All persons except a person having a fixed and permanent place of business in the city and licensed under the provision of section 13.40 or 13.42 of this Code or licensed and regulated by the state, must comply with this chapter before offering or selling goods, merchandise or services from place to place or upon private property, upon streets, parks or other public places of the city, or from any building or other enclosure or place, or in any vehicle of any nature whatsoever, either for immediate delivery or for delivery in the future. This Article I shall not require persons holding incidental sales, such as garage sales or holiday crafts sales, at their permanent place of residence to obtain identity permits for said sales, nor shall it require those persons to obtain any additional city-issued permits or licenses for said sales other than those required under other provisions of this Code.

All such persons subject to this article must obtain an identity permit pursuant to this article and are also subject to the business license provisions of Chapter 13. In addition, a mobile vending permit may be required under Article II of this chapter.

No person shall be relieved from the provisions of any section of this chapter by reason of associating temporarily with, or by conducting a transient business in connection with, any local merchant having a fixed place of business within the city.

Violation of any section of this chapter shall be a misdemeanor. (Ord. No. 97-10, § I, 11-5-97)

16A.2 Application; application fee; information to be shown.

All applicants for an identity permit must pay an application fee as set out by council resolution and must make application fee as set by council resolution and must make application therefor to the chief of police of the city upon forms provided by the city, which forms shall require the following information from the applicant:

(1) Full name, permanent business address, local business and residence address of the applicant or its authorized representative; if other than an individual applicant, the nature of the applicant, that is, whether partnership, firm or corporation; the full name, age, address and occupation of each person who shall actually vend, solicit or otherwise engage in any act required by this chapter to be licensed on behalf of the applicant.

(2) A specific description of the article, service or contract proposed to be sold, performed, whether for immediate or future delivery or performance and the proposed method of delivery and performance, including information as to whether such sales will be made by quantity, weight, quality, package or otherwise, and whether delivery or performance will be made personally or by mail or in what other method. (Ord. No. 97-10, § I, 11-5-97)

16A.3 Documents to accompany application.

In the event any form, contract, order blank, warranty, agreement or other written or printed document is to be signed by the purchaser or person receiving the property or service a copy of such form shall be attached to the application. (Ord. No. 97-10, § I, 11-5-97)

16A.4 Photographs to accompany application.

Each application for an identity permit must be accompanied by two (2) prints of a recent photograph of each individual person who shall actually engage in vending, selling or soliciting, which photographs shall not exceed one-inch square in size and shall be full front views of the face and head only of such persons. (Ord. No. 97-10, § I, 11-5-97)

16A.5 Cash deposit or bond required; amount.

In each case where it appears that the applicant for an identity permit pursuant to this chapter will or may demand, accept or receive payments or deposits of money or property in advance of final delivery or performance, the application shall be accompanied by a cash deposit or by a bond to the city in a penal sum as set by council resolution issued by a surety company authorized to do business within the state. Such bond shall be conditioned for making final delivery of goods, wares or merchandise or for final performance of services to be performed in accordance with the order, agreement or contract entered into, and failing therein the advance payment or deposit on such order shall be refunded or returned. Such cash deposit or bond, as the case may be, shall remain in full force and effect and be retained for a period of ninety (90) days after the expiration of any such identity permit or the termination of any action upon such bond or deposit of which the license collector shall have been notified, unless sooner released by the license collector. (Ord. No. 97-10, § I, 11-5-97)

16A.6 Reserved.

16A.7 Fingerprint records; exemption.

At the time of making the application for an identity permit, each individual person who shall actually engage in selling, soliciting or vending shall apply to the office of the chief of police of the city for the purpose of being fingerprinted and supplying routine information required on the fingerprint forms provided by the city, including the physical characteristics of each person, identifying marks or scars, age, name, address and signature, and shall pay all fees connected therewith. Such fingerprint records are to be taken in triplicate and each individual so presenting himself is hereby advised that the city reserves the right to retain one of such fingerprint records in its files for permanent safekeeping, and to send one such fingerprint record to the Federal Bureau of Investigation of the Department of Justice at Washington, D.C., and to the Criminal Investigation Department of the California State Department of Justice at Sacramento, California, for the purpose of filing. No fingerprint records will be returned in the event the identity permit applied for is not issued or is subsequently suspended or revoked.

Every applicant who has established residence within the city for a period of five (5) or more years may be exempt from this section requiring fingerprinting of such person. (Ord. No. 97-10, § I, 11-5-97)

16A.8 Issuance; investigation by police department; denial; approval.

The character and fitness of every applicant shall first be investigated by the police department before any license or identity permit shall be issued. After conducting such investigation, if the chief of police finds that the applicant is not of good business reputation or integrity, or that the granting of the identity permit or license would be against the public interest, welfare or safety, then the chief of police shall refuse to issue such identity permit and shall inform the license collector of such action. The license collector shall thereupon deny the issuance of a business license to any person denied an identity permit by the chief of police.

The police chief and his or her authorized agents are authorized to obtain criminal history information for each applicant for the purpose of determining those who have been arrested or convicted for any crime involving moral turpitude, including but not limited to larceny, fraud or lewd or indecent conduct; any crime involving violence, including but not limited to assault or battery or domestic violence or crimes involving weapons; any crime involving the use, possession, sale or transpiration of drugs or alcohol; or any crime substantially related to the qualifications or duties proposed by the applicant. The police chief shall refuse to issue an identity permit as being against the public interest, welfare or safety if it is determined that the applicant has been arrested for, or convicted of, any of the foregoing specified crimes within the previous 36 months, and may refuse to issue an identity permit if it is determined that the applicant has been arrested for, or convicted of, any of the foregoing specified crimes within the previous 60 months, in which event the applicant shall be advised that the criminal history information shall be made available to the city council upon appeal.

Such identity permit shall have affixed to it one of the pictures filed by the applicant, and shall contain reference to the issuance of the identity permit, a description of the individual to whom issued, date of expiration not to exceed one year, and the signature of the individual to whom issued. (Ord. No. 97-10, § I, 11-5-97)

16A.9 Exemptions from payment of fee; compliance with applicable provisions.

Individual applicants exempted from the payment of the license fee specified in Chapter 13, Article III, must comply fully with the requirements of this chapter as to application for identity permits, fingerprinting, bonds and pictures. (Ord. No. 97-10, § I, 11-5-97)

16A.10 Identity permit to be carried on person; to be shown upon demand, altercation, etc.

Each person issued an identity permit under section 16A.8 must retain the same in his or her personal possession at all times while engaged in the business so licensed within the city and must produce and show the same on the demand of any person solicited or of any police officer or official of the city. No person issued an identity permit shall alter, remove or obliterate any entry made upon such permit, or deface such permit in any way. Each identity permit shall be personal and not assignable or transferable, nor shall any identity permit be used by any person other than the person for whom issued. (Ord. No. 97-10, § I, 11-5-97)

16A.11 Conditions and regulations applicable to licensees and permittees.

The following conditions and regulations shall apply to the exercises of the privileges granted by licenses issued under the provisions of Chapter 13 in addition to those set forth in this chapter:

(1) Shouting, Calling Wares, etc. No person shall shout or call his or her wares in a loud boisterous or unseemly manner, or to the disturbance of citizens or dwellers in the city.

(2) Identification by Comparing Signature with That on Identity Permit. Every licensee or holder of an identity permit upon the request of any police officer or other officer of the city shall sign his or her name for comparison with the signature upon the license, identity permit, or upon the license or permit application.

(3) Orders to Be Written in Duplicate, etc. Any person acting under authority of an identity permit issued under this chapter who solicits orders for future delivery shall write each order at least in duplicate, plainly stating the quantity of each article, commodity, contract or service ordered, the price to be paid therefor, the total amount ordered and the amount to be paid on or after delivery. One copy of such order shall be given to the customer.

(4) Hours of Door-to-Door Soliciting. No licensee or his or her agent, servant or employee shall solicit, peddle, or vend goods, wares, merchandise, services, or any other article of any kind from door to door, except between the hours of 9:00 a.m. and sunset.

(5) “No Peddlers” or “No Solicitation” Signs Posted. It shall be unlawful for any person to solicit, peddle or sell by ringing the doorbell or knocking at the door or otherwise calling attention to his or her presence at any building, structure or place of business whereon or wherein a sign bearing the words “No Peddlers” or words of similar import, is painted or affixed so as to be exposed to public view. (Ord. No. 97-10, § I, 11-5-97)

16A.12 Contracts in violation voidable.

Any order, agreement or contract entered into in the city by any person, subject to the provisions of this chapter, who has failed to comply with or who has violated the provisions of this chapter, shall be voidable by the other party as contrary to public policy and against the public interest. (Ord. No. 97-10, § I, 11-5-97)

ARTICLE II. MOBILE VENDING PERMITS

16A.13 Mobile vending permit required.

A mobile vending facility, that is, any portable container, pushcart, stand, vehicle or wagon used for displaying, selling or offering for sale any food, goods or services, shall be prohibited from operating in commercial zoning districts known as C1 Neighborhood Commercial, C2 Central Commercial and C3 Shopping Center Commercial. No person shall place, maintain conduct, park or allow to stand or remain any mobile vending facility within the city limits without first obtaining a written mobile vending permit to do so, as well as any required identity permits under Article I of this chapter, from the chief of police. No mobile vending facility shall display any sign, flag, banner, whether attached or on a separate structure, except such signs as may be painted thereon in compliance with the city zoning ordinance.

The following uses shall not be considered as mobile vending facilities, and are thus not required to obtain a mobile vending permit hereunder:

(1) Vehicles or trucks used for catering or vending prepared foodstuffs and located upon private property at the invitation of the property owner, solely for the use of the owner or said owner’s tenants or employees and not for the use of the general public.

(2) Any nonmotorized pushcart or stand selling food on a paved private sidewalk (not a parking lot) in a commercial zone, provided that permanent restroom facilities (both men’s and women’s) are located on the same parcel of land, are open for public use for all hours that the pushcart or stand is open, and that the owner or operator of the pushcart or stand has written permission from the owner of the restrooms for his customers to use them. Such permission shall be produced and shown on the demand of any person solicited or of any police officer or official of the city.

(3) Temporary fireworks stands, pumpkin patches, Christmas tree lots, or such other seasonal temporary vendors as may be defined by the chief of police. No such vendor shall commence operation more than thirty (30) days in advance of the date of the applicable seasonal holiday.

(4) Temporary vending facilities owned and operated by a nonprofit or charitable organization and conducting sales for an event or occasion not to exceed three (3) consecutive days within any six-month time period. (Ord. No. 97-10, § I, 11-5-97)

16A.14 Permit procedure.

(a) Each application for a mobile vending permit shall be on a form provided by the chief of police, shall be accompanied by an application fee established by the city council, shall be signed by the applicant, and shall include the following:

(1) The names and addresses of each person who will occupy or use the mobile vending facility for purposes of exercising said permit;

(2) A certificate of insurance, stating the insurer’s name, policy terms, and principal amounts, not less than a combined single limit, established annually by the city council, of a policy of insurance against public liability, bodily injury, and property damage arising from the permitted activity. Each such policy shall be amendable only upon thirty (30) days’ advance notice to the city and shall name the city as an additional insured; and

(3) Such additional information as may be required by the city administrator.

(b) The chief of police shall grant a mobile vending permit, based upon the information contained in the application, public records, and the recommendations of departmental staff, if he concludes that the granting of such a permit would be in compliance with all of the provisions of this chapter and the intent of this article, and it appears that no undue traffic safety, litter, parking, or other health and safety consequences would result from exercise thereof. Any such permit may be suspended, modified, or revoked by the chief of police when he finds a violation of or noncompliance with the terms of such permit, or with other applicable laws or regulations. (Ord. No. 97-10, § I, 11-5-97)

16A.15 Prohibited locations; prohibition against loitering.

No person required to obtain a mobile vending permit hereunder shall place, park or allow to stand the portable container, pushcart, stand, vehicle or wagon used for displaying, selling or offering for sale any food, goods or services in any of the following places within the city.

(1) Upon private property, except with the written permission of the owner of the property. Such permission shall be produced and shown on the demand of any person solicited or of any police officer or official of the city.

(2) In or upon any street within three hundred (300) feet of the nearest property line of any elementary or junior high school property.

Regardless of whether on public or private property, no person required to obtain a mobile vending permit hereunder shall place, park or allow to stand the portable container, pushcart, stand, vehicle or wagon at any one place except at the request of a bona fide purchaser for a reasonable period of time, not to exceed ten (10) minutes, provided that when such person thereafter moves any such portable container, pushcart, stand, vehicle or wagon, it shall be moved a minimum distance of one hundred (100) feet before again being stopped. (Ord. No. 97-10, § I, 11-5-97)

ARTICLE III. CHARITABLE SOLICITATION

16A.16 Solicitation of charitable, religious or educational funds or other property; permit requirements.

It shall be unlawful for any person or organization to solicit within the city for a contribution of funds, money or other property to be used or expended for any charitable, religious or educational purpose or object without the person or the organization on whose behalf the person is soliciting first obtaining a written solicitation permit so to do from the chief of police. In addition, any individual solicitors who solicit door to door at any businesses or residences shall first obtain an identity permit pursuant to Article I of this chapter, except for persons having a permanent place of residence in the city who are soliciting for funds, money or other property or offering for sale incidental merchandise, such as candy, cookies, magazines and the like, for a charitable, religious or educational purpose and whose organization has obtained the solicitation permit from the chief of police described above. Notwithstanding any other provisions of section 16A.8 of Article I, the chief of police shall not have the discretion to deny an identity permit to any individual solicitor for charitable, religious or educational purpose if such individual has provided all required information and has paid the applicable fee.

Before the chief of police shall issue a solicitation permit, the person or organization applying therefor shall file a written statement setting forth the following information:

(1) The object and purpose for which it is desired to solicit funds or other property.

(2) Who shall have charge and control of such funds or property.

(3) If such funds or property are solicited for permanent corporations, organizations or institutions, where such organizations or institutions are located, and a copy of the organization’s federal tax exemption certificate, or other proof of bona fide charitable status.

In case of doubt as to the responsibility of any person seeking a permit to solicit for such funds or property, the permit may be denied subject to the provisions of section 16A.18.

Nothing in this section shall be construed to make it mandatory for the chief of police to grant the permit in this section where the public peace or safety might be endangered in so doing. (Ord. No. 97-10, § I, 11-5-97)

ARTICLE IV. REVOCATION AND SUSPENSION

16A.17 Revocation and suspension of license and permits.

In the event that the chief of police of the city has reasonable cause to believe and does believe that any licensee or holder of any permit issued under this chapter is violating any provisions of this chapter, of any permit issued under this chapter, or of any other law or ordinance relating to the business of the licensee, he shall have the power to and shall be authorized to suspend or revoke such license and all identity permits so issued, as well as any mobile vending permit. (Ord. No. 97-10, § I, 11-5-97)

16A.18 Administrative hearings and appeals.

In the event that any applicant desires to appeal from any order, denial of exemption, order of suspension, or any other ruling of the license collector, the chief of police, or any other officer of the city made under the provisions of this chapter, such applicant or any other person aggrieved thereby shall file written notice of such appeal with the city clerk within ten (10) calendar days of the date of such action. The appeal shall be resolved pursuant to the city’s adopted municipal administrative hearing policy, and a final decision rendered pursuant thereto shall be final. (Ord. No. 97-10, § I, 11-5-97)

ARTICLE V. LIMITS ON SOLICITATION

16A.19.1 Definitions.

Unless otherwise expressly stated herein, whenever used in this article, the following terms shall respectively be deemed to mean:

“Aggressive manner” means any of the following:

(1) Approaching or speaking to a person, or following a person before, during or after soliciting, asking or begging, if that conduct is intended or is likely to cause a reasonable person to fear bodily harm to oneself or to another, damage to or loss of property, or otherwise be intimidated into giving money or other thing of value;

(2) Intentionally touching or causing physical contact with another person or an occupied vehicle without that person’s consent in the course of soliciting, asking or begging;

(3) Intentionally blocking or interfering with the safe or free passage of a pedestrian or vehicle by any means, including but not limited to intentionally causing a pedestrian or vehicle operator to take evasive action to avoid physical contact;

(4) Using violent or threatening gestures toward a person solicited either before, during, or after, soliciting, asking or begging;

(5) Persisting in closely following or approaching a person, after the person solicited has informed the solicitor by words or conduct that such person does not want to be solicited or does not want to give money or any other thing of value to the solicitor; or

(6) Using profane, offensive or abusive language which is inherently likely to provoke an immediate violent reaction, either before, during, or after solicitation.

“Automated teller machine (ATM)” means any electronic information processing device which accepts or dispenses cash in connection with a credit, deposit or convenience account.

“Automated teller machine facility” means the area comprised of one (1) or more automated teller machines, and any adjacent space which is made available to banking customers after regular banking hours.

“Bank” means any member bank of the Federal Reserve System and any bank, banking association, trust company, savings bank or other banking institution organized or operated under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.

“Check-cashing business” means any person duly licensed as a check seller, bill payer or prorater pursuant to Division 3 of the California Financial Code, commencing with Section 12000.

“Credit union” means any federal credit union and any state-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union Administration.

“Public place” means a place to which the public or a substantial group of persons has access and includes but is not limited to any street, highway, sidewalk, parking lot, plaza, transportation facility, school, place of amusement, park, playground and any doorway, entrance, hallway, lobby and other portion of any business establishment, apartment house or hotel not constituting a room or apartment designed for actual residence.

“Public transportation vehicle” means any vehicle owned by the city or any other public entity, or contracted for use by the city, and used for the provision of public transportation services.

“Restaurant” means any business establishment which engages in the business of serving food to customers for immediate consumption, including “fast food” restaurants and traditional “sit-down” restaurants.

“Savings and loan association” means any federal savings and loan association and any “insured institution” as defined in Section 401 of the National Housing Act, as amended, and any federal credit union as defined in Section 2 of the Federal Credit Union Act.

“Solicit, ask or beg” means the use of the spoken, written or printed word or use of bodily gestures, signs or other means for the purpose of obtaining an immediate donation of money or other thing of value or for the purpose of selling or trading goods or services. (Ord. No. 2010-10, § 1, 7-19-10)

16A.19.2 Aggressive solicitation prohibited.

No person shall solicit, ask or beg in an aggressive manner in any public place. (Ord. No. 2010-10, § 1, 7-19-10)

16A.19.3 Solicitation at specified locations prohibited.

(a) Banks and ATMs. No person shall solicit, ask or beg within twenty-five (25) feet of any entrance or exit of any bank, savings and loan association, credit union or check-cashing business during its business hours or within twenty-five (25) feet of any automated teller machine during the time it is available for customers’ use; provided, however, that when an automated teller machine is located within an automated teller machine facility, such distance shall be measured from the entrance or exit of the automated teller machine facility.

(1) Exemption. The provisions of subsection (a) of this section shall not apply to any unenclosed automated teller machine located within any building, structure or space whose primary purpose or function is unrelated to banking activities, including but not limited to supermarkets and school buildings; provided, that such automated teller machine shall be available for use only during the regular hours of operation of the building, structure or space in which such machine is located.

(b) Motor Vehicles and Parking Lots.

(1) Motor Vehicles.

a. No person shall approach an operator or occupant of a motor vehicle for the purpose of soliciting, asking or begging while such vehicle is being operated in a lane of traffic on a public street or public right-of-way, in a public parking lot, or in an entrance or exit to a public parking lot, whether the motor vehicle is moving or not, and whether or not the person is being solicited by the driver of the vehicle.

b. No person shall solicit, ask or beg from any traffic median within any public street or public right-of-way.

c. No person shall solicit, ask, or beg any operator or occupant of a motor vehicle that is being operated in a lane of traffic on a public street or public right-of-way, whether the motor vehicle is moving or not, and whether or not the person is being solicited by the driver of the vehicle, where the motor vehicle is located within one hundred (100) feet of any intersection controlled by an official traffic signal as defined in Vehicle Code Section 21450, or within fifty (50) feet of any entrance or exit to a parking lot of any business establishment located within a commercial district of the city of Gilroy. Persons may otherwise solicit, ask or beg by conduct that includes but is not limited to the holding of signs on public sidewalks and other public places at locations that are more than one hundred (100) feet from any intersection controlled by an official traffic signal and more than fifty (50) feet from any entrance or exit to a parking lot of any business establishment located within a commercial district.

(2) Parking Lots. No person shall solicit, ask or beg in any public parking lot or structure any time after dark. “After dark” means any time from one-half hour after sunset to one-half hour before sunrise.

(3) Exemptions. Section 16A.19.2 and this section shall not apply to any of the following:

a. Solicitations related to business which is being conducted on the subject premises by the owner or lawful tenants;

b. Solicitations related to the lawful towing of a vehicle;

c. Solicitations related to emergency repairs requested by the operator or other occupant of a vehicle;

d. Solicitations of emergency vehicles; and

e. Hailing a taxicab or public transportation vehicle.

(c) Public Transportation Vehicles and Stops. Other than a person hailing a public transportation vehicle, no person shall solicit, ask or beg within twenty-five (25) feet of any public transportation vehicle stop, facility or area designated for the pick-up of passengers.

(d) Restaurants. Any person who solicits, asks, or begs in any outdoor or indoor dining area of a restaurant or other establishment serving food for immediate consumption is guilty of a violation of this section if he or she remains there after being asked to leave by: the owner, manager or supervisor of the restaurant or other food establishment; the agent of the owner, manager or supervisor of the restaurant; or a member of a security force employed by the restaurant or by a peace officer as defined in Chapter 4.5 of Title 3 of the California Penal Code (commencing with Penal Code, 830), acting at the request of any of the persons specified in this subsection.

(e) Written Material. This Article V shall not prohibit persons from soliciting, asking, or begging, in a nonaggressive manner, with the use of signs, leaflets or other written material at locations or in a manner that is not otherwise prohibited by sections 16A.19.2 and this section. (Ord. No. 2010-10, § 1, 7-19-10)

16A.19.4 Violation – Penalty.

Any violation of the provisions of this chapter is punishable in accordance with section 1.7 of this Code. (Ord. No. 2010-10, § 1, 7-19-10)

16A.19.5 Other regulations.

Nothing in this Article V is intended to supersede or conflict with any requirement or limitation contained in Articles I through IV of this chapter. (Ord. No. 2010-10, § 1, 7-19-10)

16A.19.6 Severability.

If any section, subsection, subdivision, sentence, clause, phrase or word of this Article V is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Article V. The city council hereby declares that it would have passed and adopted Ordinance No. 2010-10, establishing this Article V, and each and all provisions thereof, irrespective of the fact that one or more provisions may be declared invalid or unconstitutional. (Ord. No. 2010-10, § 1, 7-19-10)

Editor’s note: Ord. No. 97-10, § I, adopted Nov. 3, 1997, repealed and replaced Ch. 16A. Former Ch. 16A pertained to similar subject matter and derived from Ord. Nos. 91-5, § 1, 3-4-91, and 94-3, § I, 3-21-94.

Cross references—Licenses, Ch. 13.

Chapter 16APEDDLERS, SOLICITORS, VENDORS AND OTHER TRANSIENT BUSINESSES1

16A.1 Required.