[HISTORY: Adopted by the City Council of
the City of Lackawanna 12-7-1987 as Ch. 17 of the 1987 Code. Amendments
noted where applicable.]
This chapter shall be known and may be cited
as the "Peddlers and Solicitors Ordinance of the City of Lackawanna,
New York."
As used in this chapter, the following terms
shall have the meanings indicated:
Include, except as hereinafter expressly provided, any person,
corporation, partnership or other entity, 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,
including the sale of cooked food and beverages including brewed coffee,
tea or soft drinks for human consumption as a mobile vendor.
[Amended 4-7-2008]
A commercially manufactured, self-contained, motorized food
unit in which ready-to-eat food is cooked, wrapped, packaged, processed
or portioned for service, sale or distribution.
[Added 6-3-2015]
Includes any person who goes from place to place or house
to house 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.
A.
Nothing in this chapter shall be held to apply to
any sales:
(1)
Conducted pursuant to statute or by order of any court.
(2)
To any person selling personal property at wholesale
to dealers in such articles.
(3)
To merchants or their employees for delivering orders
to customers at their residence or place of business.
(4)
To persons under the age of 18 years.
(5)
To peddling of meats, fish, fruit and farm produce
by farmers and persons who produce such commodities.
(6)
To any honorably discharged member of the armed forces
or any other person who has procured a license issued by the County
Clerk as provided by § 32 of the General Business Law of
the State of New York.
B.
Nonprofit organizations and persons working for such
organizations shall also be exempt. However, such organizations shall
register annually with the City Clerk in the event 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.
C.
Interstate commerce. This chapter shall not apply so as unlawfully to interfere with interstate commerce, and to that end all persons claiming to be engaged in interstate commerce shall apply to the City Clerk for a certificate of compliance, using the form of application described in § 168-5; the applicant shall also submit to the City Clerk satisfactory evidence that he or she is engaged in interstate commerce.
D.
Certificate of compliance. When the applicant shall
have established to the satisfaction of the City Clerk that he or
she is engaged in interstate commerce, the City Clerk shall issue
to him or her, without charge, a certificate of compliance, 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. 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 shall constitute
a violation of this chapter.
It shall be unlawful for any person within the
corporate 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.
A.
Any person desiring to procure a license as herein
provided shall file with the City Clerk a written application upon
a form furnished by the City Clerk and shall file at the same time
satisfactory proof of good character. Such application shall give:
(1)
The number and kind of vehicle to be used by the applicant
in carrying on the business for which the license is desired.
(2)
The kinds of goods, wares, merchandise, food and beverage
the person or entity desires to sell or the kind of service he or
she desires to perform.
[Amended 4-7-2008]
(3)
The method of distribution.
(4)
The name, address and age of the applicant.
(5)
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.
(6)
The name and address of the person, firm or corporation
he or she represents.
(7)
The length of time the applicant desires the license.
(8)
Such other information as may be required by the City
Clerk to substantiate the above items.
(9)
An applicant for a license to sell food or beverages
as a mobile vendor must provide a proper and valid certificate of
insurance approved by the Director of Public Safety insuring the licensee
against any and all claims for personal injury by customers and the
general public in the amount of $100,000 per person and $300,000 per
incident, valid and effective at all times the mobile vendor is in
operation in the City.
[Added 4-7-2008]
(10)
Any vehicle used by a mobile vendor to vend its goods, wares, food or beverage must be approved by the Director of Public Safety that said vehicle is safe for use in dealing with the public unless said vehicle is licensed and inspected by the State of New York Department of Motor Vehicles or in accordance with its regulations. Any and all such vehicles used in connection with this ordinance must be insured as provided by the NYS Motor Vehicle Law and, if not described therein, public liability insurance as provided for in Subsection A(9) above shall be provided.
[Added 4-7-2008]
(11)
Any mobile vehicle used to sell food and/or
beverages to the public in the City of Lackawanna must first be approved
by the Erie County Health Department and the NYS Sales Tax Division
of the Department of Taxation and Finance and may only operate at
times and locations approved by the Director of Development or his
designee.
[Added 4-7-2008; amended 6-3-2015]
B.
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.
C.
A nonrefundable fee of $100 shall be paid upon the filing of the application for a license under this chapter. Upon the approval of the application, the fee shall be applied to the license fees set forth in § 168-13.
[Added 7-17-2018]
D.
An applicant who is an honorably discharged veteran shall pay a nonrefundable
fee of $50 upon the filing of the application for a license under
this chapter.
[Added 7-17-2018]
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 $5,000
or a $5,000 surety company bond 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 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 City Council.
A.
Upon the filing of the application, bond and certificate as provided in the preceding sections, the City Clerk shall, upon his or her approval of such application, issue to the applicant a license as provided in § 168-4. Except as hereinafter provided, no license shall be refused except for a specific reason and for the protection of the public safety, health, morals or general welfare.
B.
Before issuing a license, the City Clerk shall refer
the application to the Chief of Police for investigation and report.
C.
Appeal to City Council. Any applicant who has been
refused a license by the City Clerk may apply to the City Council
therefor, and the same may be granted or refused by the City Council.
A license shall not be assignable; any holder
of such 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 of this chapter.
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 City Clerk 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.
Such licenses shall automatically expire on
December 31 following the date of issuance of such license, but such
licenses may specifically state and provide for an earlier expiration
date.
A.
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.
B.
Every licensee, while exercising his or her license,
shall carry the license with him or her and shall exhibit the same
upon demand.
[Amended 3-20-2006; 4-7-2008; 3-18-2014; 6-3-2015; 7-17-2018]
A.
The license fee for each person licensed as a hawker, peddler or
solicitor shall be $100 per year.
B.
The license fee for each person licensed to assist a hawker, peddler
or solicitor shall be $100 per year.
C.
For the purpose of this chapter, a person who assists a hawker, peddler
or solicitor shall be deemed to be any person who participates in
delivering merchandise or any other items sold, performs any services
in or about the customer's premises or otherwise generally renders
aid or assistance, except participation in selling or soliciting orders.
D.
A license fee shall not be required of any honorably discharged veteran.
E.
The license fee for each applicant for a license to sell food and
beverages, including coffee, tea and soft drinks, for human consumption
shall be $100 per year.
F.
A license fee for a temporary mobile food truck license in the amount
of $75 per event, shall be required. Mobile food trucks may only operate
at events approved by the Director of Development.
The City Clerk may, at any time, for a violation
of this chapter or any other provision of this Code or any law, suspend
or revoke any license issued hereunder as provided by law.[1] When a license shall be revoked, no refund of any unearned
portion of the license shall be made.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
No peddler or solicitor shall represent or state or
otherwise indicate that he or she is not intending to sell or otherwise
enter into a contract with any person in the household.
H.
Entering upon private residential property.
(1)
Notwithstanding any other provision in this chapter,
no person shall enter upon any private residential property in the
City of Lackawanna 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 alms
or a subscription or a contribution to any church, charitable or public
institution; nor for the purpose of distributing in person any handbill,
pamphlet, tract, notice or advertising material; nor for the purpose
of selling or distributing any ticket or chance whatsoever without
the consent of the occupant of said premises previously given.
(2)
Exception. This subsection shall not apply to organizations,
the principal beneficiaries of which are minors, volunteer fire departments,
and the solicitation of members of an organization, society or church
by its own members.
I.
Any contract or sale made in violation of Subsections D, G or H shall be null and void and of no effect as to the person solicited, and the 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 City Clerk 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 suspension and/or revocation of all licenses
suspended or revoked.
