[HISTORY: Adopted by the City Council of the City of Batavia 1-26-1981 as Ch. 17 of the 1981 Code. Amendments noted where applicable.]
Transient vendors — See Ch. 170.
As used in this chapter, the following terms shall have the meanings indicated:
- ESTABLISHED PLACE OF BUSINESS
- A building or store in which or where the person transacts business and deals in the goods, wares and merchandise he or she hawks, peddles or solicits for during regular business hours on a daily basis.
- HAWKER AND PEDDLER
- Except as hereinafter expressly provided, any person, either principal or agent, who from any public street or public place or by going from house to house or place of business to place of business, on foot or on or from any vehicle, sells or barters, offers for sale or barters, or carries or exposes for sale or barter any goods, wares or merchandise, books, magazines, periodicals or any other item or items of value, except milk, newspapers and food distributed on regular customer routes.
- Any person who goes from place to place or house to house or by telephone or stands in any street or public place taking or offering to take orders for goods, wares or merchandise, books, magazines, periodicals or any other item or items of value (except newspapers or milk), or for services to be performed in the future, or for making, manufacturing or repairing any article or thing whatsoever for future delivery. The term "solicitor" shall, however, also mean and include any person taking or offering to take orders for goods, wares or merchandise, books, magazines, periodicals or any other item or items of value (except newspapers or milk), or for services to be performed in the future or for making, manufacturing or repairing any article or thing whatsoever for future delivery at the home or residence of any person who has been solicited prior thereto by telephone, or has responded to any type of advertising media requiring an appointment or consultation or sales presentation in the home or place of residence of such person.
Generally. Nothing in this chapter shall be held to apply to:
Any sales conducted pursuant to statute or by order of any court.
Any person selling personal property at wholesale to dealers in such articles.
Persons under the age of 18 years.
Farmers and truck gardeners, who themselves or through their employees vend, sell or dispose of products of their own farms and gardens.
Any honorably discharged member of the Armed Forces who has procured a license issued by the Genesee County Clerk as provided in the General Business Law.
Berry pickers who sell berries of their own picking.
Exempt organizations. Nonprofit organizations and persons working for such organizations shall also be exempt. However, such organizations shall register annually with the Clerk-Treasurer in the event that they plan to engage in vending, hawking, peddling or soliciting, and shall indicate the type of activities to be undertaken and the time when they will be performed. It shall be the responsibility of such organizations to furnish identification for their representatives which must be exhibited upon demand.
Interstate commerce. This chapter also shall not apply so as unlawfully to interfere with interstate commerce, and to that end all persons claiming to be engaged in interstate commerce or claiming any of the exemptions hereinabove set forth shall apply to the Clerk-Treasurer for a certificate of compliance, using the form of application described in § 134-4A; the applicant shall also submit to the Clerk-Treasurer satisfactory evidence that he or she is engaged in interstate commerce.
Certificate of exemption. When the applicant shall have established to the satisfaction of the Clerk-Treasurer that he or she is engaged in interstate commerce, or is entitled to one or more of the above exemptions, the Clerk-Treasurer shall issue to him or her, without charge, a certificate of exemption, stating among other things, that such person has complied with the requirements of this section and has satisfactorily established that he or she is engaged in interstate commerce or entitled to an exemption under Subsection A. Such certificate shall be carried with the person exercising it and shall be exhibited upon demand. Each such certificate shall be invalid after one year from its date of issue. The securing of any such certificate by fraud or misrepresentation by any person not in fact engaged in interstate commerce or entitled to one or more exemptions shall constitute a violation of this chapter.
For the purposes of this section the identification issued by a nonprofit organization shall be deemed to be a certificate of exemption required by this section.
It shall be unlawful for any person within the limits of the City to act as a hawker, peddler or solicitor as herein defined or assist same without first having obtained and paid for and having in force and effect a license therefor.
Any person desiring to procure a license as herein provided shall file with the Clerk-Treasurer a written application upon a form furnished by the Clerk-Treasurer and shall file at the same time satisfactory proof of good character. Such application shall give:
The number and kind of vehicle to be used by the applicant in carrying on the business for which the license is desired.
The kind of goods, wares and merchandise he or she desires to sell or the kind of service he or she desires to perform.
The method of distribution.
The name, address and age of the applicant.
Whether or not the applicant has been convicted of a misdemeanor or felony, and if so, give date of conviction, nature of offense, penalty imposed and name and address of court.
The name and address of the person, firm or corporation he or she represents.
The length of time the applicant desires the license.
Such other information as may be required by the Clerk-Treasurer to substantiate the above items.
If applicable, such application shall be accompanied by a certificate from the Director of Weights and Measures certifying that all weighing and measuring devices to be used by the applicant have been examined and approved.
An application for a license as a solicitor who demands, accepts or receives payment or deposit of money in advance of final delivery shall also be accompanied by a cash deposit of $1,000 or a surety company bond of $1,000 or other bond secured by sufficient collateral, said bond to be approved by the City Attorney as to form and surety conditioned for making a final delivery of the goods, wares or merchandise ordered, or services to be performed in accordance with the terms of such order or failing therein, that the advance payment on such order be refunded. Any person aggrieved by the action of any licensed solicitor shall have the right by action on the bond for the recovery of money or damages, or both. Such bond shall remain in full force and effect, and in case of a cash deposit, such deposit shall be retained by the City for a period of 90 days after the expiration of any such license, unless sooner released by the Council.
Upon the filing of the application, bond and certificate as provided in the preceding section and payment of the required fee, the Clerk-Treasurer shall, upon his or her approval of such application, issue to the applicant a license as provided in § 134-3. A license may be refused if the applicant shall have been convicted of a misdemeanor or felony, which in the judgment of the Clerk-Treasurer renders the applicant unfit or undesirable to carry on the trade or occupation for which the license is sought. The Clerk-Treasurer may also refuse a license to any person who in his or her judgment shall be an undesirable person or incapable of properly conducting the trade or business for which a license is sought and in case of refusal shall state the specific reason.
A license shall not be assignable. Any holder of any license who permits it to be used by any other person, and any person who uses such license granted to any other person shall each be guilty of a violation.
Whenever a license shall be lost or destroyed on the part of the holder or his or her agent or employee, a duplicate in lieu thereof, under the original application and bond may be issued by the Clerk-Treasurer upon the filing with him or her by the licensee of an affidavit setting forth the circumstances of the loss, and what, if any, search has been made for its recovery.
All licenses shall be issued from a properly bound book with proper reference stubs kept for that purpose, numbered in that order in which they are issued, and shall state clearly the kind of vehicle to be used, the kind of goods, wares and merchandise to be sold or service to be rendered, the number of his or her license, the date of issuance and expiration of the license, fee paid and the name and address of the licensee.
Licenses shall automatically expire on January 1 following the date of issuance, but may specifically state and provide for an earlier expiration date. Such license shall include the right to use only one vehicle in carrying on the business for which the person is licensed.
No license shall be granted to a person under 18 years of age.
No applicant to whom a license has been refused or who has a license which has been revoked shall make further application until a period of at least six months shall have elapsed since the last previous rejection or revocation, unless he or she can show that the reason for such rejection no longer exists.
Every licensee, while exercising his or her license, shall carry the license with him or her and shall exhibit the same upon demand.
[Amended 6-25-2001 by L.L. No. 1-2001]
The license fee shall be as set from time to time by resolution of the City Council and shall be issued to individuals only. If the licensee hires or employs or in any way uses other persons to work for him or her such persons shall also be licensed in accordance with the provisions of this chapter and the license fee for such persons shall be as set from time to time by resolution of the City Council.
It shall be unlawful for any person to enter upon private property for the purpose of peddling or soliciting before the hour of 9:00 a.m. of any day or after the hour of 7:00 p.m. of any day except upon the invitation of the householder or occupant.
It shall be unlawful for any peddler or solicitor in plying his or her trade to ring the bell or knock upon or enter any building whereon there is painted or otherwise affixed or displayed to public view any sign containing any or all of the following words: "No Peddlers," "No Solicitors," "No Agents" or other wording, the purpose of which purports to prohibit peddling or soliciting on the premises.
No peddler or solicitor shall peddle, vend or sell his or her goods or wares within 200 feet of any place occupied exclusively as a public or private school or for school purposes, nor shall he or she permit his or her cart, wagon or vehicle to stand on any public highway within said distance of such school property.
No peddler or solicitor shall falsely or fraudulently misrepresent the quantity, character or quality of any article offered for sale. No person shall by any trick or device or by any false representation obtain or attempt to obtain admission to the house or garage of any person or corporation in the City.
No peddler or solicitor shall blow a horn, ring a bell or use any other noisy device to attract public attention to his or her wares, or shout or cry out his or her wares in a manner which disturbs the public peace.
It shall be unlawful to create or maintain any booth or stand or place any barrels, boxes, crates or other obstructions upon any street or public place for the purpose of selling or exposing for sale any goods, wares or merchandise.
Entering upon private property without prior permission.
Notwithstanding any other provision in this chapter, no person shall enter upon any private residential property in the City of Batavia for the purpose of vending, peddling or soliciting an order for any merchandise, device, work, services, book, periodical or printed matter whatsoever; nor for the purpose of soliciting an order for any merchandise, device, work, services, book, periodical or printed matter whatsoever; nor for the purpose of soliciting alms or a subscription or a contribution to any church, charitable or public institution; nor for the purpose of distributing any handbill, pamphlet, tract, notice or advertising matter; nor for the purpose of selling or distributing any ticket or chance whatsoever without the consent of the occupant of said premises.
Exception. This subsection shall not apply to any group soliciting funds the beneficiaries of which are primarily minors, any duly organized volunteer firemen's association, nor to any church or other nonprofit organization soliciting among its own members. This subsection shall not be deemed to prohibit or restrict churches or nonprofit organizations from making calls when they are not soliciting funds or contributions, directly or indirectly.
Any contract or sale made in violation of Subsection D or G shall be null and void and of no effect as to the person solicited, and any merchandise delivered shall be forfeited and any sums paid by the person so solicited shall become immediately due and payable jointly and severally by the peddler or solicitor and his or her principal.
All orders taken by licensed solicitors who demand, accept or receive payment or deposit of money in advance of final delivery shall be in writing made in duplicate, stating the terms thereof and the amount paid in advance, and one copy shall be given to the purchaser at the time the deposit is paid to the solicitor.
It shall be the duty of the Clerk-Treasurer to keep a record of all applications and of all licenses granted under the provisions of this chapter giving the number and date of each license, the fee paid and the date of revocation of all licenses revoked.
All fees, collections and fines collected by the Clerk-Treasurer shall be deposited to the credit of the general fund and collections and deposits so reported to the Director of Finance.
A violation of any provision of this chapter is hereby declared to be a violation and shall be punishable by a fine not exceeding $250 or imprisonment of not more than 15 days, or both.
[Added 2-11-2013 by L.L. No. 1-2013]
The City Clerk may, at any time, for a violation of this chapter or any other ordinance or any law, revoke a license. When a license shall be revoked, no refund of any unearned portion of the license fees shall be made. Notice of such revocation and the reason or reasons therefor in writing shall be served by the City Clerk upon the person named in the application or by mailing the same to the address given in the application.