ORDINANCE 2009-____ SOLICITATION

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM COAST, FLORIDA, AMENDING CHAPTER 35, ARTICLE III, SOLICITATION, OF THE CITY OF PALM COAST CODE OF ORDINANCES; PROHIBITING ANY PERSONS TO BE UPON OR GO UPON ANY PUBLIC STREET FOR THE PURPOSE OF SOLICITING EMPLOYMENT, BUSINESS, OR CONTRIBUTIONS OF ANY KIND FROM THE OCCUPANT OF ANY VEHICLE; PROHIBITING SOLICITING AT OR WITHIN 12 FEET OF AUTOMATIC TELLER MACHINES; PROVIDING FOR OTHER RELATED CONFORMING AND MISCELLANEOUS AMENDMENTS TO CHAPTER 35, ARTICLE III, SOLICITATION; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, INCORPORATION INTO THE CODE SEVERABILITY, AND AN EFFECTIVE DATE.

WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and

WHEREAS, a problem has been identified with persons attempting to solicit employment, business, and contributions from the occupants of vehicles on city streets; and

WHEREAS, this practice has been identified as being unsafe for both the person engaging in the solicitation and for traffic in general; and

WHEREAS, the activity of soliciting employment, business, and contributions from occupants of vehicles constitutes an impediment to the normal and safe flow of traffic in the City of Palm Coast; and

WHEREAS, the direct personal solicitation from drivers of vehicles distracts drivers from their primary duty to watch the traffic and potential hazards in the road, observe all traffic control signals or warnings, and to prepare to engage in the orderly travel on the public streets; and

ORDINANCE 2009-_____ Page 1 of 11 WHEREAS, it is the intent of the City Council that this ordinance apply even-handedly to every organization or individual, regardless of view point, which attempts to solicit employment, business, and contributions of any kind from the occupant of any vehicle traveling on public streets located within the City of Palm Coast; and

WHEREAS, the City Council recognizes that the United States Supreme Court has previously upheld certain restrictions on soliciting contributions and distribution of literature on public property. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (upholding a state fair rule restricting solicitation of contributions and distribution of literature to stationary booths, although permitting individuals to wander through the crowds to express ideas); and

WHEREAS, the City Council also recognizes and hereby finds that similar ordinances restricting solicitations on public streets have been upheld as constitutional including, but not limited to: Association of Community Organizations for Reform Now v. St. Louis County, 930 F. 2d 591 (8th Cir. 1991); International Society For Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge, 876 F. 2d 494 (5th Cir. 1989); and ACORN v. City of Phoenix, 798 F. 2d 1260 (9th Cir. 1986); and

WHEREAS, the City Council finds that persons using ATM machines are frequent targets of theft and robbery and that requiring a solicitation buffer from ATM machines is a reasonable safety regulation; and

WHEREAS, the City Council also desires to make conforming amendments and updates to Chapter 35, Article III, as provided herein; and

WHEREAS, the City Council of the City of Palm Coast, Florida, hereby finds this Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Palm Coast.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PALM COAST, FLORIDA, AS FOLLOWS:

ORDINANCE 2009-_____ Page 2 of 11 Section 1. Recitals. The foregoing recitals are hereby incorporated herein by this reference.

Section 2. Amendment to Chapter 35, Article III, Solicitation. The City of Palm Coast Code, Chapter 35, Article III, Solicitation is hereby amended as follows: (underlined type indicates additions and strikeout type indicates deletions)

ARTICLE III. SOLICITATION

DIVISION 1. GENERALLY

Sec. 35-101. Purpose and objectives.

It is the purpose and intent of this division to protect against the evident dangers of physical injury and traffic disruption that are present when individuals, on behalf of themselves or an organization, stand on or along public streets within the City trying to engage occupants of motor vehicles by soliciting employment, business, and contributions. It is also the intent of this division to promote the free movement and efficiency of vehicle traffic and traffic safety on public streets within the City. Further, this division is intended to preserve public safety, human life and convenience; to secure the comfort, health, welfare and prosperity of all City of Palm Coast inhabitants; to ensure that the use of streets and sidewalks in the City of Palm Coast does not become dangerous and that the free flow of traffic thereon is not impeded; to protect City of Palm Coast inhabitants against crime and undue annoyance; and to protect those persons on or otherwise using the streets against abusive behavior by solicitors.

Sec. 35-102. Definitions.

The following words used in this Division shall have the meaning ascribed to them as follows and the definitions set forth in Chapter 334, Florida Statutes, shall apply to the application of this division:

Nonprofit organization means an organization qualified under Section 501(c)(3) of the Internal Revenue Code and registered pursuant to Chapter 496, Florida Statutes, or persons or organizations acting on behalf of and with the authority of such an organization.

ORDINANCE 2009-_____ Page 3 of 11 Person means an individual, organization, group, association, partnership, corporation, trust, business entity or any combination of the above.

Public street means those publicly-owned streets within the City upon which the public has the right to travel by use of a motor vehicle including any medians or shoulders of any publicly- owned streets.

Solicit or solicitation shall mean the act of approaching, requesting or petitioning a person for purposes of employment, the sale or receipt of goods or services, or for seeking or giving money or other property.

Soliciting means the act of approaching or petitioning a person in a motor vehicle or otherwise on a street for the purpose of receiving a monetary donation or contribution, or for the purpose of remuneration for goods or services, of any kind, or as advance payment or contemporaneous payment for goods or services, of any kind, to be furnished, performed, or delivered contemporaneously or in the future. The term soliciting includes, but is not limited to, the terms street vending, peddling and hawking.

Solicitor means any person actively engaged in the act of soliciting and includes, but is not limited to, the words street vendor, peddler, and hawker.

Street means a road, roadway, or other way for vehicular traffic, whether designated as a street, highway, thoroughfare, parkway, throughway, road, avenue, boulevard, lane, or place, or however otherwise designated, and shall include the full area of the right-of-way so designated including, but not limited to, sidewalks.

Sec. 35-103. Restrictions/unlawful acts - In General.

When solicitation is not otherwise prohibited by law, the following general restrictions shall apply to solicitation activities within the city:

(a) It is unlawful for any person to raise funds, or seek financial assistance of any kind or nature, or to otherwise solicit on any street within the City without first acquiring a permit in accordance with the provisions of this division.

ORDINANCE 2009-_____ Page 4 of 11 (b a) It is unlawful for any person to obstruct any public street, road, highway, lane, alley, sidewalk or driveway in the course of soliciting.

(c b) It is unlawful for a solicitor to threaten or harass any person in the course of soliciting.

(d c) It is unlawful for a solicitor to solicit any person at a location that lies within 300 feet of a school bus stop.

(d) It is unlawful to engage in soliciting at or within 12 feet of an automated teller machine or any electronic information processing device which accepts or dispenses cash in connection with a credit or deposit account.

(e) It is unlawful for any solicitor to solicit any person except when licensed in accordance with the terms of this division and then only within the hours of 9:00 a.m. and 4:00 p.m.

(f e) It is unlawful for any person to engage in soliciting in a manner that impedes pedestrian or vehicular traffic.

ORDINANCE 2009-_____ Page 5 of 11 (g f) It is unlawful for any person to engage in soliciting in a manner that uses mechanical noise or amplifies noise.

(h) It is unlawful for a solicitor to remain in a traffic lane when a traffic control signal, such as a green ball/green arrow indication, allows traffic to flow on that lane.

(i) It is unlawful for a solicitor to fail to post a sign or signs of a size set forth in the permit issued pursuant to this division and at a location at the sight of the solicitation, as set forth in the permit, said sign or signs identifying the organization or cause sponsoring the solicitation and the location of its home offices. It shall be the duty of each solicitor to post a sign or signs as set forth in this subsection.

(j g) It is unlawful for a solicitor to provide any service to any person without the person agreeing to such service being provided to the person.

(k) It is unlawful for a solicitor to solicit in a manner otherwise than as provided in this division.

(l) It is unlawful for a solicitor to solicit in a manner that violates conditions of the permit issued pursuant to this division.

Sec. 35-104. Prohibition Upon Public Streets.

It shall be unlawful for any person to be upon or go upon any public street for the purpose of seeking or giving employment, business, or contributions of any kind from or to the occupant of any vehicle.

Sec. 35-104. Licensing requirements.

(a) A permit for solicitation on City, Flagler County, or State of Florida rights-of-way, as defined in Chapter 334, Florida Statutes, or its successor provision, within the boundaries of the City may be obtained from the City Manager or designee under the following conditions:

(i) The applicant shall be an organization qualified under Section 501(c)(3) of the Internal Revenue Code and registered pursuant to Chapter 496, Florida Statutes, or persons or organizations acting on behalf of and with the written authority of such an organization.

(ii) The applicant shall provide the specific location(s), date(s) and time(s) of the planned

ORDINANCE 2009-____ Page 6 of 11 solicitation.

(iii) The applicant shall take measures to assure the safety of the solicitors as well as the motorists. Such measures shall include, but not be limited to, providing a Florida Department of Transportation approved safety vest to each solicitor.

(iv) The applicant shall provide indemnification satisfactory to the City for defense and liability for any judgments, claims and costs arising out of the applicant's activities relative to the solicitation. This indemnification shall be in the form of an insurance policy that names the City as an additional insured and is endorsed to provide a separate aggregate of $1,000,000.00 for the event for which the person or organization is making application.

(b) Upon receipt of an application, plan, and indemnification acceptable to the City, a permit will be issued subject to the following conditions:

(i) No person or organization or person acting on the organization's behalf, may receive a permit or permits allowing solicitation for more than three days in any calendar year.

(ii) To avoid solicitation during the hours that experience the highest numbers of traffic accidents, no permit shall be given for solicitation outside the hours 9:00 a.m. to 4:00 p.m.

(iii) No more than four solicitors may solicit at any one intersection.

(iv) Soliciting will only be allowed at a limited number of intersections pre-approved for the safe conduct of such activities and each intersection shall count as a separate permit for a person or organization and shall count toward the limitation set forth in this article for the annual maximum number of permits.

(v) Each solicitor must carry a copy of the permit.

(vi) Solicitors must be 18 years of age or older.

(vii) If multiple applications are received for the same intersection at the same time, the first complete and otherwise acceptable application will be given the permit.

(c) Notwithstanding the provisions of this division, the City Manager may issue a permit for any publicly sponsored event sponsored by a governmental entity such as, by way of illustration only

ORDINANCE 2009-____ Page 7 of 11 and without limitation, a public school. The written permission of the school principal must be provided at the time that an application is submitted as to applications submitted by public schools.

(d) The applicant for a permit shall submit to the City Manager at the time of application a copy of any and all applicable State and local licenses and, when applicable, proof of payment of the applicable occupational license tax.

Sec. 35-105. Action on solicitor's permit applications by city manager; general provisions.

(a) To qualify for permission to solicitation under the provisions of this division, solicitors must apply for and secure a permit from the City Manager or designee by submitting a complete application on a form provided by the City and paying any application fee established by the City Council.

(b) Approval of an application for a solicitation permit shall be based upon a consideration of the location.

(c) The permit application may be examined and approved by the various departments of the City, as determined by the City Manager, to ensure the protection of the health, safety and general welfare. In granting their approval, such departments may suggest conditions of approval, as would be in keeping with their individual responsibilities and the general spirit and intent of this division.

(d) The City Manager, or designee, shall make a decision on an application for a solicitor's permit within five business days of receipt of the application.

(e) Permits are non-transferable.

(f) Upon good cause being shown to the City Manager, or designee, any permit issued under the provisions of this division may be revoked; provided, however, that the permittee may appeal such revocation as provided in this article.

Sec. 35-106. Appeals/revocations.

(a) If the City Manager, or designee, determines to deny the issuance of a permit upon application, or makes a good faith determination that there is cause for revocation of a permit ORDINANCE 2009-____ Page 8 of 11 issued under this article, then the applicant or permittee, as the case may be, shall be so notified in writing. The notice shall state with reasonable particularity the grounds for such refusal to issue or revocation. In the case of revocation, such shall be effective 24 hours after the issuance of the notice.

(b) If the applicant or permittee wishes to contest such action by the City Manager or designee, the applicant/permittee must file, within ten days after the issuance of the notice from the City Manager or designee, a written notice of appeal and request for a hearing, along with any applicable appeal fee that may be established by the City Council.

(c) If a written notice of appeal and request for a hearing is timely filed, the matter shall be considered at the nearest regular or special meeting of the City Council occurring not less than ten days after the filing of such notice and request. The applicant or permittee, or their representative, shall be notified of the time and place of such hearing.

Sec. 35-105 - 35-106. Reserved.

Sec. 35-107. Penalties.

Any person violating any of the provisions of this division shall be punished to the maximum extent as provided in state law including, but not limited to, being subject to a code enforcement action under chapter 162, Florida Statutes. To the extent that a violation is subject to code enforcement action under chapter 162, Florida Statutes, the City Manager, or his designee, shall at his or her discretion designate an alleged violation of this Division to be heard by the City’s Code Enforcement Board or by the City’s Hearing Officer. Upon finding that a solicitor or the solicitor's organization does not have a permit, or that the solicitation is occurring outside the location or hours shown on the permit, that the information given on the permit location was materially fraudulent or misleading, or that any of the conditions of the permit are not being met, a police officer or other designated official shall issue a warning to cease the solicitation. Continuation of the prohibited solicitation will be subject to the solicitor(s) arrest or any other enforcement action and penalty as provided in law. The City may engage in any other code enforcement activities and processes, as it deems appropriate under the circumstances.

ORDINANCE 2009-____ Page 9 of 11 Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.

Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the Palm Coast City Code and any section or paragraph, number or letter, and any heading may be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical, and like errors may be corrected and additions, alterations, and omissions, not affecting the construction or meaning of this ordinance and the City Code may be freely made.

Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance.

Section 6. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Council of the City of Palm Coast, Florida.

APPROVED on first reading the 20th day of January 2009.

ADOPTED on second reading the 3rd day of February 2009.

CITY OF PALM COAST, FLORIDA

ATTEST: Jon Netts, Mayor

Clare M. Hoeni, City Clerk

Approved as to legal form for the City of Palm Coast:

ORDINANCE 2009-____ Page 10 of 11 ______William E. Reischmann, Jr., City Attorney

ORDINANCE 2009-____ Page 11 of 11