HomeMy WebLinkAbout8420-93 Amending Section 4-60 Regarding Transient Merchant Licenses •
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ORDINANCE No. 8420-93
Passed by the Common Council of the City of South Bend, Indiana.
October 11 Yq 93
Attest: `�"`� City Clerk
IRENE K. GAMMON
Attest: _�. -_. • - - - President of Common Council
Presented by me to the Mayor of the City of South Bend, Indiana
October 12 19 93
/;' City Clerk
IRENE K. GAMMON
Approved and signed by me /0/15 5 r9(3
Mayor
i
ORDINANCE NO. 020' 93
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY
OF SOUTH BEND, INDIANA, AMENDING SECTION 4-60
OF THE SOUTH BEND MUNICIPAL CODE REGARDING
TRANSIENT MERCHANT LICENSES
STATEMENT OF PURPOSE AND INTENT
The purpose of this ordinance is to amend Chapter 4 of the
Municipal Code to ensure that section 60 meets all constitutional
and statutory requirements, to more clearly define the licensing
procedures that transient merchants must follow, and to provide
better protection for the citizens of South Bend against unlawful
and unfair business practices by transient merchants .
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA, AS FOLLOWS :
Section I . Section 4-60 of the South Bend Municipal Code is
amended to read as follows :
Sec . 4-60 . Transient Merchants .
(a) Definitions .
(1) Transient merchants shall mean any
person, firm, partnership, association or
corporation which engages in the sale of
merchandise in any place in the City on a
temporary basis and does not anticipate becoming
an established business merchant for a continuous
period of time of sixty (60) days or longer. A
transient merchants includes anyone who for
himself or as an agent for another, rents, erects,
purchases, uses, or occupies any vehicle, room,
building, or other structure, including but not
limited to those located in or along parking lots,
shopping centers, sidewalks, or other areas for
the purpose of purchasing, selling, or offering
for sale anything of value at such location
without becoming an established business merchant .
A Ttransient merchants shall not include an
"open-air businesses" which are is regulated under
Section 4-38 of this Code, or a "peddlers" or
"canvassers" which s-e is regulated under Section
4-43 of this Code.
(2) Established business merchants shall mean
any person, firm, partnership, association or
corporation which engages in the sale of
merchandise and anticipates becoming a business
merchant for a continuous period of time of sixty
(60) days or longer in the City.
(3) Group event shall mean vendors or
including, A "group event" shall occur when two
general public. Group events shall not include
events which are not open to the general public or
where there may be on-floor sales which may occur
that are not the primary purpose of the event .
(b) License Required. Everyone Anyone who
anticipates selling merchandise as a transient merchant
shall, before engaging in business in the City, obtain
a license from the City Controller' s Office .
(c) Application. Application forms shall be
provided by the City Controller' s Office . Completed
forms must be filed no later than thirty (30) days
prior to the first date asp on which the applicant
intends to do business . Said application shall require
but not be limited to the applicant' s providing the
following information:
(1) The name under which the business will be
conducted.
(2) The name (s) , address (es) , and telephone
number (s) , social security number (s) , and birth
date (s) of the applicant (s) . If the business
include& is owned or operated by more than one (1)
person all principal partners and owners must be
listed by name, address, and telephone numbers,
social security numbers, and birth dates .
(3) The location (s) where the applicant
intends to do business and a description of the
facilities or premises to be used.
(4) The dates and times for which the
applicant intends to do business .
(5) A description of the types of merchandise
intended to be sold or contracted for.
(6) A copy of all proposed advertisements
intendede--be used on the radio, television,
newspapers or other media, including handbills .
(6) A brief statement of the nature of the
advertising proposed to be done for the business .
(7) The name, address and telephone number of
the contact person who will be available for a
period of time of not less that sixty (60) days
following the last date of business who will
respond to consumer complaints . Said information
must be included in all written advertisements
prior to engaging in business .
(8) The applicant' s Indiana State Retailer
License Number.
(9) A notarized statement or copy of signed
where the transient merchant anticipates selling
merchandise has agreed-to- lease said location for
the dates and times indicated, and that the
a lesst-e to have a valid transient merchant
ponsoring organization, agency, group, or person
of all proposed participants in the group event .
. . . _ _-
place, and one (1) bond or property liability
insurance policy shall be filed by the sponsoring
organization on behalf of all participants . A
listing of all participants by name, address,
telephone number, and Indiana State Retailer' s
License Number shall be attached to said
application when filed by the sponsoring
organization. The name, address, and telcphonc
_
persons required by this section.
All applicants who intend to sell any type of
merchandise sold by weight or measure must file a
copy of a current and valid certificate signed by
the Sealer of Weights and Measures of the City of
South Bend that all scales and measures to be used
by the applicant in his business have been tested
written application.
All applicants who intend to sell any type of
merchandise by weight or measure must state such
intent to the licensing clerk at the time of
filing the application. The applicant will then
be required to obtain a valid certificate signed
by the Sealer of Weights and Measures of the City
of South Bend that all scales and measures to be
used by the applicant in his business have been
tested and approved.
All applications and accompanying information
shall then be referred to the Police Department
for review and recommendation to the Board of
Public Works . Said review shall address a
background investigation of the applicant and any
other owners or operators of the business .
All proposed locations must be properly zoned for
the proposed business activity, and any building
used must be safe for public occupancy.
Therefore a copy of the completed application
form shall be referred to the Building
Commissioner or his designee for review and
recommendation to the Board of Public Works . Said
review shall address but not be limited to the
following: adequacy of ingress and egress, parking
requirements, zoning requirements, and related
health and building safety requirements of this
Code.
The licensing clerk shall also refer all
applications to the Bureau of Fire Prevention for
review and recommendation to the Board of Public
Works . Said review shall address the compliance
of the proposed building to be used for the sale
with fire safety requirements established by state
•
include an inspection , of all refrigeration
equipment to be used in the business and ensure
that the business meets the minimum sanitation
requirements established by state and local law.
(d) Additional provisions for group events .
(1) If the application is for a group event,
the sponsoring organization, agency, group, or
person shall complete one (1) application form on
behalf of all proposed participants in the group
event . For such group events, one (1) fee shall
be required of the sponsoring organization and one
(1) public liability insurance policy shall be
filed by the sponsoring organization or person on
behalf of all participants .
(2) A listing of all participants in the
group event by name, address and telephone number
shall be maintained by the sponsoring organization
or person for a period of not less than two (2)
years after the conclusion of the group event .
During that time period, the sponsor shall provide
the name, address and telephone number of any
individual participant to the City of South Bend
or any member of the public upon request . This
provision is not intended to require the sponsor
to disclose the entire vendors list, but to ensure
that any individual vendor may be located to
address consumer complaints or claims that may
occur.
(d) (e) Licensing procces . Application Approval
Procedures .
(1) Upon receipt of the written reports of an
applicant recommendations from the Police
Department andL the Building Commissioner, the
Bureau of Fire Prevention, and the County Health
Department and Bureau of Weights and Measures, if
appropriate, the Clerk of the Board of Public
Works shall submit to the Board for its review and
action a copy of said reports, the application,
and all other required documents filed by the
applicant .
(2) The Clerk of the Board shall set a date
for the public hearing on said application with
the Board and notify the applicant of the date and
time of said hearing.
(3) The applicant, or a proper designee, must
be present at said hearing and be available to and
capable of answering answer any questions
propounded by the City or the public with regard
to the proposed business activity.
(4) The Board shall make all licenses
_ • -_ _ _applicant' s filing a bond or property public
liability insurance policy. Said bond or policy
hundred thousand dollars ($300, 000) for injury to
following provision: "The City, through the Office
of the City Controller, shall be given fifteen
(15) days of notice prior to the effective date of
the cancellation or material change of this
policy. "
(5) Upon favorable review by the Policc
. - _. ••- - , . -4 1. : - = 1--,-- - - : - - ' V - -
Board of Public Works, and the filing of all
documents and fees reed by the City, the City
Controller' s Office shall issue a transient
merchant license.
(4) The Board shall approve the issuance of
the license unless the investigation of said
transient merchant' s application or evidence
adduced at the hearing discloses tangible evidence
that the conduct of the applicant' s business would
pose a threat to the public health, safety, or
general welfare. The following will constitute
valid reasons for disapproval of a license .
Tangible evidence that applicant (s) , owner (s) , or
operator (s) :
(i) have been convicted of a crime of
moral turpitude; or
(ii) have made willful misstatements in
the application; or
(iii) have committed prior violations of
statutes or ordinances pertaining to
transient merchants, peddlers, solicitors,
and the like; or
(iv) have committed prior fraudulent
acts; or
(v) have a record of multiple breaches
of solicited contracts .
(5) The Board shall make approval of all
licenses issued hereunder subject to the filing of
proof of insurance with the Board of Public Works,
which covers the transient merchant activity
within the City. Said policy shall provide
coverage for personal injury, including death, and
property damage to members of the public in the
amount of not less than three hundred thousand
dollars ($300, 000) per person and one million
dollars ($1, 000, 000) per occurrence. The
certificate of insurance filed must contain a
provision that the City of South Bend, Board of
Public Works, shall be given no less than fifteen
(15) days notice prior to the effective date of
cancellation or material change of the policy.
(6) Any applicant may appeal denial of a
license pursuant to the procedures set forth in
Section 4-16 of this Code.
(e) (f) Display of License and Other Documents
Required.
name, address, and telephone number of the contact
person for consumer complaints in a conspicuous
location near the entry of the facilities or
premises used for the sale.
(2) Said documents must remain posted
throughout the duration of the = - ' - - - -
license was issued. transient merchant activity
within the City.
(f) License Fees .
shall be as follows :
(i) Three hundred fifty dollars
($350 . 00) for proposed business operations of
three (3) consecutive days or less .
(ii) Five hundred dollars ($500 . 00) for
proposed business operations of more than
three (3) consecutive days but less than
fourteen (14) total days of operation.
(iii) One thousand dollars ($1, 0000 . 00)
fourteen (14) total days, but lcss than one
(1) year of any licensing year.
(iv) Thirty dollars ($30 . 00) for
proposed business operations during the
months of November and/or Dc-ewer, which
only sell live and/or natural Christmas trees
(q) License Fees .
(1) The license fee for a transient merchant
shall be three hundred dollars ($300 . 00) for a
continuous period of not more than fifty-nine (59)
days of operation at the location approved by the
Board of Public Works . Operation at another
location within the City during the fifty-nine
(59) day period shall require the issuance of a
separate license.
(2) Transient merchants obtaining a license
for proposed business operations during the months
of November and/or December, which sell only live
or natural Christmas trees or natural wreaths,
shall pay a license fee of thirty dollars
($30 . 00) .
(g) (h) Exemptions . Any person who has filed and
received a charitable solicitation permit pursuant to
Section 4-55 of this Code shall be exempt from the
provisions of this section.
(h) (i) Penalties .
(1) Anyone doing business as a transient
merchant who has not posted or is unable to
produce a valid license as required by this
section when requested to do so by an enforcement
pursuant to subparagraph (1) herein above shall be
required to pay a license fee of twice the amount
listed in subsection (f) (q) herein for the
specific category listed.
(3) In addition to the foregoing, the City
violation citation to anyone who violates any
individual provision of this s-ection for each
violation committed.
(4) The City may also utilize its powers
under Section 1 23 of this Code.
(3) In addition to the foregoing, anyone
violating a provision of this section shall be
subjected to a fine in an amount not exceeding two
thousand five hundred dollars ($2, 500 . 00) per
violation. Every day any violation of this
section continues shall constitute a separate
offense.
(1) (j) Suspension or Revocation of Licenses . The
City may suspend or revoke any license issued under
this section pursuant to Section 4-16 of this Code.
(j) (k) Citation Against Property Owner. The City
may issue a fifty dollar ($50 . 00) ordinance violation
transient merchant conducts business without a properly
whether the property owncr acccpts cash or in kind
property for the lcas-e of the prcmises used by said
transient merchant . It shall be a violation of this
Section for any property owner within the City to
permit the operation of an unlicensed transient
merchant business on the property owner' s real estate.
Any owner of real estate where a transient merchant
conducts business without a properly issued City
license shall be subjected to a fine in an amount not
exceeding five hundred dollars ($500 . 00) for each day
that the owner has actual notice of violation.
Section II , This Ordinance shall be in full force and
effect from and after its adoption by the Common Council,
approval by the Mayor and legal publication.
Member of t Common Council
mf sd only to Drovia€ �n
opportunity for pub1ia (1i9;.19B,1o2
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City of South Bend
Joseph F. Kernan. Mayor
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Department of Administration and Finance
Kevin C. Horton
September 20, 1993
Mr. Steve Luecke
President
South Bend Common Council
4th Floor, County-City Building
South Bend, Indiana 46601
Re: Bill Amending Section 4-60 of the South Bend
Municipal Code Regarding Transient Merchant
Licenses
Dear Steve:
I am attaching for filing a bill amending Section 4-60
of the South Bend Municipal Code, which provides for the
licensing of transient merchants . The primary changes that this
ordinance would make are as follows :
1 . We have amended the definition of group shows to
avoid imposing the requirements of the licensing ordinance on
events not open to the general public, and on events, which are
open to the general public, but do not have on-floor sales as
their primary purpose. This change will reduce the burden placed
on conventions and other events that pose no real threat to the
citizens of South Bend.
2 . We have changed the transient merchant license
application requirements to include Social Security numbers and
birth dates for all owners and operators of each transient
business . This information will enhance the effectiveness of our
police background checks and aid us in our new, more stringent
approval process .
3 . We have added to the approval process five
categories of prior misconduct by a transient that will
constitute valid reasons for license disapproval . These include
County-City Building • South Bend, Indiana 46601 • 219/235-9216 Fax 219/235-9928
Catherine A.Hubbard Jeffrey A.Rinard Isabel Gonzalez Ronalda Minnis Gatha Vaughn
Director Human Resources Finance Director Safety&Risk Manager Benefits Manager Barrett Law
Mr. Steve Luecke
September 20, 1993
Page 2
having been convicted of a crime of moral turpitude; having made
willful misstatements in the application; having committed prior
violations of statutes or ordinance pertaining to transient
merchants, peddlers, solicitors or the like; having committed
prior fraudulent acts; or having a record of multiple breaches of
solicited contracts .
4 . Due to the requirements placed upon us by IC 36-1-
3-8 (5) , we have eliminated the graduated license fee system and
moved to a fixed fee of $300 . 00 for a period of not to exceed 59
days of operation. IC 36-1-3-8 (5) states :
A unit does not have the power to impose a
license fee greater than that reasonably
related to the administrative cost of
exercising a regulatory power.
While we are not required to calculate our exact costs, we must
not charge more than a reasonable estimation of the expenses
involved in performing the necessary background checks, building
checks and other administrative procedures . Three hundred
dollars is an amount that should be high enough to cover our
expenses, yet low enough to withstand any legal challenges made
by a transient merchant . We determined that it was necessary to
eliminate the highly graduated license fee, because the
administrative costs involved in issuing a transient merchant
license is the same whether the merchant will be operating for
three days or longer.
I think that you will find that our proposed ordinance
enhances consumer protection, provides local businesses with an
equal playing field, and still manages not to discriminate in an
unlawful manner against transients . Your support and favorable
consideration of this bill is respectfully requested.
Very truly yours,
/4„Mt e• 32
Kevin C. Horton
South Bend City Controller
KCH\sb
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cc : Jenny Pitts Manier
Sandra M. Parmerlee
Pam Helwig
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c: iluecke.kch
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Office of the City Clerk
Irene Gammon, C.M.C.
October 25, 1993
Mr. Robert L. Laslie
Supplement Department
Municipal Code Corporation
P. 0. Box 2235
Tallahassee, FL 32316-2235
Dear Mr. Laslie:
Attached please find a copy of Ordinance No. 8420-93 which
amends the Municipal Code.
Please acknowledge receipt of this ordinance.
Thank you.
Sincerely yours,
Maureen Dabrowiak
Deputy
Attachment
455 County-City Building• South Bend,Indiana 46601 •219/235-9221 •Fax 219/235-9173
Jo Ann Harper Maureen Dabrowiak
Chief Deputy Deputy