Chapter 5.15
TEMPORARY SALES
Sections:
Article I. Holiday Tree Lots
5.15.040 Sale by nonprofit and charitable organizations.
Article II. Peddlers, Solicitors, Street Vendors, and Temporary Merchants
5.15.060 Registration requirements for peddlers, solicitors and street vendors – Term.
5.15.070 Special standards for peddlers, solicitors and street vendors.
5.15.080 Appeals by peddlers and solicitors.
5.15.090 Requirements for temporary merchants – Term.
5.15.100 Exemptions for temporary merchants.
5.15.110 Special standards, application and fees for temporary merchants.
5.15.120 Licensing approval, authority and appeals of temporary merchants.
5.15.121 Temporary sales during the Old Fashioned Festival.
Cross-reference: Business licenses, see Chapter 5.05 NMC.
Article I. Holiday Tree Lots
5.15.010 Intent.
The intent of this chapter is to ensure the safety of persons who may be purchasing holiday trees at temporary lots, to ensure that adequate parking and access is provided for customers, and to ensure that the site is properly cleaned up after the trees have been removed. [Ord. 2426, 12-4-95. Code 2001 § 112.01.]
5.15.020 Applicability.
The provisions of this chapter apply to temporary merchants who occupy a temporary, fixed location and do business outside of an existing building. The provisions of this chapter do not apply to existing merchants selling holiday trees where the sale of the trees is an appurtenant or accessory use to the existing use. [Ord. 2426, 12-4-95. Code 2001 § 112.02.]
5.15.030 Requirements.
Applications for temporary holiday tree lots shall conform to the following requirements:
A. Application. An application for a temporary holiday tree lot shall be made to the planning and building department on a form provided by that department. The application shall include the following:
1. Fees, bonding, and insurance as noted below.
2. A scale site plan showing the location of connections to power or other utilities, the location of lights, a minimum of five off-street parking spaces for customer use (or provisions for off-street parking within 250 feet of the site), and a surfacing material for the lot which prevents the spread of dirt or mud on the public streets.
3. A statement signed by the property owner indicating that they have read and understand the provisions of this article and that they are fully liable for problems resulting from the operation of holiday tree lots on their property and that the owner is responsible for ensuring that the site is cleaned up after the sales are completed.
4. The site plan shall indicate that reasonable accommodations have been made to accommodate the handicapped.
B. Fees. A nonrefundable fee shall be paid at the time of application which covers the approximate cost of the processing of the application. This fee shall be set by resolution of the city council and shall begin at $50.00 at the time of the adoption of this article.
C. Cleanup Bond. A refundable cash bond in an amount to be set by resolution of the city council shall be submitted to ensure the cleanup of the site after the completion of the sale of the trees. The refundable bond will only be returned after evidence has been submitted by the applicant indicating that the site and surrounding area are clean. Cleanup shall also include the nearby public streets which may have been tracked with mud, dirt, or debris as a result of the holiday tree operation. If the site is not cleaned up by February 1st, or the applicant has not submitted adequate proof that the site is clean, the director is authorized to expend an amount necessary to clean up the site. If this exceeds $200.00, the city may bill the owner of the property for the remainder.
D. Insurance. The applicant shall submit proof of insurance indicating a minimum liability coverage in the amount of $500,000.
E. Time of Year. Permits will only be issued for lots which operate between the day after Thanksgiving through January 1st.
F. Conditions. The city may add reasonable conditions to the permit to ensure that the intent and provisions of this article are properly implemented. [Ord. 2426, 12-4-95. Code 2001 § 112.03.]
5.15.040 Sale by nonprofit and charitable organizations.
Sales by nonprofit and charitable organizations are permitted at locations which are appurtenant or accessory to existing, nontemporary commercial businesses. Sales by nonprofit and charitable organizations which are not appurtenant or accessory to existing, nontemporary commercial businesses shall comply in all respects with the provisions of this chapter. [Ord. 2426, 12-4-95. Code 2001 § 112.04.]
Penalty: See NMC 1.05.200.
Article II. Peddlers, Solicitors, Street Vendors, and Temporary Merchants
5.15.050 Definitions.
For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
“Peddler” means a person or persons traveling from place to place selling and delivering at the same time. The term “peddler” does not include a person who has been specifically invited to a customer’s residence or business location, or a nonprofit organization as organized under the Internal Revenue Service Code.
“Person” or “persons” means any natural person and any firm, proprietorship, partnership or corporation.
“Solicitor” means a person or persons who travel from place to place not carrying goods, but taking orders for future delivery, or soliciting for money or other things of value. The term “solicitor” does not include a person who has been specifically invited to a customer’s residence or business location, or a nonprofit organization as organized under the Internal Revenue Service Code.
“Street vendor” means a person or persons traveling on public streets, public sidewalks, public property, or private streets, and carrying, conveying or transporting such items as food, beverages, flowers, and balloons, offering and exposing the same for sale by hand or from a mobile-type device such as a push cart.
“Temporary merchant” means a person or persons occupying a temporary, fixed location, not within a permanent building, and selling or delivering from stock on hand, doing business in much the same manner as a permanent business. [Ord. 2546, 4-16-01. Code 2001 § 113.01.]
5.15.060 Registration requirements for peddlers, solicitors and street vendors – Term.
A. Registration. All peddlers, solicitors and street vendors shall register individually with the city prior to engaging in any activities defined in NMC 5.15.050. The registration shall be filed with the city on a form supplied by the city. Registrations will be accepted only during normal city business hours. Failure to provide complete and accurate information may result in a violation of this section and immediate revocation and/or denial of registration. Registrants must provide the following information:
1. Personal identification including date of birth, driver’s license number and/or other appropriate identification.
2. Copies of any state or county licenses which are required to operate or conduct activities proposed by the registrant.
3. a. A statement which confirms the registrant has no previous criminal history, including but not limited to a conviction or incarceration for a crime such as theft, burglary, robbery, fraud, deceit, or any crime of violence within the 10-year period prior to the date of registration.
b. For peddlers and solicitors whose method of sale is to travel door-to-door, the applicant must sign a form provided by the city that authorizes the city to conduct a criminal history background check for arrests, warrants, convictions, incarcerations and/or dispositions of charges that include but are not limited to theft, burglary, robbery, fraud, deceit, or any crime of violence within a 10-year period prior to the date of registration. The registrant will be deemed ineligible if the criminal history background check shows any of the above except for arrests and past warrants for arrests, which will be reviewed on an individual basis for determination of eligibility.
4. Previous sales history in the community within the 10-year period prior to the date of registration.
5. A description of the goods or services offered for sale.
B. Term of Registration. A peddler, solicitor or street vendor registration is valid for a period of six months. After six months, reregistration is required before further business can be conducted. [Ord. 2758 § 1, 3-4-13; Ord. 2546, 4-16-01. Code 2001 § 113.02.]
Penalty: See NMC 5.15.130.
5.15.070 Special standards for peddlers, solicitors and street vendors.
A. Peddlers and Solicitors. All peddlers and solicitors shall:
1. Limit their hours of operation to only those hours between 9:00 a.m. and 9:00 p.m.
2. Not enter uninvited into a private building, structure or room.
3. Not enter uninvited upon private property that is posted “no soliciting” or with a similar sign.
4. Within 30 seconds after beginning the conversation with a potential customer:
a. Provide identification of both the person and whom the person represents;
b. Explain the purpose of the person’s call;
c. Provide a description in commonly understood terms of the goods or services offered for sale; and
d. Inquire whether the person being solicited is interested in listening to a sales presentation and immediately discontinue the solicitation if the person being solicited gives a negative response.
5. During the course of the solicitation, state the total cost of the goods or services offered for sale and the number, timing and amount of installment payments if payment on an installment basis is available to the person being solicited.
B. Street Vendors. Sales operations shall be:
1. Limited to the period from one-half hour before dawn to one-half hour after dusk; and
2. Limited to not stopping adjacent to any lot in excess of 15 minutes in any one-hour period, except in C-3 zones, push carts may be located at specific locations on the public rights-of-way or sidewalk subject to approval by the city manager. [Ord. 2546, 4-16-01. Code 2001 § 113.03.]
5.15.080 Appeals by peddlers and solicitors.
Any registrant who does not meet the eligibility requirements provided in NMC 5.15.060 may appeal to the city manager. The city manager may accept or reject the appeal, waive any requirements imposed, or refer the matter to the city council. The applicant may further appeal the decision of the city manager to the city council. All appeals must be made by submitting a formal request to the city manager, together with a nonrefundable processing fee as established by city council resolution. [Ord. 2546, 4-16-01. Code 2001 § 113.04.]
5.15.090 Requirements for temporary merchants – Term.
A. Requirements. A temporary merchant who intends to operate a business for more than three consecutive days at any one location and who is not identified as exempt under the provisions of NMC 5.15.100 shall obtain a license from the city prior to engaging in any sales activities. Temporary merchants are authorized to set up only on properties within the C-2 community commercial or C-3 central business zoning districts. One temporary merchant license may serve as an umbrella license for several related organizations on one lot during the same license period.
B. Term.
1. A temporary merchant license is valid for up to 45 consecutive days for each location, after which it may be renewed, subject to a fee set by city council resolution.
2. A qualified temporary merchant who anticipates operating a business for more than 45 days at one location may apply for a temporary merchant license which has no expiration date, subject to a fee set by city council resolution. Under this provision, a seasonal business that is open year to year shall be allowed to open each year without relicensing, provided the location or physical size does not change.
C. Preexisting Temporary Merchants. Temporary merchants licensed prior to the effective date of the ordinance codified in this section and who have previously been through the process outlined in this section, or a similar regulatory review, shall be granted a license to operate at their current location without an application fee. Existing temporary merchants shall be subject to the licensing requirements of this section if the location or the size of the business changes. Seasonal businesses that are open year to year shall be allowed to open each year without relicensing, provided the location or physical size does not change. [Ord. 2546, 4-16-01. Code 2001 § 113.05.]
Penalty: See NMC 5.15.130.
5.15.100 Exemptions for temporary merchants.
The following temporary merchants do not require a license and are exempt from the application requirements contained within NMC 5.15.110(B), but must meet the standards under NMC 5.15.110(A). Residential garage and estate sales are regulated under NMC 15.415.060, home occupation standards.
A. Any temporary merchant who is in operation for three or fewer consecutive days at the same location.
B. A nonprofit organization selling goods, wares or merchandise, whose business is in operation on private property during one period not exceeding 45 consecutive days in any three-month period.
C. Sales associated with events sponsored through city council or city manager action such as the Old Fashioned Festival, city auction, bike fair, and Turkey Carnival.
D. Temporary construction offices in conjunction with the initial development of residential, commercial or industrial property. [Ord. 2546, 4-16-01. Code 2001 § 113.06.]
5.15.110 Special standards, application and fees for temporary merchants.
A. Standards.
1. The activities of the temporary merchant shall not impair or impede the proper flow of pedestrian or vehicular traffic on public or private property.
2. The activities of the temporary merchant shall not unduly restrict parking spaces on public or private property. Any parking spaces which are customarily in use during normal working hours shall not be used as a location for a temporary merchant.
3. Approved parking spaces shall be provided as is deemed appropriate by the city. Required parking spaces shall be located within 100 feet of the temporary merchant. In no case shall there be less than two available parking spaces per temporary merchant. Required parking spaces for temporary merchants are used on a temporary basis and they may be graveled, asphalt or concrete surfaces. In all other respects, parking areas shall meet the requirements of NMC 15.440.010 through 15.440.080.
4. Only one temporary merchant license will be permitted on any individual lot or development site at any given time, unless the proposal receives Type III conditional use permit approval. If the parcel on which the sales location is sited is five acres or greater in size, this requirement does not apply. Type III conditional use permit criteria are identified in NMC 15.225.060.
5. Licenses for a temporary merchant shall be displayed by the temporary merchant in a visible location and shown to any customer or city official on request.
6. The proposal shall comply with NMC 15.415.020 through 15.415.040 dealing with height restrictions and public access; and Chapter 15.410 NMC dealing with setbacks, coverage, vision clearance, and yard requirements. No storage, display or sale may take place inside the required front yard setback area.
7. A temporary merchant shall comply with all signage requirements of Chapter 15.435 NMC.
8. A temporary merchant shall comply with all applicable sanitation codes, including waste disposal. If self-contained facilities such as porta-potties are proposed, they must also meet all applicable city and state sanitation requirements.
9. A temporary merchant operating in the C‑3 central business district, including temporary merchants operating their businesses under a merchant’s umbrella license, shall not have a drive-up service window as part of its operation.
B. Application. Application for licensing shall be filed with the city together with the nonrefundable license fee. The application shall be on a form supplied by the city. Applications will be accepted only during normal city business hours. The applicant shall provide the following information:
1. A site map of the location of temporary merchant activities.
2. Personal identification including date of birth, driver’s license number and/or other appropriate identification.
3. Copies of any state or county licenses which are also required to operate or conduct activities proposed by the applicant.
4. The name of a local agent to receive complaints against the business.
5. If the license is acting as an umbrella license, identify one single individual or organization to serve as the primary contact agent. The primary contact agent shall be responsible for and shall act on behalf of those merchants on the site who are operating under the umbrella license during the license period.
6. If located on private property, the temporary merchant shall obtain a signed, written consent from the owner of the property which authorizes the merchant to conduct business from the property.
7. If located on public property, the temporary merchant shall obtain a signed, written consent authorized by the city council or other public agency with authority to allow the merchant to conduct business from the publicly owned property. The city council is under no obligation to approve any request for such use.
C. Fees. All fees shall be charged as set by city council resolution. Fees are nonrefundable. [Ord. 2611, 11-15-04; Ord. 2546, 4-16-01. Code 2001 § 113.07.]
5.15.120 Licensing approval, authority and appeals of temporary merchants.
A. The city shall have the authority to approve or deny any application for a license to be issued under NMC 5.15.110. A license shall not be issued if the applicant has provided false information on the application form or has a current arrest warrant for any crime or previous criminal history of arrests, warrants, convictions, incarcerations and/or dispositions of charges that include but are not limited to theft, burglary, robbery, fraud, deceit, or any crime of violence within a 10-year period prior to the date of registration, with the exception that any arrests and past warrants for arrests will be reviewed on an individual basis for determination of eligibility.
B. The application will be forwarded to the chief of police or designee. If the application is returned by the chief of police or designee endorsed “Unsatisfactory,” the city will notify the applicant that the application has been disapproved and the reason therefor.
C. Any applicant for a license which is denied approval may appeal the decision to the city manager. The city manager may accept or reject the decision of city staff, waive any requirements imposed, or refer the matter to the city council. The applicant may appeal the decision of the city manager to the city council. All appeals must be made by submitting a formal request of an appeal to the city manager, together with a nonrefundable processing fee as established by city council resolution. [Ord. 2758 § 2, 3-4-13; Ord. 2546, 4-16-01. Code 2001 § 113.08.]
5.15.121 Temporary sales during the Old Fashioned Festival.
During the Old Fashioned Festival, as proclaimed by the mayor and city council, an Old Fashioned Festival zone shall be in effect. The perimeter of the festival zone shall start on Blaine Street at Ninth Street, and go north to Third Street, west to Main Street, north to Second Street, east to Blaine Street, north to Sherman Street, east to School Street, south to First Street, east to Meridian Street, south to Ninth Street, and west to Blaine Street, and specifically shall include properties abutting either side of the above perimeter streets. During the Old Fashioned Festival, no short-term temporary merchant or street vendor shall operate within the festival zone, except those operating under authority of the official Old Fashioned Festival committee. Vendors shall present identification necessary to show this authority. Temporary merchants or street vendors who operated a business within the zone for at least 90 days prior to the commencement of Old Fashioned Festival are exempt from this section to the extent that such business continues operating as it was prior to the Old Fashioned Festival. Temporary merchants operating on the premises of permanent merchants within the zone under a written authorization from the permanent merchant are also exempt from this section. [Ord. 2818 § 1, 6-19-17; Ord. 2739 § 1, 6-6-11; Ord. 2717, 6-15-09. Code 2001 § 113.20. Formerly 15.370.010.]
5.15.130 Penalty.
Any person who engages in activities within the corporate city limits without having first registered as provided in NMC 5.15.060 or without having first applied for and obtained the license herein provided for in NMC 5.15.110 or who violates any other of the provisions of this article shall have committed a city Class 2 infraction and shall be processed in accordance with the procedure set forth in the uniform civil infraction procedure ordinance, Chapter 2.30 NMC. Every day of a continuing violation shall be deemed a separate offense for the purposes of these penalties. [Ord. 2546, 4-16-01. Code 2001 § 113.99.]