Chapter 5.08 SOLICITORS--PEDDLERS--TRANSIENT VENDORS

A. "Business license" means the license issued by the city under chapter 5.04 that allows the holder to engage in a business, trade or profession within the city.

B. "Catering vehicle" means any vehicle that may be moved under its own power and not easily or readily moved by any person, or which must be hauled or moved by another vehicle, and which is used, designed or outfitted to dispense ready-to-eat food or beverages to patrons. "Catering vehicle" includes, but is not limited to, those vehicles which prepare or dispense hot food and those which prepare or dispense unheated or unprepared food, including produce. "Catering vehicle" does not include:

1. Vehicles used solely to deliver food or beverages previously requested by a patron, home or business establishment, such as "Meals-on-Wheels" or delivery trucks.

2. Vehicles used for the display, sale or dispersal of food or beverages as part of an organized community event for which permission has been granted by the city.

C. "Person" means any person, firm, corporation, association, club, society, or other organization.

D. "Peddler" means any person, whether a resident of the city or not, traveling from place to place or from house to house in the city, carrying or transporting goods, wares, merchandise, or personal property of any nature and offering the same for sale, or selling and delivering the same to purchasers. This definition also includes any person who solicits orders and as a separate transaction makes deliveries to purchasers. This definition also includes any person who solicits orders and as a separate transaction makes deliveries to purchasers as a part of a scheme to evade the provisions of this chapter.

E. "Pushcart" means any vehicle which does not move under its own power, or which may be easily and readily moved by any person, and which is used, designed or outfitted to prepare or dispense ready-to-eat food or beverages or any other good or item of merchandise of any nature, and offering the same for sale to any person. "Pushcart" includes, but is not limited to, those vehicles which prepare or dispense hot food and those which prepare or dispense unheated food including produce, and those vehicles used for the sale of frozen novelties (individual ice cream bars and similar items).

F. "Solicitor" or "canvasser" means any individual traveling from place to place or from house to house in the city, taking or soliciting orders for the sale of goods, wares, merchandise, or personal property of any nature for future delivery, or for services to be performed in the future. This definition also includes any person who, for himself or herself or for another person, firm, or corporation, uses or occupies a space, within or without a building, for the purpose of exhibiting goods, wares, merchandise, or other personal property to prospective purchasers and taking orders for future delivery, or for the purpose of taking orders for services to be performed in the future.

G. "Transient vendor" means any person, whether a resident of the city or not, and whether acting for himself or herself or as the employee, agent or consignee of another person, who engages in a temporary business of selling and delivering goods, wares, merchandise, or other personal property of any nature within the city, and who, in furtherance of such purpose, hires, leases, uses, or occupies a temporary location in the city, within or without a building for the exhibition, sale and delivery of such goods, wares, merchandise, or personal property. Persons so engaged shall not be relieved from complying with the provisions of this chapter merely by reason of associating temporarily with any local dealer, trader, merchant, or auctioneer, or by conducting such transient business in connection with, or in the name of, any local dealer, trader, merchant, or auctioneer.

H. "Vendor identification card" means the document issued by the city that identifies the person or the company which has been issued a vendor permit and that must be worn by that person while he or she is engaged in selling activities.

I. "Vendor permit" means the document issued by the city in accordance with the provisions of this chapter that allows the holder to engage in selling activities within the city’s jurisdiction.

J. Wherever the terms "selling" or "sales" are used herein, "buying" and "purchasing" shall be deemed included. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.020 Vendor permits--Required.

A. It is unlawful for any solicitor, canvasser, peddler, or transient vendor, as defined in section 5.08.010, to engage in business within the city limits without first obtaining a vendor permit.

B. A separate vendor permit shall be obtained by each solicitor, canvasser, peddler, or transient vendor and for each separate catering vehicle, even when conducted under the same ownership.

C. Until June 30, 2010, each person or company holding a vendor permit may operate up to eight (8) pushcarts; provided, that the person or company on the effective date of the ordinance codified in this chapter was then operating that many pushcarts. Beginning July 1, 2010, each person or company holding a vendor permit may operate up to three (3) pushcarts. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.025 Business licenses--Required.

Any business conducting sales or solicitations within the city must obtain a business license pursuant to chapter 5.04 of the city code and must meet all other conditions or requirements imposed upon them under the law. (Ord. 487 §1(part), 2009).

5.08.030 Vendor permit application.

Applicants for vendor permits under this chapter shall file with the city clerk a sworn application in writing (in duplicate) on a form to be furnished by the city clerk, which shall give the following information:

A. Name and physical description of the applicant;

B. Permanent home address and telephone number;

C. Local address and telephone number;

D. A brief description of the business or activity to be conducted and of the place where the same will be conducted;

E. If employed, the name, address and telephone number of the employer, or if acting as agent, the name, address and telephone number of the principal who is being represented with credentials in written form establishing the relationship and the authority of the employee or agent to act for the employer or principal, as the case may be;

F. The length of time for which the right to do business is desired;

G. A photograph of the applicant, taken within sixty (60) days immediately prior to the date of filing of the application, measuring two inches (2") by two inches (2"), and showing the head and shoulders of the applicant in a clear and distinguishing manner;

H. The fingerprints of the applicant;

I. The names of at least two (2) reliable persons residing in the county of Monterey, state of California, who will certify as to the applicant’s good character and business reputation, or, in lieu of the names of such references, such other available evidence as to the good character and business reputation of the applicant as will enable an investigator to properly evaluate the applicant’s character and responsibility;

J. A statement as to whether or not the applicant has been convicted of any criminal offense, whether felony or misdemeanor, other than minor traffic violations. Also, as to any such offense, the date and place of conviction, the nature of the offense, and the punishment or penalty assessed therefor;

K. Proof of possession of any license or permit which, under federal, state, or local laws or regulations, the applicant is required to have in order to conduct the proposed business, or which, under any such law or regulation, would exempt the applicant from the permitting requirements of this chapter. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.040 Vendor permit fee.

At the time the application is filed with the city clerk, the applicant shall pay a fee sufficient to cover the cost to the city of processing the application. The amount of the fee shall be established, and from time to time may be amended, by resolution of the city council. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.050 Vendor permit--Investigation and issuance.

A. Upon receipt of an application under the provisions of this chapter, the original shall be referred to the chief of police, who shall cause an investigation to be made of the applicant’s moral character and business reputation as he shall deem necessary for the protection of the public health, safety, and general welfare.

B. If as the result of such investigation, the chief of police finds that the moral character or business reputation of the applicant is such as will endanger the public health, safety, or general welfare, he shall endorse on such application his disapproval and the reasons for the same and shall notify the applicant that his or her application is disapproved and that no vendor permit will be issued. Said notice shall be mailed to the applicant at the address shown on the application form, or at the applicant’s last-known address.

C. If as the result of such investigation the moral character and business reputation of the applicant are found to be satisfactory, the chief of police shall endorse his approval on the application and shall return the application to the city clerk.

D. Upon receipt of an approved application from the chief of police, the city clerk shall, upon payment of the prescribed fee, deliver the required vendor permit to the applicant. Such vendor permit shall contain the signature and seal of the city clerk and shall show the name, address and photograph of the permittee, the class of vendor permit issued, the kind of goods or services to be sold or delivered thereunder, the amount of the fee paid, the date of issuance, and the length of time the vendor permit shall be operative. It shall also show the vendor permit number and identifying description of any vehicle to be used in carrying on the business for which the vendor permit is issued. The city clerk shall keep a permanent record of all vendor permits issued.

E. Notwithstanding the above, the chief of police shall not be required to investigate an application from, nor shall he or she be required to issue a vendor permit to, a person requesting a vendor permit for sales from catering vehicles or pushcarts if the limit on the number of such vendor permits as described in section 5.08.020 has already been met. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.060 Vendor permit--Expiration and renewal.

A. All vendor permits issued under the provisions of this chapter shall expire on June 30th.

B. The holder of a vendor permit may renew the vendor permit for additional one-year terms by submitting a new application, together with any fees that may be required, and by complying with all other terms of this chapter, before the expiration of the vendor permit. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.070 Limitations on the issuance of business licenses and vendor permits for catering vehicles and pushcarts.

A. The total number of vendor permits issued pursuant to this chapter and the total number of business licenses issued pursuant to chapter 5.04 for sales from catering vehicles or pushcarts shall be limited to the total number of vendor permits and business licenses issued and outstanding for sales from catering vehicles and pushcarts as of September 1, 2009, and no such vendor permits or business licenses beyond that limit shall be issued and, except as otherwise provided in this section, no such vendor permits or business licenses shall be issued to any person other than that person to whom such vendor permit or business license was issued as of that date.

In the event a vendor permit issued pursuant to this chapter or a business license issued pursuant to chapter 5.04 for sales from catering vehicles or pushcarts is either revoked or is allowed by its holder to expire, such vendor permit and/or business license shall immediately become null and void and shall be forfeited and may not be renewed by such person. Such vendor permit and/or business license, however, shall be made available to any other person who first complies with all other applicable provisions of this chapter and of the city code.

B. In the event the holder of any vendor permit or business licenses issued for any activity conducted from a catering vehicle or from a pushcart, sells such catering vehicle or pushcart to a bona fide purchaser for value, such bona fide purchaser for value may continue to operate such catering vehicle or pushcart within the city provided such purchaser first complies with all of the provisions and requirements of this chapter, including having applied for and obtained all the required licenses and permits and having complied with all other applicable provisions of this chapter, and no such purchaser may conduct business within the city out of or from such catering vehicle or pushcart unless such person has first obtained all the licenses and permits required under this chapter. In the event of any such sale, the seller’s vendor permit shall immediately become null and void and such person shall no longer conduct business pursuant to this chapter. Within five (5) business days of any such sale or transfer, the seller of such catering vehicle or pushcart shall notify the city of such sale and shall provide any proof of such sale as may be required by the city. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.080 Vendor permit--Transfer prohibited.

No vendor permit issued under the provisions of this chapter shall be used or worn at any time by any person other than the person to whom it was issued. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.090 Operating restrictions.

No person permitted under the provisions of this chapter shall have an exclusive right to use or occupy any location in the public streets or in any public place in the city, nor shall any such permittee be permitted a stationary location or allowed to operate in any congested area where his or her operations might impede or inconvenience the public. For purposes of this section, the judgment of a police officer, exercised in good faith, shall be deemed conclusive as to whether an area is congested or the public impeded or inconvenienced.

Further, transient vendors and peddlers are prohibited from the following:

A. Selling from vehicles along and within three hundred feet (300’) of El Camino Real.

B. Selling foods items within three hundred feet (300’) of a permitted food vendor or business.

C. Selling within three hundred feet (300’) of a school or designated school crossing, one hour before, during and for one hour after, those hours when children are attending school. The three hundred foot (300’) distance shall be measured from the property line closest to the location where the sale is occurring.

D. Parking a vehicle within three hundred feet (300’) of a designated "special event."

E. Selling any items, or soliciting or canvassing in any part of the city thirty (30) minutes before sunrise or thirty (30) minutes after sunset. Sunrise and sunset times shall be determined using information from the U.S. Naval Observatory or another reliable published source. Catering vehicles are exempt from this restriction.

F. Selling any goods, wares, or other items of merchandise other than food, food items or beverages, whether heated or unheated or prepared or unprepared, from any vehicle at any time. (Ord. 487 §1(part), 2009: Ord. 480 §1(part), 2008: Ord. 341 §1(part), 1989).

5.08.100 Vendor identification card--Exhibition.

The police department shall issue to each permittee and to each employee of a permittee a vendor identification card, which shall be worn continuously by the permittee on the front of his or her hat or outer garment in such a way as to be conspicuous at all times while the permittee is conducting business in the city pursuant to a vendor permit. The vendor identification card shall bear the appropriate words, e.g., "permitted solicitor," "permitted peddler," or "permitted transient vendor," the period for which the vendor permit license is issued, and the number of the vendor permit, in letters and figures clearly discernible. (Ord. 487 §1(part), 2009: Ord. 480 §1(part), 2008: Ord. 341 §1(part), 1989).

5.08.105 Permits--Exhibition.

Each catering vehicle and each pushcart shall at all times display or have affixed to it, in a manner designated by the city and any other local regulatory agency, including the Monterey County health department, evidence of a current and valid vendor permit issued by the city, and evidence of a current and valid Monterey County health permit, when applicable. (Ord. 487 §1(part), 2009).

5.08.110 Registration by property owners.

The city clerk shall keep a register to be signed by the owner, occupant, or person legally in charge of any premises in the city who does not wish to be called upon by persons conducting the business of solicitor, peddler, or transient vendor. The address of the subject premises shall be shown on the register opposite the signature of the registrant. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.120 Entry upon registered premises unlawful.

It shall be unlawful for any person, while conducting the business of solicitor, peddler, or transient vendor, whether licensed or unlicensed, to enter upon any premises in the city where (a) the owner, occupant, or person legally in charge of said premises has signed the register referred to in section 5.08.110, or (b) said owner, occupant, or person in charge of the premises has posted, at the entry to the premises, or at the entry to the principal building on said premises, a sign bearing the words "No Solicitors," or words of similar import. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.130 Enforcement authority.

It shall be the duty of any city police officer to require any person seen soliciting, peddling, or engaging in the business of a transient vendor, who is not known to such officer to be duly licensed to do so, to produce his or her license, and to enforce the provisions of this chapter against any person found to be violating the same. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.140 Records.

The chief of police shall report to the city clerk all convictions for violations of this chapter and the city clerk shall record such violations on the permanent record of said license kept pursuant to the provisions of subsection 5.08.050D. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.150 Vendor permit--Revocation.

Vendor permits issued under the provisions of this chapter may be revoked by the city council, after notice and hearing, for any of the following causes:

A. Fraud, misrepresentation, or false statement contained in the application for license;

B. Fraud, misrepresentation, or false statement made by the permittee in the course of carrying on the business of solicitor, peddler, or transient vendor;

C. The violation of any provision of this chapter;

D. Conviction of any crime involving moral turpitude;

E. Conducting the business of solicitor, peddler, or transient vendor in such a manner as to constitute a breach of the peace or a menace to the health, safety, or general welfare of the public. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.160 Notice of hearing on revocation.

Notice of the hearing for revocation of a vendor permit pursuant to the provisions of section 5.08.150 shall be given in writing and shall set forth specifically the grounds for the proposed revocation and the time and place of the hearing. Said notice shall be mailed, postage prepaid, to the permittee at the address shown on the vendor permit application or at the last-known address of the permittee. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.170 Vendor permit--Appeal procedure.

Any person aggrieved by the action of the chief of police or the city clerk in denying a vendor permit applied for under the provisions of this chapter, or by a decision made with reference to the revocation of a vendor permit issued pursuant to the provisions of this chapter, shall have the right to appeal such action or decision to the city council. Such appeal shall be taken by filing with the city clerk, within ten (10) days after notice of the action or decision complained of has been mailed to such person’s address as shown on his or her vendor permit application form, to such person’s last-known address, a written statement setting forth the grounds for the appeal. The city clerk shall transmit the written statement to the city council and at its next regular meeting the council shall set a time and place for a hearing on the appeal. Notice of the time and place of such hearing shall be given to the appellant in the same manner as is herein provided for the mailing of notice of action or decision.

The decision of the city council on such appeal shall be final and binding on all parties concerned. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.180 Claims of exemption.

Any person claiming to be legally exempt from the regulations set forth in this chapter, or from the payment of a vendor permit fee as provided in section 5.08.040, shall cite to the city clerk the statute or other legal authority under which exemption is claimed and shall present to the city clerk proof of qualification for such exemption. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.190 Charitable solicitations.

Notwithstanding any other provision of this chapter, charitable organizations which have been approved as such by resolution of the city council shall be exempt from the requirements of this chapter including the payment of fees; provided, however, that before commencing any fund drive the organization shall file with the chief of police a list of its solicitors showing their names and addresses and the dates and areas of solicitation. To qualify for this exemption, a verified statement or a declaration under the penalty of perjury, signed by the president or other duly authorized officer of the organization, shall be filed with the city clerk. Said statement or declaration shall include the following facts, each of which shall be a condition precedent to the allowance of such exemption:

A. The organization must be nonprofit, as determined by applicable provisions of the Corporations Code of the state of California;

B. The organization must contain books on account which are subject to audit and open for inspection by the general public;

C. At least seventy-five percent (75%) of the proceeds of the solicitation must be applied to the charitable, philanthropic, nonprofit purposes of the organization; solicitation expenses shall not exceed twenty-five percent (25%) of the amount collected;

D. The organization shall not conduct more than one solicitation or fund drive per year within the city, which drive shall not exceed thirty (30) days in length.

The foregoing provisions of this section shall not apply to solicitations conducted through the United States mail or by telephone. (Ord. 487 §1(part), 2009: Ord. 341 §1(part), 1989).

5.08.200 Penalties.

A. Any person violating any provision of this chapter shall be guilty of a misdemeanor, punishable by a fine not to exceed one thousand dollars ($1,000.00) or imprisonment or not more than six (6) months in the county jail, or both such fine and imprisonment. Alternatively, in the discretion of the city attorney or his or her designee, any such violation may be prosecuted administratively pursuant to the city’s administrative remedies ordinance or pursuant to any other remedy available under the law, including permit revocation as provided in section 5.08.150. Each day a violation continues is deemed a separate offense.

B. Any person conducting business as a solicitor, peddler or transient vendor and any person operating any vehicle in violation of this chapter shall be guilty of a misdemeanor and the person, company or other entity that employs or contracts with him or her to sell the product or service shall be guilty of a misdemeanor if the person is conducting business or is operating such vehicle without first complying with the provisions of this chapter. Such violations may be prosecuted administratively pursuant to the city’s administrative remedies ordinance or pursuant to any other remedy available under the law, including vendor permit revocation as provided in section 5.08.150.

C. In the event any person is cited for violating this chapter, the product that is being sold, and any device or vehicle from which it is sold, shall be subject to confiscation and may be used as evidence. Any such device or vehicle so confiscated shall be returned upon the payment of any fines or penalties imposed or upon the resolution of any criminal or administrative proceeding.

D. Any vehicle operated contrary to the provisions of this chapter shall be and is hereby declared to be unlawful and a public nuisance and may be impounded by a police officer or by any other person authorized to enforce this chapter, in the course of an arrest of the operator for a violation of this chapter. The city attorney may, in addition to or in lieu of prosecuting a criminal action under this chapter, commence an action or proceeding for the abatement, removal or enjoinment thereof, in the manner provided by law, and may take such other steps and may apply to such court as may have jurisdiction to grant such relief as will abate or remove such establishment and restrain and enjoin any person from operating a vehicle contrary to this chapter. (Ord. 487 §1(part), 2009).

5.08.210 Severability.

If any provision, clause or paragraph of this chapter, or application thereof to any person or circumstance, be held invalid by a court of law, such invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provisions or application of the chapter and, therefore, the provisions of this chapter are declared to be severable. (Ord. 487 §1(part), 2009).