Ordinance No. 9,829 Published in Baytown Sun on .
Tuesday, July 13, 2004 and
ORDINANCE NO. 9829 Thursday, July 15, 2004
b AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, REPEALING CHAPTER 74 "PEDDLERS AND SOLICITORS,"
ARTICLE II "ITINERANT MERCHANTS" OF THE CODE OF
ORDINANCES, CITY OF BAYTOWN, TEXAS, IN ITS ENTIRETY;
AMENDING CHAPTER 74 "PEDDLERS AND SOLICITORS" OF THE CODE
OF ORDINANCES, BAYTOWN, TEXAS, TO ADD A NEW ARTICLE TO BE
NUMBERED AND ENTITLED ARTICLE II "ITINERANT MERCHANTS
AND OPEN AIR VENDORS" TO ESTABLISH REQUIREMENTS TO
OBTAIN AN ITINERANT MERCHANT LICENSE AS WELL AS AN OPEN
AIR VENDOR LICENSE, TO REGULATE THOSE OBTAINING SUCH
LICENSES IN ORDER TO ADVANCE THE HEALTH, SAFETY, AND
WELFARE OF THE CITY AND ITS INHABITANTS; PRESCRIBING A
MINIMUM PENALTY OF TWO HUNDRED AND NO/100 DOLLARS
($200.00) AND A MAXIMUM PENALTY OF FIVE HUNDRED AND NO/100
• DOLLARS ($500.00); PROVIDING A REPEALING CLAUSE; CONTAINING
A SAVINGS CLAUSE; AND PROVIDING FOR THE PUBLICATION AND
EFFECTIVE DATE THEREOF.
******************************************************************************
WHEREAS, a city may by ordinance regulate the business activities of itinerant
merchants, salesmen, and peddlers; and
WHEREAS, the city has regulated itinerant merchants since 1958 to ensure the health,
safety and welfare of its citizens; and
WHEREAS, in furtherance of the public's health, safety and welfare, it is necessary to
regulate the location of structures used by open air vendors so as not to inhibit the safe,
convenient, and effective movement of persons, to ensure compliance with public parking
requirements and to avoid interruption or interference with traffic in the public rights-of-way;
and
WHEREAS, additionally, in furtherance of the public's health, safety, and welfare, it is
imperative that all itinerant merchants, their agents, employees, and their customers have access
to proper indoor sanitary and hand-washing facilities; and
WHEREAS, this entire ordinance is and shall be deemed an exercise of police power of
the State of Texas and of the City of Baytown for the public health, safety, and welfare of the
City and its citizens and all provisions hereof shall be construed for the accomplishment of that
purpose; and
WHEREAS, the City Council desires to amend the current general, application, and
duration requirements for itinerant merchants, codified in Chapter 74 of the Code of Ordinances
of the City of Baytown to address these concerns and better regulate future development in the
® City of Baytown; NOW THEREFORE
• BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: All matters and facts set forth in the recitals above are found to be true and
correct.
Section 2: That Chapter 74 "Peddlers and Solicitors," Article II "Itinerant Merchants"
of the Code of Ordinances, City of Baytown, Texas, is hereby repealed in its entirety.
Section 3: That Chapter 74 "Peddlers and Solicitors" of the Code of Ordinances, City
of Baytown, Texas, is hereby amended to add a new article to be numbered and entitled Article
II "Itinerant Merchants and Open Air Vendors" to read as follows:
CHAPTER 74. PEDDLERS AND SOLICITORS
ARTICLE II. ITINERANT MERCHANTS AND OPEN AIR VENDORS
DIVISION 1. GENERALLY
Sec. 74-26. 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:
Director means the director of the health department.
Goods means any personal property of any nature whatsoever, including but not limited to
tickets for admission to athletic, sporting or entertainment events or shows, wares, services,
photographs or magazines.
Itinerant merchant means any person, as well as his agents and employees, who (i) solicits, sells
or offers for sale any goods, merchandise, or service, or (ii) exhibits goods or merchandise for
sale or for the purpose of taking orders for the sale thereof, by:
1. the display, exhibit, sale or offer for sale of such goods or merchandise upon or from
a truck or other vehicle on the city streets, or
2. going from house to house or from place to place in the city, or
3. remaining on any one property for a period less than one hour.
Open air vendor is a person as well as his agents and employees who (i) solicits, sells or offers
for sale any goods, merchandise, or service to the public, or (ii) exhibits goods or merchandise
® . for sale or for the purpose of taking orders from the public for the sale thereof, and who
2.
• 1. does not solicit, sell or offer for sale goods, merchandise, or service or exhibit
goods or merchandise for sale or for the purpose of taking orders for the sale
thereof
a. from within a facility for which a certificate of occupancy has been issued
by the chief building official of the city, or
b. on the same property where the person solicits, sells or offers for sale the
same or similar goods, merchandise, or service from within a facility for
which a certificate of occupancy has been issued by the chief building
official of the city; and
2. remains on any one property for a period of one hour or more soliciting, selling or
offering, or exhibiting for order or sale goods, merchandise or service.
Sec. 74-27. Purpose and construction of article.
This 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
the sections of this article shall be construed for the accomplishment of that purpose.
Sec. 74-28. Exemptions from article.
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.
Sec. 74-29. Administration and enforcement.
The fire chief, police chief and the directors of engineering, health, and planning and
development services are authorized to enforce this article and to make all necessary inspections,
to issue citations, to give notice, to file applicable charges and to otherwise cooperate in the
enforcement of this article.
Sec. 74-30. Violations.
Any person violating any section of this article shall, upon conviction, be fined as
provided in section 1-14; provided the minimum fine shall be $200.00. Each sale, offer for sale,
exhibition for purpose of sale or exhibition for the purpose of taking orders for the sale thereof in
violation of this article shall constitute a separate offense.
•
•
• Sec. 74-31. Standing in roadway prohibited.
A person may not stand in a roadway for the purpose of soliciting a ride, contribution,
employment or business from the occupant of any vehicle.
•
Sec. 74-32. Hours.
(a) It shall be unlawful for any person to engage in any activity described in Section 74-26
except between the hours of 9:00 a.m. and 7:00 p.m.
(b) It shall be unlawful for any person to engage in any activity described in the definition of
"itinerant merchant" in Section 74-26 on a Sunday.
Sec. 74-33. General prohibitions.
(a) No itinerant merchant shall use or attempt to use any entrance other than the front or
main entrance to a structure, or step from the sidewalk or indicated walkway, where one
exists, leading from the right-of-way to the front or main entrance of the structure, except
by express invitation of the resident or occupant of the property.
(b) No open air vendor shall:
1. be located in a neighborhood conservation or urban neighborhood zoning district •
as defined in Chapter 130 of this Code;
2. be allowed to locate in an area where there is less than two all-weather, off-street
parking spaces per one thousand (1000) square feet of display area on the site; or
3. locate in such a manner that will impede or interrupt the normal ingress and
egress of traffic from a public right-of-way.
g
DIVISION 2. LICENSE
Sec. 74-61. Required.
(a) Except as provided in subsection (d) of this section, it shall be unlawful for any person to
engage in any activity of an itinerant merchant described in section 74-26 without having
applied for and obtained a license issued by the director.
(b) It shall be unlawful for any person to engage in any activity of an open air vendor
described in section 74-26 without having applied for and obtained an open air vendor
license issued by the director.
•
•
® (c) It shall be unlawful for any person during a twelve month period to engage in any
activity of an open air vendor described in section 74-26 from more than two locations
within the city limits.
(d) No license shall be required of any person while such person is a registered participant in
an official, city-sponsored event. •
Sec. 74-62. Application for license.
(a) No itinerant merchant license required under this division shall be issued by the city until
the itinerant merchant makes application in writing on forms to be furnished by the
director. Such application shall be in affidavit form stating the full name and address of
the itinerant merchant, and the location of its principal office and place of business. The
application must be accompanied by the following:
(1) A statement showing the kind and character of the goods, merchandise, or service
to be sold, offered for sale or exhibited;
(2) The full corporate name and the name and address of the registered agent and
chief executive officer of the corporation, if the itinerant merchant is a
corporation incorporated under the laws of this state;
(3) A copy of its permit to do business in the state or the name of its agent for service,
if the itinerant merchant is a corporation incorporated under the laws of some
state other than this state;
(4) Two recent photographic likenesses of the applicant's face, which photographs
shall be one inch square in size;
(5) A certificate or letter from an officer or manager of the company or organization
for whom the itinerant merchant works or solicits, stating that the applicant is an
employee or agent of such company or organization;
(6) The applicant's tax identification number; and
(7) A bond and a nonrefundable fee as described in section 74-63.
(b) No open air vendor license required under this division shall be issued by the city until
the open air vendor makes application in writing on forms to be furnished by the director.
Such application shall be in affidavit form stating the full name and address of the open
air vendor, and the location of its principal office and place of business. The application
must be accompanied by all of the information described in subsection (a) of this section
alongwith the following:
g
5
•
• (1) Written documentation from the owner of the property upon which the open air
vendor proposes to locate any portion of his operation, including, but not limited
to, the display areas and the parking areas. The written documentation must
(a) grant permission to locate on said property,
(b) state the purpose thereof, the dates of permitted operation, hours of
operation, and
(c) affirm that the owner of the property on which the open air vendor is to be
located remains in compliance with all applicable codes, including, but not
limited to, chapters 18 and 112 despite the addition of the open air vendor
(2) Written documentation from either the owner of the property upon which the open
air vendor proposes to locate or the owner of the property immediately adjacent
thereto which indicates that sanitary and hand-washing facilities in a structure, for
which a certificate of occupancy has been issued by the chief building official,
(a) exist on the owner's property, and
(b) are available to the open air vendor, its agents, employees, and
customers during all dates and hours of operation of the open air
vendor.
(3) A site plan, which must
(a) include a description of the number of existing all-weather, off-street
parking spaces and the number of remaining spaces if the open air vendor
operates on site;
(b) if all-weather, off-street parking spaces are not located on the same
property on which a person engages in any activity of an open air vendor,
show where the off-street parking area is located, which property must be
contiguous to the property on which a person engages in one or more
activities of an open air vendor;
(c) include a statement indicating whether or not the applicant will be
utilizing a temporary structure, including, but not limited to, sheds,
canopies, tents, etc., in soliciting, selling, or offering for sale any goods or
merchandise; a brief description, including dimensions of any proposed
structure; square feet of existing improvements and floor area; and its
proposed location;
•
(d) show where the sanitary and hand-washing facilities available to the
employees and the public are located;
6
(e) include a traffic plan depicting the means of ingress and egress so that
• vehicles enter and exit the site in a forward motion;
(f) indicate the hours of operation; and
(g) be approved by the director of the planning and development services.
Sec. 74-63. Fee; bond.
(a) Application Fees. The fees specified in this subsection shall be used to defray
expenses incident to the issuing of licenses.
1. Itinerant merchant license. Simultaneously with the filing of the application for
an itinerant merchant license, the applicant shall file with the City a
nonrefundable fee in the amount of$15.00.
2. Open air vendor license. Simultaneously with the filing of the application for an
open air vendor license, the applicant shall file with the City a nonrefundable fee
in the amount of$100.00.
3. Replacement licenses. The fee for the replacement of a license shall be the same
fee prescribed in subsection (a)(1) or (a)(2), as applicable.
(b) Bond. Simultaneously with the filing of an application, the applicant shall file with the
city a bond executed by the applicant and by a corporate surety licensed to do business in
the state. The bond shall be in the sum of $1,000.00 and conditioned for the final
delivery of goods, merchandise, or service in accordance with the terms of any order
obtained prior to delivery and shall also be conditioned to indemnify any and all
purchasers or customers for any and all defects in material or workmanship that may exist
in the goods, merchandise, or service sold, by the principal obligor of such bond, at the
time of delivery, or that may be discovered by such purchaser or customer within 30 days
after delivery. Such bond, while payable to the city, shall also inure to the benefit of any
person damaged or injured in any manner by the principal obligor because of purchasing
or giving any order to the principal obligor thereon or to an agent or employee of the
principal obligor. The bond shall remain in full force and effect for the entire duration of
the license as provided in this division or until the expiration of 30 days after the final
delivery of any goods, wares, merchandise, services, photographs, or magazines sold
under such permit, whichever occurs last.
(c) If the applicant is engaging in any activity mentioned in this article through one or more
agents or employees, such applicant shall be required to enter into only one bond in the
sum of$1,000.00 as required in subsection (b) of this section, which bond shall be made
to cover the activities of all his agents or employees.
•
7
® Sec. 74-64. Contents of license.
Each license issued under this division shall contain the following:
1. The name of the applicant and his address;
2. A photographic likeness furnished with the application; and
3. The date the license was issued.
Sec. 74-65. Issuance.
The director shall issue to any person a license authorizing the merchant or vendor to sell,
exhibit for sale, offer for sale or exhibit for the purpose of taking orders for the sale thereof, in
the city, its goods, merchandise, or service after such person has fully complied with all
appropriate provisions of this article, paid the prescribed fee and posted the required bond.
Licenses for open air vendors will be specific to the location specified on the site plan.
Sec. 74-67. Revocation.
A license issued under this division may be revoked by the director for any of the
following reasons:
1. Any violation of this article;
2. Any deviation from the approved site plan;
3. Any violation of a city ordinance or state law in connection with any soliciting by
such license holder or in connection with
a. the collection or attempted collection of any account due to such license
holder or
b. the repossession or attempted repossession of goods or merchandise sold
by such license holder;
3. Fraud, misrepresentation or incorrect statement made either in the application or
in the course of carrying on the activity;
4. Conducting the activity in such a manner as to constitute a breach of the peace or
a menace to the health, safety or general welfare of the public;
•
8
• 5. Failure of the open air vendor or the owner of the property on which the open air
vendor is located to remain in compliance with all applicable codes, including, but
not limited to, chapters 18 and 112 despite the addition of the open air vendor.
Sec. 74-67. Appeal.
(a) An applicant may appeal the decision of the director regarding a denial or revocation of a
license by filing a written request for a hearing with the director within ten days after the
director issues notice of the denial or revocation. The director's decision on the
application or revocation shall be final unless an appeal is timely filed.
(b) An appeal shall not stay the director's decision on the issuance or revocation of a license.
(c) The written request for a hearing shall set out the grounds on which the denial or
revocation is challenged. The hearing shall be conducted by the city council. At the
hearing, the city council shall receive oral and written testimony regarding the application
or revocation. Hearings shall be conducted under rules issued by the city council, which
shall be consistent with the nature of the proceedings and shall ensure that each party
may present evidence, cross-examine witnesses and be represented by legal counsel.
(d) The city council shall conduct the hearing within 30 days after receipt of the written
request for a hearing unless an extension of time is granted by the city council. The city
council shall render a written decision and issue notice thereof within ten days after the
conclusion of the hearing. The written decision of the city council shall be final and
binding.
Sec. 74-68. Display.
(a) It shall be unlawful for any person to engage in any activity for which a license is
required by this division unless he prominently displays the license in a conspicuous
place i
1. on himself in the case of an itinerant merchant or
2. visible from a public way on the premises where the sale or exhibit is being
conducted in the case of an open air vendor.
(b) The license shall remain displayed in accordance with subsection (a) as long as any
goods, merchandise, or service is being sold or exhibited.
•
•
1
• Sec. 74-69. Duration.
•
(a) Itinerant merchant license. All itinerant merchant licenses issued under this division
shall be valid from the date shown thereon for a period of ninety (90) consecutive
calendar days, unless sooner revoked as provided in this division.
(b) Open air vendor license. All open air vendor licenses issued under this division shall be
valid from the date shown thereon for a period of thirty (30) consecutive calendar days,
unless sooner revoked as provided in this division. An open air vendor operating from
any property for more than thirty (30) consecutive days in any twelve-month period must
provide a permanent structure equipped with adequate sanitary and hand-washing
facilities and in compliance with all applicable codes.
Sec. 74-70. Transferability; effect.
A license issued under this division shall not be transferable nor shall it give authority to
more than one person to conduct a business as an itinerant merchant or an open air vendor.
Section 4: Any person who fails to comply with any provision of this ordinance shall
be guilty of a misdemeanor and, upon conviction, shall be punished by a fine not less than TWO
HUNDRED AND NO/100 DOLLARS ($200.00) and not more than FIVE HUNDRED AND
NO/100 DOLLARS ($500.00). Each act of violation and each day upon which any such
violation shall occur shall constitute a separate offense. In addition to the penalty prescribed
above, the City may pursue other remedies such as abatement of nuisances, injunctive relief,
administrative adjudication and revocation of licenses or permits.
Section 5: All ordinances or parts of ordinances inconsistent with the terms of this
ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of
such inconsistency and in all other respects this ordinance shall be cumulative of other
ordinances regulating and governing the subject matter covered by this ordinance.
Section 6: If any provisions, section, exception, subsection, paragraph, sentence,
clause or phrase of this ordinance or the application of same to any person or set of
circumstances, shall for any reason be held unconstitutional, void or invalid, such invalidity shall
not affect the validity of the remaining provisions of this ordinance or their application to other
persons or sets of circumstances and to this end all provisions of this ordinance are declared to be
severable.
Section 7: This ordinance shall take effect from and after ten (10) days from its
passage by the City Council. The City Clerk is hereby directed to give notice hereof by causing
the caption of this ordinance to be published in the official newspaper of the City of Baytown at
least twice within ten (10) days after passage of this ordinance.
•
10
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown, this the 8th day of July, 2004.
CALVIN MUNDINGER, Mayo
ATTEST:
GARY"W. SMITH, City Clerk
APPROVED AS TO FORM:
--Krk0,41 ‘A,
KAl2EN L. HORNER., FiMssistant City Attorney
\\Bdc2\litigation\Karen\Files\City Council\Ordinances\OpenAirCompare04630Clean.doc
It