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Closing the Door on Solicitor Litigation. The Need For And Advantages Of the Model Solicitation Ordinance. Most Municipalities Have Ordinances Regarding Door-to-Door Solicitation.

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Closing the door on solicitor litigation l.jpg

Closing the Door on Solicitor Litigation

The Need For And Advantages Of the Model Solicitation Ordinance


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Most Municipalities Have Ordinances Regarding Door-to-Door Solicitation

“To protect the local citizenship against crime and to preserve the private property, peace, and comfort of the occupants of the private residen[ces] in the City.”


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Solicitor Litigation Case Study SolicitationPacific Frontier v Pleasant Grove

  • Sellers of Kirby vacuum cleaners brought suit against Pleasant Grove in November 2002.

  • Plaintiffs alleged the Solicitation Ordinance was burdensome and unconstitutional.

  • Plaintiffs sought a preliminary injunction.


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Preliminary Injunction Solicitation

  • Fingerprinting requirement.

  • Cash bond in the amount of $1,000.

  • Special license fee of $100 per year (District Court declined to address).


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Litigation Results Solicitation

  • United States District Court granted preliminary injunction, holding that as to the bond and fingerprint requirements, that there was a substantial likelihood of success on the merits.

  • Tenth Circuit Court of Appeals affirmed. Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005).


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Mediation Dynamics Solicitation

  • District Court’s preliminary injunction decision strongly indicated that the Court would find the ordinance unconstitutional.

  • Plaintiffs’ damages claims were weak.

  • 42 U.S.C. § 1983 provides for attorney fees to prevailing plaintiff, even without damages.

  • Continued defense increases attorney fees.

  • Approximately 30 similar suits were pending against municipalities statewide.

  • Unknown amount of potential liability should plaintiffs sue other cities.


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Mediation Results Solicitation(Settlement Agreement)

  • Cash settlement.

  • Defendants agree to adopt Model Ordinance.

  • Plaintiffs release Defendants and all other non-defendant cities who:

    • Immediately cease enforcement of solicitation ordinances other than the Model Ordinance, and

    • Enact the Model Ordinance within 180 days (6 months).


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Model Solicitation Ordinance Solicitation

  • Model Ordinance is a compromise and negotiation in drafting between Plaintiffs’ counsel and Defendants’ counsel.

  • Workable, if far from perfect.

  • The only ordinance that carries with it a bar to suit by Plaintiffs.


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000-002 No Other City License or Approval Required Solicitation

  • “Registered solicitors and persons exempt from registration need not apply for, nor obtain, any other license, permit, or registration from the city to engage in door-to-door solicitation.”


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000-003 Definitions Solicitation

(4) Applicant means an individual who is at least sixteen (16) years of age who applies for a certificate permitting door-to-door solicitation.

(6) BCI means an original or copy, dated no older than 180 days prior to the date of the application, of either (1) a Bureau of Criminal Identification verified criminal history report personal to the Applicant; or (2) verification by the Bureau of Criminal Identification that no disqualifying status exists for the Applicant.


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000-003 Definitions (cont.) Solicitation

(10) Charitable organization includes any person or entity that is:

(A) benevolent, educational, voluntary health, philanthropic, humane, patriotic, religious, or eleemosynary, social welfare or advocacy, public health, environmental or conservation, or civic organization; for the benefit of a public safety, law enforcement, or firefighter fraternal association, or established for any charitable purpose; and

(B) Tax exempt under the Internal Revenue Code


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Disqualifying Status SolicitationConviction (by plea or jury) orPending Criminal Charges for:

  • Felony homicide

  • Physically abusing, sexually abusing, or exploiting a minor

  • Sale or distribution of controlled substances

  • Sexual assault of any kind


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Disqualifying Status Solicitation

  • Felony conviction within last ten years.

  • Incarcerated in federal or state prison within last five years.

  • Conviction within last five years of misdemeanor involving moral turpitude, violent or aggravated conduct towards persons or property.


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Disqualifying Status Solicitation

  • Final civil judgment within five years of fraud, intentional misrepresentation, or a non-dischargeable debt in bankruptcy.

  • Current parole or probation.

  • Outstanding arrest warrant.

  • Current protective order based on physical or sexual abuse.


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000-004 Exemptions Solicitation

  • Prior invitees,

  • State licensees,

  • Deliveries on prior orders,

  • Persons advocating religious belief or political position, and

  • Representatives of charitable organizations.


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000-005 Solicitation Prohibited Solicitation

  • Broad definition:

    • Door-to-door solicitation

    • Home solicitation sale

    • Sale of Goods or Services

  • Includes all methods of payment.

  • Applies whether sale is made or not.

  • Time of payment is immaterial.


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000-007 Application Forms SolicitationEach application shall require disclosure of the following:

  • Review of Written Disclosure information,

  • Contact Information

  • Proof of Identity

  • Proof of Registration with the Department of Commerce

  • Special Events Sales Tax Number

  • Marketing Information


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000-007 Application Forms SolicitationEach application shall require disclosure of the following:

  • Marketing Information

  • BCI Background Check*

  • Responses to Questions Regarding “Disqualifying Status”

  • Fee ($15 is agreed to be reasonable)

  • Execution (signature)


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000-010 Issuance of Certificates Solicitation

  • A temporary (25-day) certificate shall be issued upon:

    • Submission of completed application;

    • Payment of required fee;

    • Proof of identity;

    • Completed application form that does not affirmatively show a disqualifying status;

    • BCI does not show disqualifying status; and

    • Applicant has not previously been denied for a reason that still constitutes a disqualifying status.


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000-010 Issuance of Certificates Solicitation

  • Annual Certificates

  • Within 25 days of issuance of a temporary certificate, the City shall take whatever steps it deems necessary to verify the truthfulness and completeness of the application; and

  • Issue written notice either that the certificate will be issued or that it will be denied, listing grounds for denial.


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000-014 Denial of Certificate Solicitation

  • Temporary certificate shall be denied for failure of any requirement for issuance.

  • Annual certificate shall be denied for:

    • Incomplete or incorrect information on application.

    • Previously unknown or undisclosed disqualifying status.

    • Failure to complete payment of fee.

    • Applicant’s newly disqualifying status since applying.

    • Substantiated Report of misconduct received subsequent to application.


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Notice of Denial or Suspension Solicitation

  • Written notice of denial or suspension shall be sent in the manner indicated on the application, and shall specify grounds and documentation and availability of review, and 10-day period for appeal, and the date the denial or suspension will take effect.

  • Absent exigent circumstances such that continued licensing threatens health, safety or welfare of any individuals or entities within the City, denial or suspension shall not be effective before 2 calendar days after notice is sent.


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000-015 Appeal Solicitation

  • Must be submitted in writing within 10 days.

  • Review by appeals officer is de novo.

  • Decision on appeal must be rendered within 15 calendar days from the date the appeal was taken.


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000-016 Deceptive Soliciting Practices Prohibited Solicitation

  • No materially false or fraudulent statements;

  • Solicitors must immediately disclose

    • Solicitor’s name;

    • Name and address of entity represented; and

    • Purpose of contact.

  • Solicitors shall not represent that certificate implies endorsement by city.


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000-017 No Solicitation Notice Solicitation

  • Occupants may post “no solicitation” notices on or near main entrance door or property line adjacent to sidewalk leading to residence.

  • Solicitors have the responsibility to check for “no solicitation” notice.

  • It is a violation to knock, ring doorbell, or otherwise attempt to attract attention of an occupant of a residence with a no solicitation notice.


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000-018 Duties of Solicitors Solicitation

  • It is a violation to employ a ruse, deception, or fraudulent concealment of a purpose to solicit.

  • Solicitor must immediately and peacefully depart at any time when asked to leave, and not continue repeated soliciting after a person has communicated clearly and unequivocally lack of interest.

  • Solicitor shall not intentionally or recklessly touch another person without consent.

  • Solicitor shall not enter a residence without the resident’s explicit consent.

  • Solicitor shall not use obscene language or gestures.

  • Solicitation only after 9:00 a.m. and before 9:00 p.m.


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000-021 Penalties Solicitation

  • Violation of the ordinance is a class B misdemeanor.


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Issues Solicitation

  • Same business day issuance of temporary certificates and identification badge.

  • Paper carrier seeking to increase subscriptions.

  • Realtors.


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Conclusion Solicitation

  • The Model Solicitation Ordinance is not perfect, but it is a workable compromise between the Kirby litigation plaintiffs and the defendants’ counsel in those cases.

  • The Model Ordinance is not the only ordinance that will pass constitutional scrutiny, but it is the only ordinance to adopt that will bar suit.


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