Ord. 0790 05-19-97ORDINANCE NO. 790
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, CREATING A NEW CHAPTER 22, ENTITLED PEDDLERS, OF THE
CODE OF ORDINANCES OF THE CITY OF PEARLAND, TEXAS,
PROVIDING DEFINITIONS, PROHIBITIONS AND EXCEPTIONS;
ESTABLISHING RULES AND PROCEDURES FOR PERMITTING AND
REGISTRATION PROCESS; PROVIDING A PENALTY FOR VIOLATION;
HAVING A SAVINGS CLAUSE, A REPEALER CLAUSE, AND A
SEVERABILITY CLAUSE; PROVIDING FOR CODIFICATION, PUBLICATION
AND AN EFFECTIVE DATE; AND CONTAINING OTHER PROVISIONS
RELATED TO THE SUBJECT.
WHEREAS, the City's growth and progressive urbanization has resulted in
increased activity by peddlers; and
WHEREAS, the City Council finds and determines that regulating the activities
of peddlers within the City is reasonable and necessary to protect the health, safety,
and welfare of the public; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That Chapter 22, PEDDLERS, of the Code of Ordinances of the City
of Pearland, Texas, which is set forth in Exhibit "A" attached hereto and incorporated
herein for all purposes, is hereby authorized and implemented.
Section 2. Penalty. Any person, firm or corporation who shall violate or fail to
comply with the requirements of any provisions of the Code herein adopted shall be
deemed guilty of a misdemeanor, and shall, upon conviction by a court of competent
jurisdiction, be punished as provided in Section XXVI, of Exhibit "A" attached hereto.
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ORDINANCE NO. 790
Section 3. Savings. All rights and remedies which have accrued in favor of the
City under this Chapter and amendments thereto shall be and are preserved for the
benefit of the City.
Section 4. Repealer. All ordinances and parts of ordinances in conflict herewith
are hereby repealed but only to the extent of such conflict.
Section 5. Severability. If any section, subsection, sentence, clause, phrase
or portion of this Ordinance is for any reason held invalid, unconstitutional or
otherwise unenforceable by any court of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent provision and such holding shall not
affect the validity of the remaining portions thereof.
Section 6. Codification. It is the intent of the City Council of the City of
Pearland, Texas, that the provisions of this Ordinance shall be codified in the City's
official Code of Ordinances as provided hereinabove.
Section 7. Publication and Effective Date. The City Secretary shall cause this
Ordinance, or its caption and penalty, to be published in the official newspaper of the
City of Pearland, upon passage of such Ordinance. The Ordinance shall then become
effective ten (10) days from and after its publication, or the publication of its caption
and penalty, in the official City newspaper.
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ORDINANCE NO. 790
PASSED and APPROVED ON FIRST READING this the /V 77/ day of
ATTEST:
YO CIITE
I
LOR
iJ
CRE RY
, A. D., 1997.
TOM REID
MAYOR
PASSED and APPROVED ON SECOND AND FINAL READING this the 4ay
of , A. D., 1997.
ATTEST:
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TOM REID
MAYOR
ORDINANCE NO. 790
APPROVED AS TO FORM:
AIES McCULLOUGH
CITY ATTORNEY
Exhibit "A"
CHAPTER 22
PEDDLERS
SECTION I. DEFINITIONS.
Charitable purpose shall mean philanthropic, religious, or other nonprofit objectives,
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 civic organization; or the
benefit of any educational institution. Charitable purpose shall not be construed to include the
direct benefit of the individual making the solicitation. Charitable purpose shall not be construed
to include the benefit of any political group or political organization which is subject to financial
disclosure under state or federal law.
Home solicitation shall mean a consumer transaction for the purchase of goods, services,
or realty, payable in installments or in cash, in which the merchant engages in a personal
solicitation of the sale to the consumer at a residence and the consumer's agreement or offer to
purchase is given at the residence to the merchant. A home solicitation transaction shall not
include a sale made pursuant to a preexisting revolving charge account or 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 purchase is represented by a licensed attorney or in
which the transaction is being negotiated by a licensed real estate broker.
Interstate commerce shall mean soliciting, selling, or taking orders for, or offering to take
orders for any goods, wares, merchandise, photographs, magazines or subscriptions to
magazines, or things which, at the time the order is taken, are in any federal district or territory,
any commonwealth, or in any state other than Texas, or will be produced in any federal district
or territory, any commonwealth or any state other than Texas, and shipped or introduced into
the City in fulfillment of such orders.
Peddler shall mean all persons, including their agents and employees, who engage in the
temporary or transient business in the City of selling, offering for sale, soliciting for sale,
leasing, renting, bartering or exchanging, directly or indirectly, any goods, merchandise, or
services, or exhibiting the same for such a purpose, or for the purpose of taking orders for such
a transaction. The term "peddler" shall include the terms "solicitor", "transient merchant",
"transient vendor", "itinerant merchant", "itinerant vendor", or "itinerant photographer".
Solicitation shall mean any uninvited request for the donation of money, property, or
anything of value, or the pledge of a future donation of money, property, or anything of value;
or the selling or offering for sale of any property, real or personal, tangible or intangible,
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whether of value or not, including, but not limited to, goods, books, pamphlets, tickets,
publications or subscriptions to publications. Expressly excluded from the meaning of
"solicitation" is any offer of membership in any organization. A solicitation is complete when
the solicitation is communicated to any individual then located within the corporate limits of the
City.
SECTION II. PROHIBITIONS.
1t shall be unlawful for any peddler to sell, lease, rent, barter, or exchange any goods,
wares, merchandise or services on a commercial, retail basis or to offer to do so except out of
a permanent structure complying with all construction codes, ordinances, and regulations of the
City applicable thereto, including but not limited to, parking requirements and providing sanitary
facilities for both men and women therein.
It shall be unlawful for any peddler to set up outdoor display facilities for merchandise
of any nature upon any property within the City unless the same owner, operator, or
concessionaire is also the owner, lessee, or tenant of a permanent structure located on the same
property and in full compliance with all construction codes, ordinances, and regulations of the
City applicable thereto.
Vacant property. It shall be unlawful for any peddler to conduct business upon or from
improved or unimproved vacant property within the City.
Business from vehicle. It shall be unlawful for any peddler to park any motor vehicle in
the City for the purpose of using the same as a stationary business stand or location.
Public property. It shall be unlawful for any peddler to conduct business on any public
sidewalk, street, or other public property.
SECTION III. EXCEPTIONS.
The prohibitions provided above shall not prohibit the following activities, so long as said
activities are in compliance with applicable subsections of Section IV herein.
1. Peddlers Requiring a Permit:
(a) sale of agricultural products, meats, poultry, or other articles of food, in
the natural state, grown or produced by the peddler and sold at a location
other than the location where said products are grown or produced.
(b) sales, solicitations, or distributions which are incidental, customary, and
commonly associated with a national, local, ethnic, or religious holiday,
said activity to be restricted to the length of time the holiday or event is
normally and customarily celebrated by the public.
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(c) periodic fairs, carnivals, bazaars, and other amusement activities
conducted in full compliance with all ordinances and statutes regulating
the same.
(d). mobile health services, including but not limited to, blood banks and
mammography screening.
(e) sale of frozen desserts from a sanitary vehicle in full compliance with all
ordinances and statutes regulating the same.
(f) uninvited home solicitations.
2. Peddlers Requiring a Registration Card:
(a) sale of agricultural products, meats, poultry, or other articles of food, in
the natural state, grown or produced by the peddler and sold at the
location where said products are grown or produced.
(b) sales, solicitations, distributions, or stationary collections made for
charitable purposes.
(c) persons engaged in interstate commerce.
3. Peddlers Exempt from this Chapter:
(a) temporary outdoor activities conducted or sponsored by the owner, lessee,
or tenant holding the certificate of occupancy for the permanent structure
located on the same property.
(b) commercial travelers in the ordinary course of business who sell or exhibit
for sale goods, wares, or merchandise to firms, persons, or corporations
engaged in the business of buying, selling, and dealing in the same.
(c) business activities conducted in compliance with a franchise granted by the
City.
(d) business activities, transactions, and activities in public buildings or on
public property in which the City is a party or a sponsor.
(e) sidewalk cafes, business activities conducted within public market areas,
and the sale of newspapers on public property, in full compliance with all
ordinances and statutes regulating the same.
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SECTION IV. PERMIT/REGISTRATION CARD REQUIRED.
1. All commercial peddlers set forth in SECTION 111-1 shall apply for and obtain a
permit from the City Secretary in accordance with this chapter before conducting business in the
City.
2. All peddlers conducting such activities for charitable purposes and all persons engaged
in interstate commerce set forth in SECTION Ill-2 shall file a registration statement and obtain
a registration card from the City Secretary in accordance with this chapter before conducting
business in the City.
3. All commercial activities set forth in SECTION III-3 shall be exempt from the
requirements of this chapter.
SECTION V. PERMIT APPLICATION.
All commercial peddlers required to obtain a permit in accordance with SECTION III -I
of this chapter, shall make written application to the City Secretary and provide the following
information, which shall be subject to verification by the Pearland Police Department:
1. Name, date of birth, social security number, Texas driver's license number,
residence address and telephone number, and business address and telephone
number of applicant.
A physical description of the applicant, including height, weight, and hair
color.
3. One photograph of applicant of recent date no older than one year.
4. Name and address of the person, firm, or corporation, if any, represented by
applicant.
5. If a partnership, the applicant shall state the names of all partners and the
principal business address and telephone number of each partner.
6. If a corporation, the applicant shall state whether it is organized under the laws
of Texas or is a foreign corporation, and must show the mailing address,
business location, telephone number, name of the individual in charge of the
Pearland office of such corporation, and the names and addresses of all officers
and directors or trustees of said corporation, and, if a foreign corporation, the
place of incorporation, and provide a certified copy of its permit to do business
in Texas.
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7. In the event an applicant states in the application that he or she represents a
person, firm, or corporation from whom or through whom orders are to be
solicited or cleared, then upon filing such application, the applicant shall also
execute an affidavit as provided by the City Secretary, signed by such person,
or in the event of a partnership, by one of the partners in the partnership, or
in the event of a corporation, by an officer of the corporation, attesting to the
application of said applicant as being true and correct and further attesting that
said applicant is a bona fide representative of said person, partnership, or
corporation.
8. The kind of goods or services offered and whether the same are to be offered
for sale, rent, lease, barter, or exchange.
9. The period of time the applicant wishes to conduct business within the City.
10. The names, mailing address and telephone number of all individuals who will
be in direct charge or control of the solicitation of funds.
I1. A description of the methods and means by which the solicitation of funds is
to be accomplished, including but not limited to, whether the applicant, upon
any sale or order, shall demand, accept, or receive payment or deposit of
money in advance of final deliveries.
12. A copy of applicant's current state sales tax certificate, if applicable.
13. The last five cities or towns wherein the applicant has conducted business
before corning to this city.
14. A statement as to whether the applicant has been convicted of any misdemeanor
or felony crime of any nature, including but not limited to, any crime of moral
turpitude, in this state or any other state, and if having been so convicted, a full
statement as to the nature, place, date, and circumstances of said conviction.
15. A statement that peddler's permit will not be used as, or represented to be, an
endorsement by the City of the applicant, its officers, or employees.
16. Any other information which the City deems necessary for the administration
of this chapter.
SECTION VI. REGISTRATION STATEMENT.
All peddlers required to file a registration statement and obtain a registration card in
accordance with SECTION 111-2 of this chapter, shall provide the following information to the
City Secretary, which shall be subject to verification by the Pearland Police Department:
Name, date of birth, social security number, Texas driver's license number,
residence address and telephone number, and business address and telephone
number of registrant.
2. Name and address of the person, firm, or corporation, if any, represented by
registrant.
3. If registrant desires to conduct activities for charitable purposes, proof of
tax-exempt status as determined by the Internal Revenue Code.
4. In the event a registrant states in the registration statement that he or she
represents a person, firm, or corporation from whom or through whom orders
are to be solicited or cleared, then upon filing such registration statement, the
registrant shall also execute an affidavit as provided by the City Secretary,
signed by such person, or in the event of a partnership, by one of the partners
in the partnership, or in the event of a corporation, by an officer of the
corporation, attesting to the registration statement of said registrant as being
true and correct and further attesting that said registrant is a bona fide
representative of said person, partnership, or corporation, and will not receive,
either directly or indirectly, any profits, compensation, or other things of value
as payment for conducting such activities.
5. The kind of goods or services offered and whether the same are to be offered
for sale, rent, lease, barter, or exchange.
6. The period of time the registrant wishes to conduct business within the City.
7. The names, mailing address and telephone number of all individuals who will
be in direct charge or control of the solicitation of funds.
8. A description of the methods and means by which the solicitation of funds is
to be accomplished, including but not limited to, whether the registrant, upon
any sale or order, shall demand, accept, or receive payment or deposit of
money in advance of final deliveries.
9. A copy of registrant's current state sales tax certificate, if applicable.
10. A statement as to whether the registrant has been convicted of any
misdemeanor or felony crime of any nature, including but not limited to, any
crime of moral turpitude, in this state or any other state, and if having been so
convicted, a full statement as to the nature, place, date, and circumstances of
said conviction.
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11. A statement that registration statement will not be used as, or represented to be,
an endorsement by the City of the registrant, its officers, or employees.
12. Any other information which the City deems necessary for the administration
of this chapter.
SECTION VII. SERVICE OF PROCESS.
Before any permit or registration card is issued under this chapter, the applicant or
registrant shall file with the City Secretary, a fully executed affidavit nominating and appointing
the Secretary of State of the State of Texas as his or her true and lawful agent, with full power
and authority to accept and acknowledge service of notice of process for and on behalf of the
applicant or registrant and service of summons in any action brought upon the applicant or
registrant as a result of activities conducted in accordance with this chapter.
SECTION VIII, FINGERPRINTS/PHOTOGRAPHS.
At the time of applying for a permit or registration card as required by this chapter, the
applicant or registrant shall submit to fingerprinting and photographing by the Pearland Police
Department, upon request, and such fingerprints shall be kept as a permanent record in the
office of the Pearland Police Department. All information provided by applicant or registrant
shall be subject to verification by the Pearland Police Department.
SECTION IX. FEES.
Before any permit shall be issued under the provisions of this chapter, the applicant
therefor shall pay a fee of $75.00 per month for a term not to exceed three (3) months.
The provisions of this chapter pertaining to fees shall not apply to any registrant required
to obtain a registration card.
SECTION X. BOND.
The application for a permit required by the provisions of this chapter shall be
accompanied by a bond in the penal sum of One Thousand Dollars ($1,000.00), signed by the
applicant, and signed as surety by a surety company, authorized to do business in the state,
conditioned for the final delivery of goods, wares, merchandise, or services, in accordance with
the terms of an order obtained prior to delivery, and also conditioned to indemnify any and all
purchasers or customers from any and all defects in material or workmanship that may exist in
the article sold by the principal of said bond, at the time of delivery, and that may be discovered
by such purchaser or customer within thirty (30) days after delivery, and which bond shall be
for the use and benefit of all persons, firms, or corporations that may make any purchase or give
any order to the principal on said bond, either directly or indirectly, and which bond shall pay
all damages to persons caused by, arising from, or growing out of the wrongful, fraudulent, or
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illegal conduct of the applicant while conducting business in the City. In the event one bond or
one surety company serves as the surety for a number of applicants, the bond form shall clearly
set out that the liability of the surety shall be One Thousand Dollars ($1,000.00) for each
applicant making application. The bond shall remain in full force and effect for the entire
duration of the permit and for two (2) years thereafter.
The provisions of this chapter pertaining to bonds shall not apply to any registrant
required to obtain a registration card.
SECTION XL PUBLIC DISCLOSURE.
All information provided by applicants and registrants in accordance with this chapter
shall be a public record and shall be available for inspection by members of the public during
regular business hours and copies may be obtained at cost.
SECTION XII. RECORD.
The City Secretary shall keep a permanent record of all permits and registration cards
issued under this chapter.
SECTION XIII. ISSUANCE OF PERMIT OR REGISTRATION CARD.
No permit or registration card shall be issued under the provisions of this chapter until
all provisions and requirements herein have been met.
Upon verification of compliance with all provisions and requirements of this chapter, the
City Secretary shall issue the permit or registration card within a reasonable period of time, not
to exceed ten (10) business days.
Each permit or registration card issued in accordance with this chapter shall be in a form
prescribed by the City, signed by the City Secretary, dated as of the date of its issuance, and
shall state the duration or term of such permit or registration. Any permit or registration card
in violation of this section shall be void.
SECTION XIV. ADVERTISING RESTRICTED.
It shall be unlawful for a peddler authorized to conduct business in accordance with this
chapter to advertise in any manner whatsoever that such person is so authorized for the purpose
of soliciting.
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SECTION XV. DISPLAY OF PERMIT/REGISTRATION CARD.
Every peddler obtaining a permit or registration card under the provisions of this chapter
and doing business within the City shall display said permit or registration card upon the request
of any person, and failure to so display such permit or registration card shall be a violation of
this section.
SECTION XVI. DURATION.
Every permit or registration card issued under the provisions of this chapter shall be valid
for the period of time stated therein, but in no event shall any such permit or registration card
be issued for a period of time in excess of three (3) months.
SECTION XVII. ENTRANCE TO PREMISES RESTRICTED.
It shall be unlawful for any peddler to enter upon any private premises when the same
are posted with a sign stating "No Peddlers Allowed", "No Solicitations Allowed", or other
words to such effect.
SECTION XVIII. FALSE INFORMATION.
It shall be unlawful for a peddler to give any false or misleading information in
connection with the application for a permit or the filing of a registration statement required by
this chapter.
SECTION XIX. HOURS OF OPERATION.
It shall be unlawful for any peddler to engage in the business of peddling within the City
between the hours of one-half (1/2) hour before sunset and 9:00 a.m. the following morning,
or at any time on Sundays, except by specific appointment with or invitation from the
prospective customer.
SECTION XX. MISREPRESENTATION.
It shall be unlawful for a peddler to make any false or fraudulent statements concerning
the quality or nature of his or her goods, merchandise, or services for the purpose of inducing
another to purchase the same.
SECTION XXI. NOT TRANSFERABLE.
A permit or registration card issued under this chapter shall not be transferable nor give
authority to more than one person to conduct business as a peddler, but any peddler may have
the assistance of one or more persons in conducting such business, so long as said persons are
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identified in the application or registration statement in the same manner as the applicant or
registrant.
SECTION XXII. REFUSING TO LEAVE.
Any peddler who enters upon premises owned, leased, or rented by another and refuses
to leave such premises after having been notified by the owner or occupant of such premises,
or his or her agent, to leave the same and not return to such premises, shall be deemed guilty
of a misdemeanor.
SECTION XXIII. SUPERVISION OF CHILD SOLICITORS.
It shall be unlawful for any person to use children thirteen (13) years of age or less for
any type of solicitation purposes unless said children are actively supervised by an adult
individual at least eighteen (18) years of age, who is permitted or registered or is the agent of
the permittee or registrant, depending upon the type of solicitation. In all cases, the supervising
adult shall be within one hundred (100) yards of the child solicitor.
SECTION XXIV. DENIAL/REVOCATION.
Any permit or registration card issued in accordance with the provisions of this chapter
may be denied or revoked for the violation of any applicable provision of federal law, state law,
or City ordinance, including but not limited to the following:
(a) false. inaccurate, incomplete, or misleading information contained in the permit
application or registration statement;
(b) the prior conviction of a felony, misdemeanor (other than traffic offenses), or
crime of moral turpitude, or the commission or conviction of any felony,
misdemeanor (other than traffic offenses), or crime of moral turpitude, during
the term ofthe permit or registration;
(c) any act or practice that violates the Texas Deceptive Trade Practices Act;
(d) any act or practice that violates the Home Solicitation Sales Act;
(e) a violation of this chapter or any other City Ordinance;
(0 evidence that applicant or registrant is a potential threat to the health, safety,
and well-being of the residents, citizens, and inhabitants of the City of
Pearland; or
(g) if the City determines, for any reason, that issuing the permit or registration
card requested is not in the best interests of the public.
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Perm ittee or registrant shall be notified in writing of the denial or revocation. Said notice
shall set forth the grounds for denial or revocation. Denial and revocation shall be effective
seventy-two (72) hours after receipt of notice of denial or revocation. However, performance
under said permit or registration card shall be suspended immediately upon notice. In the event
a permit or registration card is revoked, pursuant hereto, the period of' revocation shall extend
until the date the permit or registration card so revoked would have otherwise expired. Any
peddler having two (2) permits or registration cards revoked within any twenty-four (24) month
period shall be ineligible for the receipt of a permit or registration card for a period of one (1)
year following the date of the second revocation.
SECTION XXV. APPEAL.
In the event a permit or registration card is revoked or denied, the permittee or registrant
shall have the right to appeal said revocation or denial by giving written notice to the
City Manager within seventy-two (72) hours after receipt of notice of revocation or denial. If
said notice is timely received, the City Manager or his designee shall make inquiry and
determine whether the City Secretary properly revoked or denied the permit or registration card
and shall schedule a hearing with said permittee or registrant within seventy-two (72) hours after
the City Manager receives permittee's or registrant's appeal. The City Manager or his designee
shall give permittee or registrant notice of the time, date, and place of such hearing. After the
hearing, the City Manager or his designee shall make a decision in writing affirming or
reversing the revocation or denial. In the event of an affirmation of the revocation or denial,
the permit or registration card shall immediately be returned to the City Secretary.
SECTION XXVI. PENALTY.
Any person found guilty of violating any provision of this chapter shall be deemed guilty
of a misdemeanor, and upon conviction therefor shall be fined any amount not exceeding
Five Hundred Dollars ($500.00) and shall be assessed court costs as provided by law, and each
day any such violation continues shall constitute a separate offense.
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