sect, group or order; the benefit of a patriotic or veterans’ association or organization; the benefit of any fraternal, social or civil organization; or the benefit of any education institution. “Charitable purpose” shall not be construed to include the direct benefit of any political group or political organization which is subject to financial disclosure under state or federal law.
Commercial
means engaged in commerce. Designed for profit and supported by advertisement.
Commercial traveler
means a person who is employed by or who represents a manufacturer, wholesaler or importer who sells or exhibits goods or services to parties who engage in the business of purchasing such goods for the purpose of resale to the general public.
Consumer
means an individual who acquires real or personal property, services, money or credit for personal, family or household purposes.
Goods or merchandise
means any personal property of any nature whatsoever, except printed material.
Home solicitation transaction
means a transaction or the purchase of goods or services, payable in installments or cash, in which the home solicitor engages in a personal solicitation of a sale to a person at a residence. A home solicitation transaction shall not include a sale made pursuant to a preexisting retail charge agreement or a sale made pursuant to prior negotiations between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale or a sale of realty, in which transaction the purchaser is represented by a licensed attorney or in which the transaction is being negotiated by a licensed real estate broker.
Home solicitor
means a person who goes from house to house or from place to place soliciting, selling or taking orders for or offering to sell or take orders for any goods, merchandise or services.
Itinerant merchant or vendor
means a person, as well as their agents and employees, who sets up and operates a temporary business within the premises of another business or any other building, enclosure, vacant lot, vehicle or location in the city, soliciting, exhibiting, selling or taking orders for or offering to sell or take orders for any goods or services. The term shall not include or be construed to include anyone engaged in interstate commerce or anyone upon whom the provisions of this article would impose a direct and unlawful burden on interstate commerce. This term shall also not include those persons operating vehicles otherwise permitted by this code, including taxicabs or tow truck services.
Merchant
means a party to a consumer transaction other than a consumer.
Nonprofit organization
means any organization that does not seek to make a profit and that is not a public body. This definition includes, but is not limited to, entities such as the Multiple Sclerosis Association of America, the American Heart Association, the Muscular Dystrophy Association, the American Cancer Society, the city’s public safety departments, the Boy Scouts of America, the Girl Scouts of the United States of America, etc.
Person
means an individual natural person. The term does not include any corporation, firm, association, partnership or joint venture.
Religious organization
means any organization that is dedicated to the support of a church, religious society, or any other religious sect, group or order.
Residence
means any separate living unit occupied for residential purposes by one (1) or more persons, contained within any type of building or structure.
Soliciting, solicit or solicitation
means selling or attempting to sell goods or services or to take or attempt to take orders for services or goods to be performed or furnished in the future.
Solicitor, peddler, itinerant merchant or itinerant vendor
means any person engaged in any activity mentioned in section 4.04.031.
Temporary
means any such business transacted or conducted in the city for which definite arrangements have not been made for the hire, rental or lease of premises for at least one (1) month in or upon which such business is to be operated or conducted.
Transient vendor
means a person who within the city engages in the temporary business of exhibiting, delivering, selling or offering for sale any goods or services or exhibiting brochures, sales literature or price lists for the purpose of taking orders for the sale of goods and who has no fixed place of business within the city or county that is used, occupied, hired, rented or leased for a period of at least one month for the purpose of operating or conducting such business thereon.
(Ordinance 2017-21, sec. 30-2, adopted 12/11/17; Ordinance adopting 2018 Code)
(a) 
It shall be unlawful for a person to go upon any residential or commercial premises and ring the doorbell or rap or knock upon the door or create any sound in a manner calculated to attract the attention of the occupant of the residence or business for the purpose of engaging in or attempting to engage in a solicitation transaction:
(1) 
Before 9:00 a.m. or after 6:00 p.m. of any day, Monday through Saturday; or
(2) 
At any time on a Sunday, New Year’s Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day or Christmas Day.
(b) 
This section shall not apply to a visit to the premises as a result of a request or an appointment made by the occupant of the residence or business.
(Ordinance 2017-21, sec. 30-3, adopted 12/11/17)
(a) 
No person shall have or maintain in a stationary location, any truck, trailer, booth or any other kind of structure (mobile food establishments are exempt with a properly obtained permit) on any public street or alley in the city for the purpose of selling, exhibiting or soliciting orders for any goods, wares or merchandise, or cold drinks, hot drinks, or food, or for the purpose of exhibiting any kind of exhibit.
(b) 
It shall be unlawful for any person to sell or offer for sale any goods or services on the sidewalks of the city (mobile food establishments are exempt with a properly obtained permit) unless such goods or services are offered for sale or sold by a person owning, occupying or controlling the premises adjoining or adjacent to the sidewalk, and then such goods shall be exposed and sold in the usual course of trade in accordance with all ordinances of the city.
(Ordinance 2017-21, sec. 30-4, adopted 12/11/17)
It shall be unlawful for any person to stop, stand or park any motor vehicle, truck, trailer or vehicle of any kind (mobile food establishments are exempt with a properly obtained permit) on any public street or alley in the city for the purpose of selling, exhibiting or soliciting orders for any goods or services, wares, merchandise, cold drinks, hot drinks or food, for a period of longer than ten minutes.
(Ordinance 2017-21, sec. 30-5, adopted 12/11/17)
(a) 
It shall be unlawful for the holder of any license issued under this article to enter upon the land or premises of another after receiving, immediately before such entry, notice from the owner, resident, occupant or adult person acting for such person exercising possession that such entry is forbidden.
(b) 
A sign on the premises stating approximately “No Solicitors Commercial or Charitable” or “No Solicitors Except for Non-Profit Organizations based in Wharton County, Texas” shall constitute notice.
(c) 
It shall be unlawful for any such license holder to remain on the premises of another after receiving notice from the owner, resident, occupant or adult person acting for such person exercising possession, to depart such premises.
(d) 
A conviction for violation of this section shall result in the automatic revocation of such convicted person’s peddler’s and solicitors’ permit and/or a fine as established in the city’s schedule of municipal court fines.
(Ordinance 2017-21, sec. 30-6, adopted 12/11/17)
Any person required to obtain a permit under the provisions of this article who for the purposes of selling, offering for sale or soliciting orders for the sale of goods, hires, rents, leases, or occupies any room or space in any building, structure, enclosure, vacant lot, parking lot or any other property of whatever kind or character shall display, at all times during which such person is doing business on such premises, a sign lettered in two-inch letters and visible to the public setting out the place where any purchaser can obtain service for the goods offered for sale on such premises and specifying the type and duration of any warranties made on such goods and the address and telephone number where any purchaser may make a claim for breach thereof.
(Ordinance 2017-21, sec. 30-7, adopted 12/11/17)
It shall be unlawful for any person to go from house to house or from place to place in the city soliciting, selling or taking orders for or offering to sell or take orders for any goods, wares, merchandise, services, photographs, newspapers, magazines or subscriptions to newspapers or magazines without having first registered with the planning department at city hall. It shall also be unlawful to sell or solicit in the city, as stated in this section, without carrying the issued permit card. This division shall not apply to the following:
(1) 
A canvasser, otherwise exempt from the provisions of this division, may request an identification badge from the city;
(2) 
Sales or exhibits at fairs, rodeos, conventions or events sponsored by one or more city civic organizations, schools, churches or the Chamber of Commerce;
(3) 
Charitable solicitations; or
(4) 
Any person who was requested or invited by the owner or occupant of a private residence, business or other property, for the purpose of soliciting, selling or taking orders for or offering to sell or take orders for any goods, wares, merchandise, services, photographs, newspapers, magazines or subscriptions to magazines or newspapers.
(Ordinance 2017-21, sec. 30-33, adopted 12/11/17)
Any property owner who knowingly allows his property to be used or occupied by a peddler, transient merchant or itinerant vendor who conducts thereon a business operation or who exhibits or offers for sale goods without first obtaining a permit as required by the provisions of this division shall be guilty of a misdemeanor.
(Ordinance 2017-21, sec. 30-34, adopted 12/11/17)
(a) 
An application for a permit required by this division shall be made in person by the persons requesting such permit upon forms available from the planning department or the city website. Such application form shall provide a space for the following information which must be furnished by the applicant:
(1) 
The name, current address (and former address, if current is less than 5 years) and current telephone number of the applicant.
(2) 
The social security number and birth date of the applicant.
(3) 
A physical description of the applicant which includes race, sex, height, weight, and hair and eye color.
(4) 
Two recent photograph likenesses of the applicant’s face, which photographs shall not be less than one inch square or larger than two inches square in size. One photograph shall be kept with the application and one photograph shall be attached to the permit.
(5) 
A valid state driver’s license number with a copy attached. Only non-drivers may submit other positive identification issued to the applicant by a governmental agency (i.e., identification card or passport).
(6) 
Every application must be submitted with a background check of each applicant’s criminal history. Those applicants that have possessed a valid Texas driver’s [license] or identification card for the last 5 years may submit a state department of public safety certified criminal history report, not more than 45 days old. The applicants that have not maintained a valid Texas driver’s license or identification card or are presenting valid identification from another state or a valid passport must submit a National Instant Criminal Background Check System (NICS) report, not more than 45 days old. The cost associated with either background check is the sole responsibility of the applicant.
(7) 
The kinds of goods (brand name if applicable) offered for sale and whether such applicant, upon such sale or order, shall demand, accept or receive payment or deposit of money in advance of final delivery.
(8) 
If the goods are to be shipped, the name, address and telephone number of the manufacturing location and/or shipping location.
(9) 
The address of the location from which such goods or services shall be displayed to the public or offered for sale or a statement that the applicant will travel from door to door for the purpose of exhibiting or offering goods for sale.
(10) 
The name, address and telephone number of the owner of the property at such location.
(11) 
The license plate number, make, model and year of any vehicles, with proof of liability insurance (as required by state law) for any vehicle used by the applicant or used to transport the applicant.
(12) 
Statement that the applicant has not ever been convicted of an offense:
(A) 
Involving narcotics, dangerous drugs or crimes with dangerous weapons;
(B) 
Involving the use of force and violence upon the person of another when the offense is designated as a felony in the state of conviction or this state;
(C) 
Of fraud, misrepresentation, embezzlement, forgery or theft when such offense is designated as a felony in the state of conviction or this state; or
(D) 
In a court of proper jurisdiction of violating this article at any time.
(13) 
Such other information as may be required to complete an investigation as to the fitness of the applicant to conduct such business operation.
(b) 
Each person making application for a permit required pursuant to this division shall swear or affirm that the information given on the application form is true and correct.
(c) 
If state law requires that sales tax must be paid upon the purchase of such goods or services as the applicant proposes to offer for sale, the application for permit shall be accompanied by a valid sales tax permit issued by the office of the comptroller of public accounts of the state.
(d) 
Each applicant who proposes to sell or offer for sale goods consisting of any raw, cooked or processed edible substance, ice, beverage or ingredient used or intended for use or for sale in whole or in part for human consumption shall secure on the application form for permit/license under this division the signature of the public health officer of the city and/or county indicating that such goods meet minimum food standards of the city and state.
(e) 
Each application for a permit shall be approved by the chief of police or his authorized representative, before such permit is granted. The chief of police shall have a reasonable time to conduct an investigation of an applicant for such permit, but such an investigation shall not be longer than three business days. After inspection or investigation the chief of police shall either approve or disapprove the application for permit and if disapproved shall give the applicant, upon request, a written statement setting forth the reasons for such disapproval and notifying the applicant of his right to appeal.
(Ordinance 2017-21, sec. 30-35, adopted 12/11/17)
The chief of police, code enforcement officer or designated representative may deny or revoke a permit for a peddler, itinerant merchant or transient vendor for any of the following reasons:
(1) 
The applicant does not present a valid state driver’s license or, if allowed, other positive identification by a governmental agency;
(2) 
The applicant does not complete the application form and procedure;
(3) 
The applicant or the proposed activity of the applicant does not comply with applicable city ordinances and codes, including building codes and health codes, or county or state health laws;
(4) 
The applicant makes false or fraudulent statements on the application form;
(5) 
The applicant or licensee is found after investigation by the chief of police to be misrepresenting or making false statements in regard to his authority to sell such goods;
(6) 
If the applicant or licensee has been convicted of an offense involving narcotics, dangerous drugs or crimes with dangerous weapons;
(7) 
If the applicant or licensee has been convicted of an offense involving the use of force and violence upon the person of another when the offense is designated as a felony in the state of conviction or this state;
(8) 
If the applicant or licensee has been convicted of an offense of fraud, misrepresentation, embezzlement, forgery or theft when such offense is designated a felony in the state of conviction or this state;
(9) 
If the applicant or licensee has been convicted in a court of proper jurisdiction of violating this article at any time; or
(10) 
Upon recommendation from the chief of police that the license be revoked because the conduct of the licensee or the manner in which the licensee is conducting his business operation endangers the health or safety of a citizen of the city or a visitor within the city.
(Ordinance 2017-21, sec. 30-36, adopted 12/11/17)
The application for registration as a peddler, solicitor or itinerant merchant shall be accompanied by a bond in the penal sum of no less than $5,000.00, signed by the applicant as principal and signed, as surety, by some surety company authorized to do business in the state, conditioned for the final delivery of goods, wares, merchandise, services, photographs, magazines and newspapers in accordance with the terms of any order obtained prior to delivery and also conditioned to indemnify all purchasers or customers for all defects in material or workmanship that may exist in the article sold by the principal of the bond, at the time of delivery, and that may be discovered by such purchaser or customer within thirty (30) days after delivery. The bond shall be for the use and benefit of all persons who may make any purchase or give any order to the principal on the bond or to an agent or employee of the principal. If the applicant is engaging in any such activity through one or more agents or employees, such persons shall be required to enter into only one bond, in the sum required in this section, which bond shall be made to cover the activities of all such agents or employees.
(Ordinance 2017-21, sec. 30-37, adopted 12/11/17)
(a) 
Application/registration fee.
The application, completed in its entirety with surety bond and background check attached, is to be submitted with applicable application/registration fees as established in the fee schedule in appendix A of this code, to the planning department for approval.
(b) 
Permit fees.
In addition to the above application/registration fees each applicant for solicitor, peddler, itinerant merchant or itinerant vendor shall pay the permit fees established in the fee schedule in appendix A of this code. All permit fees will be paid either before or at the issuance of registration card(s).
(c) 
Term; use of registration card; disposition of fees.
Registration will be valid for one year from the date of issuance. The registration card shall be issued to the individual agent or employee and shall not be used by any other agent or employee. The fees provided for in this section shall be used for the purpose of defraying expenses incident to the registering of such vendors and merchants and the administration of this article.
(Ordinance 2017-21, sec. 30-38, adopted 12/11/17)
The registration required in this division shall not apply to:
(1) 
Sales made to dealers by commercial travelers or sales agents in the usual course of business or sales made under authority and by order of law;
(2) 
Sales or exhibits at fairs, conventions or events sponsored by one or more city civic organizations, schools, churches or the Chamber of Commerce;
(3) 
Charitable solicitations; or
(4) 
Insurance or alarm companies carrying a current Texas state license.
(Ordinance 2017-21, sec. 30-39, adopted 12/11/17)