Number
071617
Version
SUBSTITUTE 1
Reference
Sponsor
ALD. BOHL
Title
A substitute ordinance relating to establishing standards for the issuance of warning letters to applicants for direct seller licenses and reordering and revising certain regulations for the purposes of clarifying language and eliminating obsolete provisions.
Sections
95-1 rc
Analysis
This ordinance establishes standards for the issuance by the city clerk of warning letters to new and renewal applicants for direct seller licenses, in lieu of forwarding applications to the licensing committee for hearings on whether the applications should be recommended for approval or denial to the common council. In addition, this ordinance reorders and revises certain direct seller regulations for the purposes of clarifying language and eliminating obsolete provisions.
Body
The Mayor and Common Council of the City of Milwaukee do ordain as follows:
Part 1. Section 95-1 of the code is repealed and recreated to read:
95-1. Direct Sellers.
1. DEFINITIONS. In this section:
a. "Charitable organization" means any benevolent, philanthropic or patriotic organization, or one purporting to be such.
b. "Direct seller" means any person who sells goods or takes sales orders for the later delivery of goods on any public way or other public premises, and includes peddlers and solicitors. "Direct seller" does not include a transient merchant; a permanent merchant conducting a temporary sidewalk sale; or a food peddler, who is regulated under ch. 74.
c. "Goods" means personal property of any kind and includes goods provided incidental to services offered or sold.
d. "Other public premises" means any premises controlled by the city, county or state or any board or other instrumentality or agency thereof and dedicated for use by the public generally and includes public buildings and premises appurtenant thereto.
e. "Permanent merchant" means a direct seller who, for at least one year prior to the consideration of the application of this section to the merchant, has continuously operated an established place of business in this city, or has continuously resided in this city and now does business from his or her residence.
f. "Person" means a natural person.
g. "Public way" means any public thoroughfare dedicated, condemned, acquired or created in accordance with the statutes for street, alley or pedestrian-way purposes.
h. "Pushcart" means any apparatus on wheels whose primary manufacture, design and purpose is for vending.
i. "Street festival" means any celebration taking place on any public way or other public premises, exclusive of parades, processions, bicycle or foot races, and permitted by the city as a special event.
j. "Transient merchant" means any person who engages in the business of purchasing or selling of merchandise at any fixed place in the city temporarily who does not intend to become and does not become a permanent merchant.
2. LICENSE REQUIRED. No direct seller may engage in direct sales on any public way or other public premises in this city without having first obtained a license under this section.
a. Exemptions. The following shall be exempt from all provisions of this section except sub. 7-a-15:
a-1. Any person delivering newspapers, fuel, dairy products or bakery goods to regular customers on established routes.
a-2. Any person selling goods at wholesale to dealers in such goods.
a-3. Any person selling agricultural products which the person has grown.
a-4. Any permanent merchant or employe thereof who takes orders away from the established place of business for goods regularly offered for sale by such merchants within Milwaukee county and who delivers such goods in their regular course of business.
a-5. Any person selling or offering for sale a service unconnected with the sale or offering for sale of goods.
a-6. Any person holding a sale required by statute, or by order of any court, and any person conducting a bona fide auction sale pursuant to law.
a-7. Any person who claims to be a permanent merchant, but against whom complaint has been made to the city clerk that such person is a transient merchant; provided that there is submitted to the city clerk proof that such person has leased for at least one year, or purchased the premises from which he is conducting business, or proof that such person has conducted such business in this city for at least one year prior to the date the complaint was made.
a-8. A food peddler licensed under ch. 74.
a-9. A home improvements salesman licensed under s. 95-14-3.
a-10. Any person engaged in political or fund raising activities for a campaign committee or political organization duly registered with a federal, state, county or city election board.
a-11. Any person who sells goods or takes orders for the later delivery of goods, including peddlers and solicitors, within the barricaded area of any city-permitted street festival, provided the person is registered and operating with the permission of the respective festival organization.
a-12. Any person reselling tickets to entertainment or sporting events at or below face value.
b. Partial Exemptions, Charitable Organizations. b-1. An employe, officer or agent of a charitable organization who engages in direct sales for or on behalf of the organization shall be subject to the provisions of sub. 7-a, b and d and sub. 9 and shall be exempt from all other provisions of this section, provided that all of the following requirements are met:
b-1-a. There is submitted to the city clerk proof that the charitable organization is registered under s. 440.42, Wis. Stats., or proof that the charitable organization is exempt from registration as a charitable organization under this statute.
b-1-b. The direct sales are performed by persons who are unpaid for their services and who remit all proceeds from sales to the organization to be used for the purposes of the organization.
b-2. Any employe, officer or agent of a charitable organization who engages in direct sales for or on behalf of said organization and who does not meet all the requirements in subd. 1 shall be subject to all provisions of this section in the same manner as any other direct seller.
3. APPLICATION. a. After a special privilege permit has been granted, where required, by common council resolution pursuant to s. 245-12, application for a direct seller license shall be filed with the city clerk on a form provided therefore. The application shall require the following information:
a-1. Name, permanent address and telephone number, and temporary address, if any.
a-2. Age, height, weight, color of hair and eyes.
a-3. Name, address and telephone number of the person, firm, association or corporation that the direct seller represents or is employed by, or whose merchandise is being sold.
a-4. Temporary address and telephone number from which business will be conducted, if any.
a-5. Nature of business to be conducted, a brief description of the goods offered, and any services offered.
a-6. Size and description of the pushcart, stand, table, container or other stationary apparatus from which items will be sold. A photograph or accurate graphic representation shall be included for pushcarts.
a-7. Proof that the applicant holds a current state seller's permit, which includes a state sales tax number.
a-8. Proposed method of delivery of goods, if applicable.
a-9. Make, model and license number of any vehicle to be used by applicant in the conduct of his business.
a-10. Last cities, villages, towns, not to exceed 3 places, where the applicant conducted similar business.
a-11. Place where applicant can be contacted for at least 7 days after leaving this city.
a-12. Statement as to whether applicant has been convicted of any crime or ordinance violation, other than traffic offenses within the last 5 years, the circumstances of which substantially relate to the activity for which a license is sought, the nature of the offense, and the place of conviction.
a-13. Statement signed by the applicant appointing the city clerk his or her agent to accept service of process in any civil action brought against the applicant arising out of any sale or service performed by the applicant in connection with the direct sales activities of the applicant.
b. Identification. Each applicant shall present to the city clerk for examination a driver's license or some other proof of identity as may be reasonably required. Each applicant for a license issued under this section shall be at least 18 years of age at the time of application.
c. Photograph of Applicant. Each applicant for a license shall file with the application 2 recent photographs to the city clerk suitable for inclusion on the applicant's official license. One photograph shall be attached to the license when issued, and the other photograph shall be filed with the application with the city clerk.
d. Fingerprinting. Each applicant for a direct seller license shall be fingerprinted by the police department. The requirement that an applicant be fingerprinted shall not apply to a person already licensed by the city when that person is renewing the license. If a set of fingerprints is on file with the police department, an additional set shall not be required unless expressly requested by the police department for purposes of verification.
4. FEE. a. All applications shall be accompanied by the fee specified in s. 81-41.
b. Exemption. Any veteran of the armed forces in the United States in any way who has a 25% disability or more, has a cardiac disability recognized by the United States veterans administration, and any person disabled to the extent of the loss of one arm or one leg or more, or who has been declared blind as defined under Title 16 of the Social Security Act, upon presenting proof to the city clerk that he or she satisfies these conditions, shall be exempted from payment of any fee under this section. A license issued to such veteran shall be valid for the period that he or she is engaged in this business.
5. ISSUANCE. a. Applications shall be referred to the chief of police who shall cause an investigation to be made and report his or her findings to the city clerk. If the chief of police files no written report summarizing the arrest and convictions of the applicant which could form the basis for denial of the application, the city clerk shall issue the license.
a-1. Any license issued under this section shall be carried by the direct seller while engaged in employment and produced upon the request of any customer or police officer.
a-2. The license is for the use of the licensee only and is not transferable.
b. If the chief of police files a written report summarizing the arrest and convictions of the applicant which could form the basis for denial of the application, except as provided in par. c, the application shall be forwarded to the licensing committee for its recommendation as to whether or not a license should be issued. The committee may make a recommendation immediately following the hearing or at a later date. Written notice of the committee's decision will be provided if the decision is made at a later date or if the applicant was not present or represented. The committee shall forward its recommendation in writing to the common council for vote at the next meeting at which such matter will be considered.
c. If the chief of police files a written report summarizing the arrest and convictions of the applicant which could form the basis for denial of the application, the city clerk shall, in lieu of forwarding the application to the licensing committee for a hearing under par. b, issue the license with a warning letter to the applicant whenever all of the following are true:
c-1. The applicant has no more than one pending charge for a misdemeanor offense and the pending charge is related to a nonviolent offense.
c-2. The applicant has not within 12 months of the date of application been convicted of any misdemeanor offense related to a violent offense.
c-3. The applicant has not within 12 months of the date of application been convicted of more than one misdemeanor offense or municipal code violation.
c-4. The applicant has not within 3 years of the date of application been convicted of more than 3 misdemeanor offenses and municipal ordinance violations.
c-5. The applicant has not within 5 years of the date of application been convicted of more than one felony offense and has not within 5 years of the date of application served probation or been imprisoned for any felony conviction.
c-6. The applicant has not within 10 years of the date of application been convicted of a second or subsequent offense related to operating a motor vehicle while intoxicated.
d. In determining the eligibility of the applicant to be issued a warning letter under par. c, the city clerk shall not consider either of the following:
d-1. Any pending charges or convictions of any misdemeanor or felony offenses related to failure to pay child support.
d-2. Any one conviction of a misdemeanor offense or municipal ordinance violation related to retail theft for which the applicant was not imprisoned.
e. In determining the number of pending charges under par. c-1 and convictions under par. c-2 to 6, any pending charges or convictions arising out of the same incident or occurrence shall be counted as one pending charge or conviction.
f. Notwithstanding the provisions of pars. c and d, an applicant who meets the criteria of those paragraphs shall have his or her application forwarded to the licensing committee if a written objection to the application is filed by any interested party.
6. RENEWAL. The application and proceedings for a renewal application shall be made in the same form and manner as the original application.
7. REGULATIONS. a. Prohibited Practices. a-1. A direct seller shall not misrepresent or make false, deceptive or misleading statements concerning the quality, quantity or character of any goods offered for sale.
a-2. No direct seller shall impede the free use of sidewalks and streets by pedestrians and vehicles; where sales are made from vehicles, all traffic and parking regulations shall be observed.
a-3. Except as provided under s. 105-57, on the day of a special event, no direct seller may engage in sales in the downtown area bounded by the north side of Michigan Street and the south side of Mason Street east of the Milwaukee River and the south side of Wells Street west of the Milwaukee River between the west side of Prospect Avenue and the east side of north 10th Street.
a-4. No direct seller may occupy more than 7 linear feet of public space parallel to the curb in the operation of a business and, in addition, occupy more than 3.5 linear feet to be measured from the curb toward the property line.
a-5. No pushcart, goods, signage or any other item related to the operation of a direct seller may touch, lean against or be affixed permanently or temporarily to any building, structure or street landscape item including, but not limited to, street lighting poles, parking meters, newspaper vending boxes, trash containers, traffic signal standards, fire hydrants, tree guards, benches or traffic barriers. Freestanding signage is prohibited.
a-6. No pushcart or goods may be located against display windows of a fixed location business, nor shall they be within 20 feet of an entranceway to any building, store, theater, movie house, sports arena or other place of public assembly.
a-7. No direct seller may conduct business within any bus stop or within 20 feet of any driveway or any cross walk at any intersection.
a-8. No direct seller shall make any loud noise or use any sound amplifying device to attract customers if the noise produced is capable of being plainly heard outside a 100-foot radius of the source.
a-9. No direct seller selling goods from a pushcart, stand, table, container or other stationary apparatus located on the public way or other public premises shall allow rubbish or litter to accumulate in or around the area in which the direct seller is conducting business, whether generated by the business or the public at large. A clean, plastic-lined trash container clearly marked for litter shall be kept and maintained in the area by the direct seller. The direct seller shall remove the container from the site for emptying on a daily basis or more frequently as conditions warrant.
a-10. No direct seller shall engage in any activity for which a license is required under this section unless at the time the direct seller is carrying upon his or her person an official license.
a-11. A direct seller shall be prohibited from selling goods or taking orders on the premises of any public building at any time without the express written consent of the custodian of such premises or any other public premise dedicated to a special purpose and posted.
a-12. No direct seller may conduct business within 300 linear feet of any currency exchange.
a-13. Stands, tables, containers or stationary apparatuses other than pushcarts may not be used to sell goods on the public way or other public premises in the central business districts as established under the zoning code.
a-14. If goods are to be sold from a pushcart, stand, table, container or other stationary apparatus to be located on the public way or other public premises, the direct seller shall obtain a special privilege permit granted by common council resolution pursuant to s. 245-12. A special privilege permit related to sale of goods from a pushcart by a direct seller need be renewed annually only if the pushcart size and description submitted for annual renewal of the direct seller's permit has changed.
a-15. No direct seller shall sell or offer for sale any item while the person is on a roadway median or safety island, except when the roadway has been legally closed to traffic for a parade, festival or other civic or special event and the seller is otherwise in compliance with this section.
b. Disclosure Requirements. b-1. After the initial greeting and before any other statement is made to a prospective customer, a direct seller shall expressly disclose his name, the name of the company or organization he is affiliated with, if any, and the purpose of his visit.
b-2. If any sale of goods is made by a direct seller, or any sales order for the later delivery of goods is taken by the seller, the buyer shall have the right to cancel the transaction in accordance with the procedure as set forth in s. 423.203, Wis. Stats. The seller shall give the buyer 2 copies of a typed or printed notice of that fact. Such notice shall conform to the requirements of s. 423.203(1)(a), (b) and (c), (2) and (3), Wis. Stats.
b-3. If the direct seller takes a sales order for the later delivery of goods, he or she shall, at the time the order is taken, provide the buyer with a statement containing the terms of the agreement, the amount paid in advance whether full, partial or no advance payment is made, the name, address and telephone number of the seller, the delivery or performance date, and whether a guaranty or warranty is provided and, if so, the terms thereof.
c. Liability Insurance. To hold a valid license, a direct seller selling or offering for sale goods from a pushcart, stand, table, container or other stationary apparatus located on the public way must have in force at all times general liability insurance. As evidence of the applicant's ability to comply with this condition of the license, the applicant shall furnish to the city a certificate of insurance evidencing the existence of general liability insurance, with the city of Milwaukee named as an additional insured. Insurance coverage required under this paragraph shall be, at a minimum, a combined single limit of $100,000 per occurrence. The certificate of insurance shall provide 30 days written notice to the city upon cancellation or nonrenewal or material change in the policy. In addition to the foregoing insurance requirements, all direct sellers shall be required to indemnify and hold harmless the city, its employes and agents against any and all claims, demands, costs, damages, expenses or liability of any kind incurred because of any damages or injuries resulting from the activities for which the license is granted.
d. Pushcart Specifications. d-1. A pushcart shall contain no more than 24.5 square feet of area measured on a horizontal plane (axle excluded); dimensions shall not exceed 7 feet in length and 3.5 feet in width.
d-2. The vertical height of a pushcart shall not exceed 10 feet measured from ground level to the highest point on the pushcart including signage, canopy, awning or umbrella, if any.
d-3. A pushcart may be handmade or of a mass produced type.
d-4. The use of canopies, awnings or umbrellas on a pushcart shall be such as to maintain a vertical clear space of 7 feet measured from ground level to the lowest point of the canopy, awning or umbrella.
d-5. Signs or other items of equipment attached to a pushcart shall not exceed the greatest dimensions of the pushcart in both directions and shall be securely fastened.
d-6. All pushcarts shall be moved manually onto, about and off of public sidewalks. The use of a motor vehicle on a public sidewalk to deposit or remove a pushcart is prohibited.
e. Each side of a vehicle used in the conduct of business shall display the name of the person to whom the license is issued, and local telephone number in lettering not less than 4 inches high.
8 . REVOCATION OR SUSPENSION. Any license issued under this section may be suspended or revoked for cause by the common council. Suspension or revocation proceedings may be instituted by the licensing committee upon its own motion, or upon sworn written charges made and filed with the city clerk by the chief of police, or upon a sworn written complaint filed with the city clerk by any interested person.
9. PENALTY. Any person convicted of violating any provision of this section shall be fined not less than $20 nor more than $200 for each violation, plus costs of prosecution; each day's violation shall constitute a separate offense.
LRB
APPROVED AS TO FORM
_________________________
Legislative Reference Bureau
Date:_____________________
Attorney
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
________________________
Office of the City Attorney
Date:____________________
Drafter
CCL08313-1
RBP
3/14/2008
LRB08139-2
TWM:mbh
3/20/2008