2004-113ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING CHAPTER 16
RELATING TO LICENSES, PERMITS AND BUSINESS REGULATIONS BY REPLACING
ARTICLE III TITLED SOLICITORS AND ITINERANT MERCHANTS IN ITS ENTIRETY
WITH A NEW ARTICLE III; PROVIDING A SEVERABILITY CLAUSE; A SAVINGS
CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF
THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS:
SECTION 1. That Chapter 16 "Licenses, Permits and Business Regulations" of the Code
of Ordinances of Denton, Texas is hereby amended by replacing Article III of Chapter 16 titled
"Solicitors and Itinerant Merchants" in its entirety.
SECTION 2. That Article HI of Chapter 16 "Solicitors and Itinerant Merchants" of the
Code of Ordinances of Denton, Texas is hereby amended to read as follows:
Chapter 16
ARTICLE IlL
SOLICITORS AND ITINERANT MERCHANTS
ARTICLE HI. SOLICITORS AND ITINERANT MERCHANTS*
DIVISION 1. GENERALLY
Sec. 16-71. Purpose.
This entire article is and shall be deemed an exercise of the police power of the state and
of the city for the public safety, comfort, convenience and protection of the city and its citizens,
and all of the provisions of this article shall be construed for the accomplishment of that purpose.
Sec. 16-72. Definitions.
The following words, terms and phrases, when used in this article, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a different
meaning:
Agricultural Vendor means an individual engaged in selling only products which are
planted and or naturally harvested including fruits, vegetables, plants, trees, nuts or honey.
Conviction means a conviction in a federal court or a court of any state or foreign nation
or political subdivision of a state or foreign nation that has not been reversed, vacated, or
pardoned.
Goods or merchandise means any personal property of any nature whatsoever, except
printed material.
Handbill means any printed or written matter, any sample or device, circular, flyer,
leaflet, pamphlet, paper, booklet, or any other printed matter of literature which is not delivered
by United States mail, including, but not limited to, those which:
(a) Advertise for sale any merchandise, product, commodity, or thing;
(b) Direct attention to any business or mercantile or commercial establishment, or
other activity, for the purpose of either directly or indirectly promoting the interest
thereof by sales; or
(c) Direct attention to or advertise any meeting, theatrical performance, exhibition, or
event of any kind for which an admission fee is charged for the sole purpose of private
gain or profit.
Handbill distributor means and includes any person engaging or engaged in the
business for hire or gain of distributing handbills, other than newspapers distributed to
subscribers thereof, and any person receiving compensation directly or indirectly for the
distribution of such handbills.
Handbill sponsor means and includes any person, firm or corporation who utilizes
handbills as a medium of advertising or spreading a message.
Home solicitation transaction means a transaction or the purchase of goods or services,
payable in installments or cash, in which the home solicitor engages in a personal solicitation of
a sale to a person at a residence. A home solicitation transaction shall not include a sale made
pursuant to a preexisting retail charge agreement or a sale made pursuant to prior negotiations
between the parties at a business establishment at a fixed location where goods or services are
offered or exhibited for sale or a sale of realty, in which transaction the purchaser is represented
by a licensed attorney or in which the transaction is being negotiated by a licensed real estate
broker.
Home solicitor means a person who goes from house to house or from place to place
soliciting, selling or taking orders for or offering to sell or take orders for any goods,
merchandise or services, this includes distribution of handbills left at any residence.
Itinerant merchant means a person who sets up and operates a temporary business
within the premises of another business or any other building or location in the city soliciting,
selling or taking orders for or offering to sell or take orders for any goods or services.
Multiunit complex means two or more dwellings in one or more buildings that are:
(a) under common ownership;
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(1)
or
(b) managed by the same owner, agent, or management company; and
(c) located on the same lot or tract or adjacent lots or tracts of land.
Police chief means the chief of police or his designee of the city.
Residence means any separate living unit occupied for residential proposes by one (1) or
more persons, contained within any type of building or structure.
Soliciting means selling or attempting to sell goods or services or to take or attempt to
take orders for services or goods to be performed or furnished in the future.
See. 16-73. Hours for home solicitation.
(a) A person shall not go upon any residential premises and ring the doorbell or rap
or knock upon the door or create any sound in a manner calculated to attract the attention
of the occupant of the residence for the purpose of engaging in or attempting to engage in
a home solicitation transaction:
Before 9:00 a.m. or after 6:00 p.m. of any day, Monday through Saturday;
(2) At any time on a Sunday, New Year's Day, July 4th, Labor Day,
Thanksgiving Day or Christmas Day.
(b) Subsection (a) of this section shall not apply to a visit to the premises as a result
of a request or an appointment made by the occupant.
Sec. 16-74. Prohibited conduct.
It shall be unlawful for a person engaged in soliciting under this article to:
(a) Misrepresent the purpose of the solicitation;
(b) Continue efforts to solicit from an individual once that individual informs the
solicitor that he does not wish to make a purchase from that solicitor;
(c) Represent the issuance of any permit under this article as an endorsement or
recommendation of the solicitation.
(d) Fail to carry a valid driver's license or identification card issued by the State of
Texas or the State in which the defendant resides.
See. 16-75. Exhibiting card prohibiting solicitors and/or handbill distributors.
(a) A person desiring that no merchant or other person engage in a home solicitation
at his residence or at a multi-unit complex which he ovms or manages shall exhibit in a
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conspicuous place upon or near the main entrance/entrances to the residence or multi unit
complex a weatherproof card, or sign not less than two (2) inches by four (4) inches in
size, containing the words, "No Solicitors" or No Handbills. "The letters shall be not less
than two-thirds of an inch in height. Multi-mt complexes may also give notice of no
soliciting by painting the words, "No Solicitors" or "No Handbills" on the curbs at major
entrances to the multi-unit complex.
(b) Every solicitor upon going onto any premises upon which a residence is located
shall first examine the residence or multi unit complex to determine if any notice
prohibiting soliciting or handbill distribution is exhibited upon or near the main entrance
to the residence or multi unit complex. If notice-prohibiting soliciting is exhibited, the
solicitor shall immediately depart fi:om the premises without disturbing the occupant,
unless the visit is the result of a request made by the occupant.
(c) No person shall go upon any residential or multi unit complex premises and ring
the doorbell or rap or knock upon the door or create any sound in a manner calculated to
attract the attention of the occupant of the residence for the purpose of securing an
audience with the occupant and engaging in or attempting to engage in a home
solicitation transaction if a card as described in subsection (a) of this section is exhibited
in a conspicuous place upon or near the main entrance(s) to the residence or multi-unit
complex, unless the visit is the result of a request made by the occupant.
(d) No person shall distribute handbills upon any residential or multi unit complex
premises if notice as described in subsection (a) of this section is exhibited in a
conspicuous place upon or near the main entrance(s) to the residence or multi-unit
complex. It is prima facie evidence that the handbill sponsor is fully responsible for the
placement or distribution of the handbills.
See. 16-76. Soliciting on city property.
(a) It shall be unlawful for any person to solicit on property owned by the city, unless
such person has entered into a license agreement with the city.
(b) The city manager is authorized to execute and enter into license agreements with
solicitors authorizing the use of a tract or portion thereof of city property where specific
findings are made that the proposed use:
(1) Will not violate the provisions of the Texas Transportation Code, Section
552.007 or Texas Penal Code § 42.03;
(2) Will not cause or contribute significantly to congestion on the public
sidewalks so as to render access to abutting private property unreasonably
inconvenient.
(c) The licensee shall pay a rental fee based upon square footage.
Sec. 16-77. Additional Requirements for Itinerant Merchants.
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(a) Itinerant merchants shall not block fire lanes.
(b) Itinerant merchants shall provide a portable toilet or obtain written permission
fi.om the property owner to use the rest room facilities.
(c) Itinerant merchants shall not obstruct traffic site triangles.
(d) Itinerant merchants shall not obstruct required parking spaces.
(e) Itinerant merchants shall be set back from the edge of the right of way by at least
fifteen feet.
(f') Itinerant merchants shall meet all requirements of the Denton Development Code.
Sec. 16-78. Exemptions.
(a) The provisions of this article shall not apply to sales made to dealers by
commercial travelers or sales agents in the usual course of business calling upon or
dealing with manufacturers, wholesalers, distributors or retailers at their places of
business.
(b)
The provisions of this article shall not apply to anyone or any group who is
required to get a special events permit through the City Parks and Recreation
Department or to the North Texas State Fair.
(c) The provisions of this article shall not apply to an agricultural vendor.
(d)
The provisions of this article shall not apply to a person soliciting employment at
the Day Labor Site.
(e)
The provisions of this article shall not apply to organizations whose membership
consists primarily of persons under 18 years of age, such as Girl Scouts, Boy
Scouts, school organizations, youth sports organizations, and charitable or
religious youth organizations. See Denton Code of Ordinances Chapter 25.
DIVISION 2. PERMIT
Sec. 16-91. Required.
It shall be unlawful for any itinerant merchant, handbill distributor or home solicitor to
sell, display or offer for sale any goods or services or distribute handbills within the city without
first obtaining a permit fi.om the city. If the solicitation is for charitable, religious or educational
purposes, these solicitations shall be governed by Sections 25-5, 25-5.1, and 25-5.2.
Sec. 16-92. Affirmative defenses to permit requirement.
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The following shall be an affirmative defense to prosecution under section 16-91 of this
article:
That the solicitor is on the property by invitation of the person residing on such premises.
Sec. 16-93. Application; duration renewal.
(a) Any person who wishes to engage in home solicitation, handbill distribution or
any itinerant merchant who wishes to solicit within the city shall file a written application
with the police chief, which application shall show the following:
(1) Proof of the identity and home address of the applicant and the name and
address of the employer or firm that such applicant represents;
(2) A brief description of the nature, character and quality of the goods to be
sold, or a copy of the handbills to be distributed;
(3) If employed by another, the name and business address of the person,
firm, association, organization or corporation;
(4) For any and all motor vehicles which are to be used, a description of all
the vehicles, together with the motor vehicle registration numbers of all the
vehicles, and the license numbers of all the vehicles;
(5) A description of the proposed location of the solicitation or handbill
distribution;
(6) The period of time the applicant so wishes to solicit, sell, take orders or
distribute handbills in the city;
(7) The names of other communities in which the applicant has worked as a
solicitor or handbill distributor in the past twelve (12) months, and, if he was
employed by a different company in those communities, the name of those
companies shall also be stated;
(b) The applicant or any agent of the applicant must meet the following criteria:
(1) be currently authorized to work full-time in the United States;
(2) hold a valid driver's license or identification card issued by the State of
Texas or the state in which the defendant resides;
(3) be able to communicate in the English language;
(4) not be afflicted with a physical or mental disease or disability that is likely
to endanger the public health or safety;
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(5) not have been convicted or placed on probation or deferred adjudication
for a crime:
a. involving:
1. criminal homicide as described in Chapter 19 of the Texas
Penal Code;
2. kidnapping as described in Chapter 20 of the Texas Penal
Code;
3. a sexual offense as described in Chapter 21 of the Texas
Penal Code;
4. an assaultive offense as described in Chapter 22 of the
Texas Penal Code, other than a Class C misdemeanor;
5. robbery as described in Chapter 29 of the Texas Penal
Code;
6. burglary as described in Chapter 30 of the Texas Penal
Code;
7. theft as described in Chapter 31 of the Texas Penal Code,
but only if the violation is punishable as a felony;
8. fraud as described in Chapter 32 of the Texas Penal Code;
9. tampering with a governmental record as described in
Chapter 37 of the Texas Penal Code;
10. public indecency (prostitution or obscenity) as described in
Chapter 43 of the Texas Penal Code;
11. the transfer, carrying, or possession of a weapon in
violation of Chapter 46 of the Texas Penal Code, but only if the
violation is punishable as a felony;
12. a violation of Chapter 483, Dangerous Drugs, of the Texas
Health and Safety Code that is punishable as a felony;
13. a violation of the Controlled Substances Act, Chapter 481
of the Texas Health and Safety Code that is punishable as a felony;
or
14. criminal attempt to commit any of the offenses listed in
Subdivision (E)(1)(i) through (xiii) of this subsection;
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b. for which:
1. if the applicant was convicted for a misdemeanor offense,
less than two years have elapsed since the date of conviction or the
date of release from confinement imposed for the conviction,
whichever is the later date;
2. if the applicant was placed on probation or deferred
adjudication for a misdemeanor offense, less than two years have
elapsed since the date of successful completion of probation or
deferred adjudication;
3. if the applicant was convicted for a felony offense, less
than five years have elapsed since the date of conviction or the date
of release from confinement for the conviction or the date of
release from parole, whichever is the later date;
4. if the applicant was placed on probation or deferred
adjudication for a felony offense, less than five years have elapsed
since the date of successful completion of probation or deferred
adjudication;
5. less than five years have elapsed since the date of the last
conviction or the date of release from confinement for the last
conviction, whichever is the later date, if, within any 24-month
period, the applicant has two or more convictions of any
misdemeanor offense or combination of rnisdemeanor offenses; or
6. less than five years have elapsed since the date of the
successful completion of probation or deferred adjudication for the
last offense, whichever is the later date, if, within any 24-month
period, the applicant has been placed on probation or deferred
adjudication two or more times for any misdemeanor offense or
combination of misdemeanor offenses;
c. not be addicted to the use of alcohol or narcotics;
d. be subject to no outstanding warrants of arrest;
e. An applicant who has been sentenced for an offense listed in
Subsection (b)(5)(a.) 1-8 which is a felony level offense or criminal
attempt of (b)(5)(a) 1-8 for which the required time period provided by
this ordinance has elapsed, may qualify only if the chief of police or his
designee determines that the applicant is presently fit to engage in
solicitation or handbill distribution. In determining present fitness under
this section, the chief or his designee shall consider the following:
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(1) the extent and nature of the applicant's past criminal activity;
(2) the age of the applicant at the time of the commission of the crime;
(3) the amount of time that has elapsed since the applicant's last criminal
activity;
(4) the conduct and work activity of the applicant prior to and following the
criminal activity;
(5) evidence of the applicant's rehabilitation or rehabilitative effort while
incarcerated or following release; and
(6) other evidence of the applicant's present fitness, including letters of
recommendation from prosecution, law enforcement, and correctional officers
who prosecuted, arrested, or had custodial responsibility for the applicant; the
sheriff and chief of police or his designee in the community where the applicant
resides; and any other persons in contact with the applicant.
f. It is the responsibility of the applicant, to the extent possible, to
secure and provide to the chief or his designee the evidence required to
determine present fitness under Subsection (e) of this section.
g. Proof of a sales tax permit issued by the state or proof that the
goods sold are not subject to such sales tax; and
h. An itinerant merchant who makes application to offer his goods for
sale upon private property shall provide written proof that he has
permission to use such property from the owner or the owner's agent.
i. The applicant shall present written proof of his authority to
represent the company or individual he states he represents.
j. The application shall be accompanied by a fee in an amount
established by the city council and on file in the office of the city
secretary, and no permit shall be issued until such fee has been paid by
such applicant.
k. A permit requested under this article shall be issued for the length
of time requested, not to exceed thirty (30) days for solicitors and not to
exceed fourteen (14) days for itinerant merchants.
1. Upon expiration of a permit, the solicitor or itinerant merchant
may not apply for a new permit for a period of thirty (30) days for the
same business and/or location. Application for a subsequent permit must
be made in the manner prescribed by this section.
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Sec. 16-94. Issuance.
It shall be the duty of the chief of police or his designee to issue such applicant a permit
to solicit or sell or take orders for such goods, services or merchandise set forth in the applicant's
application within five (5) working days of the receipt of a completed application and prescribed
fee, unless it has been determined that the application contains false information or the person
does not meet the criteria set forth in this Article. If the application contains false information or
the person does not meet the criteria set forth in this Article, the chief shall not issue the permit.
Sec. 16-95. Permit card.
(a) Upon issuance of a permit required under this division, the permittee shall be
issued a card which shall contain the name of the permittee, the permit number and date
of expiration.
(b) It shall be unlawful for any home solicitor or itinerant memhant to solicit in the
city without carrying the required permit card on his person and a driver's license or
identification card.
(c) It shall be unlawful for an itinerant merchant to solicit at locations other than
those listed in his application for a permit.
(d) It shall be unlawful for any person soliciting to fail or refuse to display such
permit card upon the request of any person demanding the card.
(0
It shall be unlawful for any person to duplicate or Xerox or otherwise display a
facsimile of a permit card issued pursuant to this division.
Sec. 16-96. Solicitation in selected public rights-of-way prohibited.
(a) It shall be unlawful for any person to solicit, at any time in the public rights of ways,
with or without a permit, on the following streets:
(1) Bell Avenue
(2) Bonnie Brae
(3) Carroll Boulevard
(4) Colorado Boulevard
(5) Dallas Drive
(6) Eagle Drive
(7) Elm Street
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(8) Ft. Worth Drive
(9) Hickory Street
(10) Interstate Highway 35, 35 East, 35 West and all service roads
(11) Lillian Miller Parkway
(12) Locust Street
(13) Loop 288
(14) McKinney Street
(15) Oak Street
(16) Teasley Lane
(17) University Drive/ Highway 380
(18) Woodrow Lane
Sees. 16-97- 16-125. Reserved
SECTION 3. If any section, subsection, paragraph, sentence, clause, phrase, or word in
this ordinance, or application thereof to any person or circumstances is held invalid by any court
of competent jurisdiction, such holding shall not affect the validity of the remaining portions of
this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have
enacted such remaining portions despite any invalidity.
SECTION 4. That any person violating any provision of this ordinance shall, upon
conviction, be fined a sum not to exceed Five Hundred Dollars ($500.00). Each day that a
provision of this ordinance is violated shall constitute a separate and distinct offense.
SECTION 5. Save and except as amended hereby, all the provisions, sections,
subsections, paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain
in full force and effect.
SECTION 6. This ordinance shall become effective fourteen (14) days from the date of
its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be
published twice in the Denton Record-Chronicle, the official newspaper of the City of Denton,
Texas, within ten (10) days of the date of its passage.
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PASSED AND APPROVED this the ~/~/~
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY:
day of ~/~
EULINE BROCK, MAYOR
,2004.
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