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 “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.”
Solicitor Litigation Case StudyPacific 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.
Preliminary Injunction • Fingerprinting requirement. • Cash bond in the amount of $1,000. • Special license fee of $100 per year (District Court declined to address).
Litigation Results • 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).
Mediation Dynamics • 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.
Mediation Results(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).
Model Solicitation Ordinance • 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.
000-002 No Other City License or Approval Required • “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.”
000-003 Definitions (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.
000-003 Definitions (cont.) (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
Disqualifying StatusConviction (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
Disqualifying Status • 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.
Disqualifying Status • 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.
000-004 Exemptions • Prior invitees, • State licensees, • Deliveries on prior orders, • Persons advocating religious belief or political position, and • Representatives of charitable organizations.
000-005 Solicitation Prohibited • 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.
000-007 Application FormsEach 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
000-007 Application FormsEach 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)
000-010 Issuance of Certificates • 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.
000-010 Issuance of Certificates • 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.
000-014 Denial of Certificate • 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.
Notice of Denial or Suspension • 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.
000-015 Appeal • 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.
000-016 Deceptive Soliciting Practices Prohibited • 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.
000-017 No Solicitation Notice • 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.
000-018 Duties of Solicitors • 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.
000-021 Penalties • Violation of the ordinance is a class B misdemeanor.
Issues • Same business day issuance of temporary certificates and identification badge. • Paper carrier seeking to increase subscriptions. • Realtors.
Conclusion • 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.