Chapter 5.35
COMMERCIAL SOLICITATIONS AND PEDDLERS

Sections:

5.35.010    Citation of chapter.

5.35.020    Findings of city council.

5.35.030    Definitions.

5.35.040    Regulations separate from business tax ordinance.

5.35.050    Permit required.

5.35.060    Filing of application.

5.35.070    Fingerprinting and photographing.

5.35.080    Information on statutes regulating home solicitation contracts.

5.35.090    Investigation of background of applicant – Issuance and denial of permit.

5.35.100    Insurance required.

5.35.110    Issuance of permit and identification card.

5.35.120    Permittee must keep identification card in possession.

5.35.130    Effective period of permit and identification card – Renewals.

5.35.140    Revocation and suspension of permits.

5.35.150    Appeals.

5.35.160    Hours restriction.

5.35.170    Restriction on soliciting or peddling on posted property.

5.35.180    Consent to solicitation – Burden of proof.

5.35.010 Citation of chapter.

This chapter may be referred to and cited as the “commercial solicitors and peddlers ordinance” of the city of Fremont. (Ord. 961 § 1, 9-25-73. 1990 Code § 5-4100.)

5.35.020 Findings of city council.

(a)    Power and General Purpose. This chapter is enacted by the city council pursuant to California Constitution Article XI, Section 7, granting the power of a city to make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with the general laws. This chapter is not enacted pursuant to the power to license or tax businesses for revenue purposes. Any fee or charge authorized by this chapter is for the sole purpose of defraying the cost and expense of investigation of applicants for permits, processing of applications, issuance of permits, and regulation of the activities of the above-mentioned businesses, professions, and trades.

(b)    Specific Intent and Purposes. In enacting this chapter, including amendments thereto, the city council makes the following findings:

(1)    That a substantial amount of business in the city is conducted by peddlers of goods and by solicitors who take orders by telephone or by going from door to door or place to place.

(2)    That the activities of such solicitors and peddlers, due to methods by which they are often conducted, pose and will continue to pose substantial problems contrary to the public health, safety and general welfare, including interference with the privacy and security of operators of businesses and occupants of residences, and that such activities are often undertaken without disclosure of candid or honest information about the goods or services being ordered or purchased and the cost, price and other terms and conditions of the order or sale.

(3)    That the existence of the foregoing problems necessitates the adoption of an adequate system of regulation of the above-described activities. (Ord. 961 § 1, 9-25-73. 1990 Code § 5-4101.)

5.35.030 Definitions.

For the purposes of this chapter, unless it is plainly evident from the context that a different meaning is intended, certain terms used herein are defined as follows:

(a)    “Chief of police” means the chief of police of the city or his/her designee charged with the administration of this chapter, subject to the administrative direction of the city manager.

(b)    “Collector” means the general services and finance director or other city officer charged with the administration of the “business tax ordinance” of the city (Chapter 5.05).

(c)    “Peddler” means any hawker, vendor or other person who, in connection with a business, profession, trade or occupation, goes from house to house or from place to place or in or along the streets, within the city, selling and making immediate delivery, or offering for sale and immediate delivery, any goods, wares, merchandise, or anything of value, in his/her possession, to persons other than manufacturers, jobbers, or retailers in such commodities. A person who sells or offers to sell such items to one or more persons (other than manufacturers, wholesalers, jobbers, or retailers in such items) by appointment at the residences or places of business of the latter shall be deemed to be going from house to house or from place to place for purposes of this subsection. “Peddler” does not include any person who is solely engaged in activities for which a permit or promoter’s permit to engage in solicitation of contributions for charitable purposes is required pursuant to the charitable solicitation ordinance of the city.

(d)    “Solicitor” means any person who, in connection with a business, profession, trade, or occupation, engages in soliciting, canvassing, or taking orders from house to house or from place to place on, in, or along the streets, or by telephone or by any other means of communication for any goods, wares, or merchandise, or any article to be delivered in the future, or for services to be performed in the future, or making, manufacturing or repairing any article whatsoever for future delivery, or for subscriptions to periodicals or tickets of admission to entertainments or membership in any clubs. A person who solicits or takes orders for such goods, wares, merchandise, articles, services, or making, manufacturing or repairing, or subscriptions, tickets, or memberships from one or more persons (other than manufacturers, wholesalers, jobbers, or retailers in such items) by appointment at the residences or place of business of the latter shall be deemed to be going from house to house or from place to place for purposes of this subsection. “Solicitor” does not include (1) any person who takes orders from manufacturers, wholesalers, jobbers, or retailers for sale of commodities for purpose of resale or use in connection with the businesses of such persons; (2) any person who is solely engaged in activities for which a permit or promoter’s permit to engage in solicitation of contributions for charitable purposes is required pursuant to the charitable solicitation ordinance of the city. (Ord. 961 § 1, 9-25-73; amended during 2012 reformat. 1990 Code § 5-4102.)

5.35.040 Regulations separate from business tax ordinance.

No person shall be relieved of the obligation of obtaining any permit or complying with any other requirement of this chapter by payment of a business tax pursuant to Chapter 5.05. (Ord. 961 § 1, 9-25-73. 1990 Code § 5-4103.)

5.35.050 Permit required.

No person shall act as a solicitor or peddler unless he/she shall have been issued a valid permit to do so. (Ord. 961 § 1, 9-25-73; amended during 2012 reformat. 1990 Code § 5-4104.)

5.35.060 Filing of application.

Every person who desires to act as a peddler or solicitor shall file an application with the chief of police and pay a nonrefundable application fee in such amount as may be established by the city council by resolution. He/she shall provide the following information:

(a)    His/her name, date of birth, and a description of him/her.

(b)    His/her Social Security number, driver’s license number, or, if he/she has been issued an identification card by the California Department of Motor Vehicles pursuant to Cal. Veh. Code §§ 13000 et seq., the identification card number of such card.

(c)    His/her local and permanent address and telephone number.

(d)    A description of the nature of his/her business and the goods or services to be peddled or solicited.

(e)    The name, address, and telephone number of his/her employer or the business entity which he/she proposes to represent as solicitor or peddler, with credentials establishing the exact relationship between the applicant and such employer or business entity.

(f)    The name, address, and telephone number of the nearest local or state manager, if any, or his/her employer or the business entity he/she proposes to represent.

(g)    If he/she proposes to solicit for the sale of goods, the place from which such goods will be shipped or delivered, and the method of delivery.

(h)    If he/she proposes to act as a solicitor, the method of solicitation, whether house to house or place to place, person to person, by telephone, by newspaper advertisement, or otherwise.

(i)    A statement of convictions of any felony, of any misdemeanor involving a local ordinance licensing, regulating, or taxing any business, or of any misdemeanor involving moral turpitude, including but not limited to fraud or theft. Dates of convictions and names of the courts involved shall be listed.

(j)    A statement of whether the applicant has ever been convicted of a misdemeanor or been subject to a court injunction arising out of his/her making or causing or directing to be made any untrue or misleading statement or has committed any other unlawful act in violation of any provision of Cal. Bus. & Prof. Code Division 7, Part 3, Chapter 1 (commencing with Section 17500). If the statement indicates the existence of any such conviction or court order, the applicant shall specify the date on which such event occurred, and the court involved. (Ord. 961 § 1, 9-25-73; amended during 2012 reformat. 1990 Code § 5-4105.)

5.35.070 Fingerprinting and photographing.

The chief of police shall cause each applicant to be fingerprinted and photographed prior to the issuance of any permit to solicit or peddle. (Ord. 961 § 1, 9-25-73. 1990 Code § 5-4106.)

5.35.080 Information on statutes regulating home solicitation contracts.

The chief of police shall furnish each applicant with a copy of Cal. Bus. & Prof. Code § 17500.3. Each applicant shall, prior to the issuance of a permit hereunder, sign a statement that he/she has read and understands said section. (Ord. 961 § 1, 9-25-73; amended during 2012 reformat. 1990 Code § 5-4107.)

5.35.090 Investigation of background of applicant – Issuance and denial of permit.

Within a reasonable time after the filing of the application, the chief of police shall investigate the moral character and business responsibility of the applicant and shall verify the matters set forth in the application. He/she shall approve the application and issue the applicant a permit to solicit or peddle upon completion of the investigation unless he/she shall find that one or more of the following is true:

(a)    The applicant has knowingly made one or more false statements of fact as to any matter which is required to be revealed in the application;

(b)    The applicant has been convicted of a felony;

(c)    The applicant has been convicted of more than one misdemeanor involving the violation of a local ordinance licensing, regulating, or taxing any business;

(d)    The applicant has been convicted of a misdemeanor involving moral turpitude, including but not limited to fraud or theft;

(e)    The applicant has been previously enjoined by a court of competent jurisdiction from making untrue or misleading statements or from committing unlawful acts in violation of Cal. Bus. & Prof. Code Division 7, Part 3, Chapter 1 (commencing with Section 17500);

(f)    The investigation reveals that the applicant has committed one or more acts involving dishonesty, fraud, or deceit with the intent to substantially benefit himself or another, or substantially injure another.

If the chief of police finds that one or more of the foregoing is true, he/she may deny the permit if he/she determines that the false statement which the applicant has made on his/her application, or that any statement or statements or act or acts or omission or omissions for which the applicant has been responsible, including acts or omissions resulting in criminal convictions, establishes a substantial likelihood that the applicant would not conduct his/her business operations in a fair and honest manner, or would not respect the privacy or security of persons or property. In making such determination, the chief of police shall evaluate the nature, significance, and date or dates of occurrence of any such unlawful or improper acts or omissions. If, as a result of his/her investigation, the chief of police determines that under the circumstances there would be no substantial likelihood that the applicant would conduct his/her business operations in an unfair or dishonest manner, or in such manner as would jeopardize the privacy or security of the occupants of real property within the city, he/she shall issue the permit. (Ord. 961 § 1, 9-25-73; amended during 2012 reformat. 1990 Code § 5-4108.)

5.35.100 Insurance required.

Any peddler who transacts business with customers within a public right-of-way or upon other real property of the city shall, at the peddler’s sole cost and expense, and during the entire term of the permit or any renewal thereof, obtain and maintain all of the following minimum insurance requirements:

(a)    Comprehensive general liability or commercial general liability coverage insurance with a minimum limit of $1,000,000 combined single limit for bodily injury and property damage and including at least the following coverages:

(1)    General or premises liability;

(2)    Products liability.

(b)    Such policies shall be endorsed to:

(1)    Name the city as additional insured under the liability policy;

(2)    State that the insurance is primary to any other insurance available to the city with respect to any claim arising out of the peddler’s business;

(3)    State all policies will not be suspended, voided, canceled, reduced in coverage or limited or allowed to expire without renewal, until after 30 days’ prior written notice by certified mail (return receipt requested) has been given to the risk manager of the city.

The city’s certificate of insurance form or other form satisfactory to the city shall be completed by the insurance carrier. Before any approved permit is issued, the applicant shall agree to hold the city, its employees and its agents harmless from any liability arising from the use of said permit, and the risk manager shall make a determination that the applicant has the required insurance coverage.

(c)    This section applies not only to peddlers physically located and transacting business within a public right-of-way, but for purposes of this section, a peddler shall be deemed to be transacting business within a public right-of-way if the location from which the business is conducted, although not within the public right-of-way, is so placed or advertised as to directly attract occupants of motor vehicles to stop or park within the public right-of-way and an occupant of such vehicle is either serviced by the peddler while the occupant remains in the vehicle or the occupant leaves the vehicle in order to receive service from the peddler. This regulation shall apply whether or not the motor vehicle stops within an area authorized for stopping or parking. (Ord. 1647 § 2, 1-22-85; Ord. 1783 § 3, 6-23-87. 1990 Code § 5-4108.2.)

5.35.110 Issuance of permit and identification card.

Upon approval of the application, the chief of police shall issue the applicant a permit to solicit or peddle and shall issue him/her an identification card, which shall contain the name, address, and telephone number of the permittee and his/her employer or the business entity he/she represents, and the expiration date of the permit. The permittee shall present the identification card to the collector, who shall stamp the card with information as to whether the applicable business tax has been paid pursuant to the business tax ordinance. No permit or identification card shall be transferable. (Ord. 961 § 1, 9-25-73; amended during 2012 reformat. 1990 Code § 5-4109.)

5.35.120 Permittee must keep identification card in possession.

Every person who acts as a peddler or solicitor shall keep the identification card in his/her possession at all times while engaging in such business, profession, trade, or occupation and shall display such card upon the request of any person with whom he/she transacts or attempts to transact business, or upon the request of any peace officer or any representative of the city authorized to enforce this chapter. (Ord. 961 § 1, 9-25-73; amended during 2012 reformat. 1990 Code § 5-4110.)

5.35.130 Effective period of permit and identification card – Renewals.

Each permit and identification card shall be valid for a period of one year from the date of issuance thereof, unless revoked or suspended pursuant to Section 5.35.140. Permits and identification cards may be renewed for one-year periods upon payment of a renewal fee in such amount as may be established by the city council by resolution; provided, however, that the procedure for renewals of permits and identification cards shall be the same as required for original applications, except that fingerprinting and photographing of applicants shall not be required for renewals if deemed to be unnecessary by the chief of police. The chief of police shall issue the renewal unless he/she finds that grounds for denial exist, which grounds shall be as set forth in Section 5.35.090(a), (b), (c), and (d). (Ord. 961 § 1, 9-25-73; amended during 2012 reformat. 1990 Code § 5-4111.)

5.35.140 Revocation and suspension of permits.

If the chief of police obtains information which gives him/her reasonable grounds to believe that the permittee, while his/her permit to solicit or peddle has been in effect, (a) has committed or been responsible for any act or omission, or has been convicted of any offense which would constitute grounds for denial of a permit, or (b) has committed any act or has omitted to act in violation of Section 5.35.100, 5.35.120, 5.35.160, or 5.35.170, or (c) has been enjoined by a court of competent jurisdiction from making untrue or misleading statements or from committing unlawful acts in violation of Cal. Bus. & Prof. Code Division 7, Part 3, Chapter 1 (commencing with Section 17500), or (d) has done one or more acts in connection with soliciting or peddling pursuant to his/her permit involving dishonesty, fraud, or deceit with the intent to substantially benefit himself, or substantially injure another, he/she shall temporarily suspend the permit and shall immediately notify the permittee in writing of such suspension, the grounds therefor, and the date, time, and place at which a hearing shall be held by the chief of police on whether the permit should be revoked. The notice shall be transmitted by first-class mail to the address or addresses of the permittee as stated in the application. The hearing shall be held not less than 10 nor more than 20 days from the date of the notice, unless the permittee consents in writing to the holding of the hearing on a different date.

All hearings under this section shall be held before the chief of police, who shall hear all facts and testimony he/she deems pertinent. He/she shall not be limited by the technical rules of evidence.

If the chief of police finds, after the hearing has been concluded, that the permittee in fact has committed or done any act, or has been responsible for any omission, or has been convicted or been enjoined as described in subsection (a), (b), (c) or (d) of the first paragraph of this section, he/she shall revoke the permit. Otherwise, he/she shall terminate the suspension, and the permit shall be reinstated and continue to be valid until its date of termination, subject to the suspension and revocation provisions of this section. Upon the making of findings, the chief of police shall promptly notify the permittee in the same manner required for notice of hearing. (Ord. 961 § 1, 9-25-73; Ord. 1647 § 3, 1-22-85; amended during 2012 reformat. 1990 Code § 5-4112.)

5.35.150 Appeals.

An applicant or permittee who is denied an original permit or a renewal thereof by the chief of police, or whose permit has been revoked after hearing by the chief of police, may appeal such denial or revocation to the city manager by filing a notice of appeal with the city clerk within 10 days from the date of written notice of the action of the chief of police. The appeal hearing shall be held not less than 10 nor more than 20 days from the date of the filing of notice of appeal, unless the applicant or permittee and the city manager agree to the holding of the hearing on a different date. Upon the making of findings, the city manager shall promptly notify the permittee in the same manner required for notice of hearing in Section 5.35.140. (Ord. 961 § 1, 9-25-73. 1990 Code § 5-4113.)

5.35.160 Hours restriction.

Except as provided in Section 5.35.180, no person shall act as a solicitor or peddler between the hours of 9:00 p.m. on one day and 5:00 a.m. of the following day. (Ord. 961 § 1, 9-25-73; Ord. 1647 § 4, 1-22-85. 1990 Code § 5-4114.)

5.35.170 Restriction on soliciting or peddling on posted property.

Except as provided in Section 5.35.180, no person shall act as a solicitor or peddler on any premises or in any building where there is posted on or adjacent to the principal entrance to such premises or building a sign with letters not less than one inch in height containing the wording “No Solicitors,” “No Solicitors or Peddlers,” “Solicitors Prohibited,” or any substantially similar wording which would reasonably warn the public that soliciting or peddling is not desired at such premises or building.

This section shall not be applicable to solicitation by telephone or other means of communication not involving personal physical entry on real property by a solicitor. (Ord. 961 § 1, 9-25-73. 1990 Code § 5-4115.)

5.35.180 Consent to solicitation – Burden of proof.

It shall not be unlawful, nor shall it be a violation of Section 5.35.160 or 5.35.170, for any person to solicit or peddle at any office, dwelling unit, or portion of any premises or building where an occupant of such office, dwelling unit, or portion has previously given the solicitor or peddler an appointment to solicit or peddle thereat. Consent to solicit or peddle granted by an occupant of a particular office, dwelling unit, or separate portion of a building shall not be deemed to confer consent to solicit or peddle at any other office, dwelling unit, or portion of the same building.

In any prosecution or administrative hearing involving an alleged violation of Section 5.35.160 or 5.35.170, the burden of proof as to the existence of consent to solicit or peddle shall be upon the solicitor or peddler. (Ord. 961 § 1, 9-25-73. 1990 Code § 5-4116.)