Title
(First Reading) An Ordinance Amending Ordinance 1097-09 and Replacing Section 5-134 of the Code of Ordinances of the City of Foley, Alabama, Relating to Door-to-Door Commercial Solicitation; Establishing Permit, Registration, Enforcement, and Business Accountability Requirements; Protecting Residential Privacy; and Providing for Related Matters
Summary
DESCRIPTION OF TOPIC: The citizens of Foley have requested the Revenue Department to rewrite the Door to Door Solicitors Ordinance, create a registry of non soliciting areas and homes and to establish fines for not abiding by the new ordinance. The Police Chief, Deputy Police Chief, Court Magistrate, Executive Director of Public Safety, Executive Director of Gen Gov, City Prosecutor, and Revenue Director met and discussed changes to the ordinance. The city attorney, Casey Pipes wrote the ordinance with our suggestions in mind.
Budgetary Impact:
Non-Capital Item:
____ Budgeted under account #_______________ (discussion item)
____ Not budgeted, requesting transfer of $__________ from Account #______________ to Account #_____________.**Request to Transfer Departmental Budget Dollars form must be attached**
____ Not budgeted requiring increase to account #___________ in the amount of $____________.**Request to Increase Departmental Budget Dollars form must be attached**
Capital - Departmental **Capital Purchase Worksheet form must be attached**
____ Budgeted under account #______________ for $_________ and described in budget as ________________________. Additional amount needed, if any: Increase in budget of $_________ OR, transfer of $________ from Account #____________ to Account #_____________**Request to Increase OR Request toTransfer Departmental Budget Dollars form must be attached**
____ Not Budgeted - account #____________ requires budget increase of $_____________.**Request to Increase Departmental Budget Dollars form must be attached**
Capital Project - **If requesting to start a project, a Capital Project Worksheet form must be attached**
In current year Capital Projects Plan:
____ Yes, described as Pavilion, planned amount $___, requesting $___ as total project estimate, including contingencies, under account #400-5090-5117 Pavilion.
_____ No, requesting $___________ as total project estimate, including contingencies, under account #____________________.
_____ Yes, requesting an increase of $___________ to an already approved project titled ________________________ that is being tracked under Account No. ___________________.
_____ No, requesting an increase of $__________ to an already approved project titled _______________________ that is being tracked under Account No. _________________.
Body
WHEREAS, the residents of the City of Foley have a reasonable expectation of privacy, security, and peaceful enjoyment within the boundaries of their own homes and private property; and
WHEREAS, the City of Foley Council has a substantial and legitimate government interest in protecting the health, safety, and welfare of its residents; and
WHEREAS, the unregulated practice of door-to-door commercial solicitation and canvassing can lead to the harassment of residents, deceptive or fraudulent sales practices, and unreasonable intrusions into residential privacy; and
WHEREAS, the City of Foley Council recognizes and respects the First Amendment rights of individuals and organizations to engage in religious, political, and charitable speech; and
WHEREAS, the United States Supreme Court has established that municipalities may enact narrowly tailored, content-neutral time, place, and manner restrictions on solicitation to protect public safety and residential privacy; and
WHEREAS, establishing a registration process, limiting the hours of solicitation, and enforcing “No Soliciting” signage provides a balanced approach that protects residents while preserving constitutional avenues for communication; and
WHEREAS, the City of Foley has received complaints from residents regarding aggressive, deceptive, and unwanted commercial solicitation at their homes; and
WHEREAS, requiring commercial solicitors to obtain permits and display identification protects residents from fraud and enables effective law enforcement; and
WHEREAS, holding sponsoring businesses accountable for the conduct of their solicitors promotes compliance and provides residents with meaningful recourse; and
WHEREAS, the commercial speech doctrine under the First Amendment permits reasonable regulation of speech that proposes a commercial transaction, and such regulation is subject to intermediate rather than strict constitutional scrutiny; and
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FOLEY, ALABAMA, AS FOLLOWS:
Section 1. Authority
This Ordinance is adopted under the City’s police powers, business licensing authority, and authority to protect public health, safety, welfare, and residential privacy, and to regulate commercial activity within the City.
Section 2. Legislative Findings and Purpose
A. Findings
The City Council finds and declares that:
1. The City has a substantial and legitimate interest in protecting residents from fraud, deception, intimidation, trespass, and repeated unwanted intrusion arising from uninvited commercial door-to-door solicitation.
2. The City has a further legitimate interest in ensuring that persons engaging in commercial solicitation at residences are identifiable, accountable, and subject to effective administrative and criminal enforcement.
3. The City’s existing regulation of door-to-door solicitation should be revised and strengthened to improve enforceability, establish clear standards, provide business accountability, and create graduated consequences for repeat noncompliance.
4. The City recognizes that certain forms of door-to-door activity, including religious, political, ideological, and other constitutionally protected noncommercial canvassing, are subject to heightened constitutional protection and must not be burdened by regulatory requirements applicable to commercial solicitation except as otherwise permitted by law.
5. The City also recognizes that bona fide charitable nonprofit activity may implicate protected expressive and associational interests and should be treated separately from ordinary commercial solicitation, subject to generally applicable laws concerning fraud, trespass, loitering, disorderly conduct, safety, and public peace.
6. Posted “no soliciting” notices, neighborhood and subdivision restrictions, and individual household opt-outs are reasonable and necessary methods of protecting residential privacy and quiet enjoyment.
7. The City further finds that commercial solicitors frequently operate through sponsoring businesses, and effective enforcement requires direct accountability for the sponsoring business and its owners, managers, officers, and designated responsible parties.
8. The City finds that this Section regulates commercial solicitation, a category of speech subject to reduced constitutional protection, and that the distinction drawn between commercial solicitation and constitutionally protected noncommercial canvassing is intended to track the long-recognized commercial-speech doctrine rather than to regulate any speaker based on viewpoint, subject matter, or the content of any noncommercial message. The City further finds that the requirements of this Section directly advance the City’s substantial interests in preventing fraud, deception, trespass, and unwanted intrusion, in protecting residential privacy and safety, and in ensuring accountability of solicitors, and that these requirements are no more extensive than necessary to serve those interests.
B. Purpose
The purpose of this Ordinance is to:
• Regulate commercial door-to-door solicitation to the maximum extent permitted by law;
• Protect residents’ privacy, safety, and quiet enjoyment of their homes;
• Require permits, credentials, and background screening for commercial solicitors;
• Hold sponsoring businesses accountable for the conduct of their personnel;
• Establish objective standards for permit issuance, denial, suspension, revocation, and appeal;
• Provide criminal and administrative remedies for violations; and
• Preserve constitutionally protected noncommercial canvassing and other protected activity.
Section 3. Replacement of Existing Code Section
Section 5-134 of the Code of Ordinances of the City of Foley, Alabama, is hereby amended, restated, and replaced in its entirety to read as follows:
----
Sec. 5-134. Door-to-Door Commercial Solicitation
(a) Definitions
For purposes of this Section, the following words and phrases shall have the meanings set forth below:
Term - Definition
Applicant: Any individual or entity applying for a permit under this Section to perform solicitations regulated hereby.
City: The City of Foley, Alabama.
Client Business: Any person, group, organization, company, or entity that hires, engages or contracts with a sponsoring business or solicitor to conduct commercial solicitation on its behalf, where the goods, services, or other offerings being marketed or sold are those of the client business rather than, or in addition to, those of the sponsoring business.
Commercial Solicitation: Going upon or approaching a residence or other private residential premises, without prior request or invitation from the owner or lawful occupant, to sell, offer to sell, take orders for, advertise, lease, or seek commitments for any goods, services, or other thing of value for commercial benefit. The term includes efforts to arrange future sales presentations, appointments, demonstrations, inspections, or estimates for a commercial purpose.
Constitutionally Protected Noncommercial Canvassing: Door-to-door activity undertaken for religious, political, ideological, educational, or issue-advocacy purposes, where the primary purpose is communication of ideas, distribution of free literature, petitioning, advocacy, or other protected expression rather than the commercial sale of goods or services.
Director: The City official designated by the Mayor or City Administrator to administer permits under this Section, including any designee in the Revenue Department, Police Department, or other authorized department.
Household Opt-Out Registry: The City-maintained listing of individual residences that have requested no commercial solicitation.
Neighborhood or Subdivision No-Solicitation Registry: The City-maintained list of neighborhoods, subdivisions, gated communities, or residential developments for which the City has received documentation or verification that commercial solicitation is prohibited or restricted by posted notice at entrances or other common access points.
Permit: A City-issued authorization allowing a named individual to engage in commercial solicitation within the City, subject to the limitations of this Section.
Permit Badge: The City-issued credential, in physical or approved electronic form, identifying the permitted solicitor, permit number, sponsoring business (if any), client business (if any), and permit expiration date.
Posted No-Solicitation Area: Any residence, building, development, or access point where a sign or notice reasonably communicates that soliciting, peddling, or similar uninvited commercial contact is prohibited or not invited. The term includes properties or areas listed on the Household Opt-Out Registry or the Neighborhood or Subdivision No-Solicitation Registry.
Private Residence: Property zoned for residential use or used as a residence, including single-family homes, duplexes, apartments, condominiums, townhomes, mobile homes, and multifamily dwellings, together with associated yards, driveways, porches, and common entrances.
Responsible Party: A natural person designated by a sponsoring business on its permit application who is authorized to receive notices, appear for hearings, respond to complaints, ensure compliance by all solicitors operating on behalf of the sponsoring business, and bind the business in administrative proceedings under this Section.
Solicitor: Any person who engages in commercial solicitation, whether as an employee, agent, contractor, representative, or other person acting for a commercial purpose or on behalf of a sponsoring business.
Sponsoring Business: Any entity, including a sole proprietorship, partnership, corporation, limited liability company, association, or franchise, on whose behalf a solicitor acts, directly or indirectly, in conducting commercial solicitation.
Uninvited: Not previously requested, scheduled, initiated, or expressly invited by the owner or lawful occupant of the residence.(b) General Rule; Scope of Regulation
1. Commercial solicitation at private residences within the City is prohibited unless expressly authorized by a valid permit issued pursuant to this Section and a valid City business license held by the sponsoring business, if applicable.
2. Any commercial solicitation conducted in violation of this Section is declared to be unlawful and a public nuisance subject to abatement, criminal prosecution, and administrative enforcement.
3. This Section regulates commercial door-to-door solicitation and shall be interpreted and enforced in a manner consistent with the federal and state constitutions.
4. Constitutional Construction. This Section shall be construed and applied as a regulation of commercial speech subject to the standards governing commercial-speech regulation under the federal and state constitutions, and not as a regulation of the content, viewpoint, or subject matter of any noncommercial expression. The commercial/noncommercial distinction drawn by this Section requires only a commonsense factual determination of whether a person is proposing or facilitating a commercial transaction, and shall not be construed to require any official to evaluate the ideas, message, or viewpoint expressed. To the extent any provision of this Section would otherwise be construed to reach constitutionally protected noncommercial canvassing or to require strict scrutiny, it shall be narrowed and applied only to the extent consistent with the constitution so as to preserve the validity of this Section, consistent with the severability provisions of the adopting Ordinance.
(c) Exemptions; Constitutional Safeguards
1. Constitutionally protected noncommercial canvassing shall not be subject to the permit, badge, business license, fee, or background-check requirements of this Section solely by reason of that person engaging in protected speech.
2. Bona fide charitable nonprofit activity that is not primarily commercial in nature shall not be subject to the permit, badge, business license, or fee requirements of this Section solely by reason of charitable or nonprofit status; however, such persons remain subject to:
(i) generally applicable laws relating to trespass, fraud, loitering, disorderly conduct, obstruction, safety, and refusal to leave private property;
(ii) posted no-solicitation notices to the extent enforceable under applicable law; and
(iii) reasonable time, place, and manner limitations otherwise provided by law.
Nothing in this Section shall be construed to authorize fraud, trespass, aggressive conduct, refusal to leave, misrepresentation, or entry into areas otherwise closed to the public.
Any person claiming exemption under subsection (c)(2) of this Section bears the burden of establishing that the activity is exempt from the permitting requirements of this Section. This provision shall not be construed to require persons engaged in constitutionally protected noncommercial canvassing to obtain pre-approval or affirmatively prove protected status before engaging in such activity.
(d) Sponsoring Business License and Registration Required
1. No sponsoring business shall cause, allow, direct, or permit any person to engage in commercial solicitation within the City unless: (i) the sponsoring business holds a current and valid City business license, if required by law; and (ii) each individual solicitor has been issued a current permit under this Section.
2. A sponsoring business shall register with the City:
• its legal name and all trade names;
• principal business address;
• telephone number and email address;
• responsible party name and contact information;
• roster of all solicitors proposed to operate in the City; and
• identification of any client business on whose behalf solicitors will be conducting commercial solicitation, together with written authorization from each such client business;
• any vehicles regularly used in connection with solicitation activities, if required by the application.
3. The sponsoring business shall maintain an updated roster of all solicitors, including the client business (if any) for which each solicitor is conducting commercial solicitation, and shall notify the City within three (3) business days of any addition, removal, suspension, termination, or disqualification of a solicitor, or any change in client business affiliation.
(e) Individual Permit Required
1. No individual shall engage in commercial solicitation within the City without first obtaining a permit issued under this Section. The Director shall approve or deny a complete application within fourteen (14) business days of receipt. Failure to act within this period shall constitute a denial subject to administrative appeal under subsection (q).
2. An individual permit shall be issued only to the named individual applicant and shall not be transferable.
3. A permit authorizes only the activity described in the application and only while the permit holder is acting on behalf of the sponsoring business (if any) and client business (if any) identified in the permit file.
4. A change in sponsoring business automatically suspends the permit unless and until the City approves an updated registration.
5. A change in client business requires written notice to the City and updated authorization from the new client business before the solicitor may engage in commercial solicitation on behalf of that client business.
(f) Application Requirements
1. Each applicant for an individual permit shall submit, on forms approved by the City, at minimum:
• full legal name and any aliases or prior names used within the preceding five (5) years;
• date of birth;
• current residential address and mailing address, if different;
• telephone number and email address, if any;
• government-issued photo identification information;
• sponsoring business information and client business information (if applicable);
• written authorization from the client business, if any, confirming that the client business has engaged the sponsoring business and authorized the named solicitor to conduct commercial solicitation on its behalf;
• recent photograph suitable for credentialing;
• proposed dates and areas of solicitation;
• description of goods or services to be marketed or sold;
• disclosure of relevant criminal convictions within the preceding ten (10) years, pending criminal charges involving fraud, theft, violence, trespass, burglary, robbery, identity-related offenses, deceptive trade practices, or offenses involving danger to persons;
• written authorization for criminal history and background review;
• acknowledgment of the operating rules established by this Section; and
• any additional objective information reasonably necessary for administration and enforcement.
2. Each sponsoring business application shall include, at minimum:
• legal entity name and status;
• principal business address and local contact information;
• City business license number, if applicable;
• designation of the responsible party;
• roster of all proposed solicitors;
• certification that all listed solicitors are employees, agents, contractors, or representatives of the sponsoring business and, if a client business is involved, identification of each client business and confirmation that the sponsoring business is authorized to conduct commercial solicitation on behalf of each such client business;
• acknowledgment of accountability for all solicitation activity undertaken on its behalf; and
• such additional objective information as the City reasonably requires for administration and enforcement.
(g) Background Check Authorization and Standards
1. As a condition of permit consideration, each individual applicant shall execute a written authorization allowing the City to obtain, review, and rely upon criminal history record information, including local, state, and national background information to the extent permitted by law.
2. The City may require fingerprints, photographs, and such releases, consents, and identifying information as are reasonably necessary to conduct the background review.
3. The applicant shall be responsible for the actual cost of any background check, fingerprint processing, or third-party screening fee lawfully assessed by the City.
4. The City may consider criminal history only to the extent reasonably related to the applicant’s fitness to engage in uninvited commercial contact at private residences.
5. Convictions or pending matters that may be considered include, but are not limited to:
• offenses involving fraud, theft, forgery, deception, or identity theft; burglary, robbery, trespass, or unlawful entry into residences; stalking, harassment, assault, or other crimes against persons; crimes against children or sex offenses; or other offenses bearing a direct relationship to residential solicitation;
• crimes involving moral turpitude to the extent such crimes are reasonably related to honesty, safety, trustworthiness, or fitness for door-to-door commercial activity; and
• repeated violations of solicitation, peddling, business license, consumer protection, or similar regulatory laws.
6. The City shall not deny a permit solely on the basis of an arrest not resulting in a pending charge or disposition relevant to the application.
7. The City may consider the nature of the offense, the date of conviction, evidence of rehabilitation, pattern of conduct, and relationship of the offense to the duties and risks associated with uninvited commercial solicitation at residences.
(h) Permit Badge and Identification Requirements
1. Each permitted solicitor shall be issued a City permit badge or other City-approved credential.
2. While engaged in commercial solicitation, the solicitor shall:
• carry the permit badge and government-issued photo identification;
• display the permit badge conspicuously on the outermost garment above the waist; and
• produce the permit badge and identification upon request of any law enforcement officer, code enforcement officer, or resident with whom the solicitor is attempting to engage.
3. A permit badge shall identify, at minimum:
• the name or permit number of the solicitor;
• the sponsoring business (if any) and the client business (if any);
• the permit expiration date; and
• a statement or notation that the permit does not constitute City endorsement.
(i) Operating Hours
No person shall engage in commercial solicitation within the City before 9:00 a.m. or after 7:00 p.m., local time, unless a more restrictive schedule is imposed as a condition of permit issuance or by other applicable law.
(j) Posted No-Solicitation Areas; Registry; Household Opt-Outs
1. No solicitor shall enter, approach, remain upon, attempt to solicit within, or seek access to any posted no-solicitation area for the purpose of commercial solicitation.
2. The City shall establish and maintain:
• a Neighborhood or Subdivision No-Solicitation Registry; and
• a Household Opt-Out Registry for individual residences requesting no commercial solicitation.
3. The Director may establish reasonable administrative procedures for:
• entry onto either registry;
• verification of posted signage or owner/association request;
• periodic updating of registry information; and
• removal from either registry upon request or changed circumstances.
4. Inclusion on a registry is intended as an administrative enforcement aid and shall not be the exclusive method of proving that a property or area was posted or otherwise closed to commercial solicitation.
5. A solicitor and sponsoring business are charged with notice of the registries as a condition of permitting and shall be responsible for obtaining and complying with all current registry information supplied by the City.
(k) Immediate Departure Upon Request
A solicitor shall immediately and peacefully leave private property when requested to do so by the owner, occupant, property manager, homeowners’ association representative with authority over common access, law enforcement officer, or any other person with apparent lawful authority over the premises.
(l) Prohibited Conduct
No solicitor or sponsoring business shall, directly or indirectly:
1. knowingly make any false, misleading, deceptive, or materially incomplete representation concerning:
• the solicitor’s identity;
• the sponsoring business or client business;
• the purpose of the visit;
• the nature, quality, source, price, or availability of goods or services;
• any claimed appointment, referral, prior relationship, or neighborhood authorization;
• any claim of urgency, scarcity, emergency, affiliation, certification, or endorsement; or
• the effect of signing any document or agreeing to any purchase;
2. represent, expressly or by implication, that the City endorses, sponsors, approves, recommends, insures, certifies, or guarantees the solicitor, sponsoring business, or offered goods or services;
3. use an expired, altered, borrowed, forged, suspended, or revoked permit or badge;
4. engage in commercial solicitation while intoxicated or under the influence of any substance impairing safe and lawful conduct;
5. obstruct traffic, block ingress or egress, ignore “no trespass,” “no soliciting,” or equivalent notices, or otherwise create a nuisance;
6. use threatening, abusive, intimidating, coercive, or harassing conduct;
7. continue solicitation after any refusal, nonresponse, request to leave, or communication that the contact is unwelcome;
8. enter a fenced area, gated area, porch, garage, backyard, or other portion of residential property not reasonably open to the public for transient approach;
9. leave promotional material in a manner prohibited by law or likely to create litter or property intrusion; or
10. aid, abet, direct, encourage, or knowingly benefit from another’s violation of this Section.
(m) No City Endorsement
Issuance of a permit under this Section is solely an administrative determination of eligibility and shall not be construed as City endorsement, approval, recommendation, or certification of any solicitor, sponsoring business, product, or service.
(n) Business Accountability and Vicarious Responsibility
1. A sponsoring business is responsible for the acts and omissions of each of its solicitors, employees, agents, contractors, subcontractors, dealers, representatives, or other persons acting on its behalf in connection with commercial solicitation within the City.
2. Any violation of this Section by an individual solicitor shall constitute a violation by the sponsoring business if the solicitor was acting on behalf of, for the benefit of, under the direction of, or within the course and scope of engagement for the sponsoring business. A sponsoring business may assert as an affirmative defense that it maintained and enforced reasonable policies and procedures designed to ensure compliance with this Section and that the violation occurred despite such measures.
3. The City may deny, suspend, revoke, or refuse renewal of the permit of any individual solicitor based on the conduct of the sponsoring business, and may deny, suspend, revoke, or refuse renewal of the sponsoring business registration or related City business license to the extent permitted by law based on the conduct of any solicitor acting on its behalf.
4. Failure of the sponsoring business to train, supervise, remove, or report noncompliant solicitors shall be grounds for administrative action under this Section.
(o) Denial of Permit or Registration
The Director may deny an application upon written findings that one or more of the following grounds exists:
1. the application is materially incomplete, false, misleading, or fraudulent;
2. the applicant failed to provide required identification, releases, photographs, fingerprint information, roster information, client business information or authorization (if applicable), or fees;
3. the applicant lacks a required City business license, if applicable;
4. the applicant or sponsoring business has outstanding unpaid fines, penalties, or final administrative charges owed to the City related to solicitation, business licensing, code enforcement, or similar matters;
5. the applicant has been convicted of, or is currently charged with, a disqualifying offense reasonably related to residential commercial solicitation as described in subsection (g);
6. the applicant has had a solicitation permit, peddler’s license, transient vendor permit, or similar authorization suspended, revoked, or denied for cause by this or another jurisdiction within the preceding three (3) years;
7. the sponsoring business has demonstrated a pattern of violations by its personnel;
8. the applicant or sponsoring business has failed to comply with a prior suspension, revocation, cease-and-desist order, or remedial condition imposed by the City; or
9. issuance would otherwise violate this Section or applicable law.
(p) Suspension and Revocation
1. The Director may suspend or revoke an individual permit or sponsoring business registration for:
• any ground that would support denial;
• any violation of this Section;
• any material misrepresentation in the application process;
• any arrestable offense committed in the course of solicitation activity;
• entry into posted no-solicitation areas;
• refusal to leave upon request;
• use of deception, impersonation, or false credentials; or
• repeated complaints substantiated by investigation.
2. Immediate temporary suspension may be imposed upon a finding that continued solicitation presents an imminent threat to public safety, involves fraud or impersonation, or reflects intentional disregard of posted no-solicitation restrictions. In such case, the City shall provide written notice within two (2) business days and an opportunity for a post-suspension hearing within ten (10) business days of the suspension.
3. Revocation of a sponsoring business registration may extend to all individual permits operating under that business when necessary to protect the public or enforce this Section.
(q) Administrative Appeal
1. Any applicant or permit holder aggrieved by a denial, suspension, revocation, or refusal to renew may file a written appeal with the City within ten (10) business days after written notice of the decision is delivered personally, by certified mail to the address on the application, or by email to the address provided in the application.
2. The appeal shall state the grounds relied upon and may include supporting documents.
3. The appeal shall be heard by the municipal official, board, or hearing officer designated by the City within thirty (30) business days of the filing of the appeal, unless the appellant consents to an extension.
4. The appellant shall have an opportunity to appear, present evidence, and respond to the stated grounds.
5. A written decision shall be issued affirming, reversing, or modifying the action appealed from.
6. Filing an appeal does not automatically stay an emergency suspension based on public safety, fraud, or similar urgent grounds unless otherwise ordered by the hearing authority.
(r) Duty to Cooperate with Enforcement
Applicants, permit holders, and sponsoring businesses shall cooperate with lawful City investigations, including verification of identity, permit status, roster membership, business affiliation, and compliance with this Section.
(s) Loitering in Posted Non-Soliciting Areas
1. It shall be unlawful for any person to remain, wait, wander, station, idle, congregate, or loiter in or near a posted no-solicitation area for the purpose of initiating, attempting, or facilitating commercial solicitation after notice that solicitation is prohibited or after being directed to leave.
2. A violation of this subsection may be enforced under this Section and in conjunction with any other applicable provision of the Code of Ordinances, including the City’s existing loitering ordinance, as amended.
3. Nothing in this subsection shall be construed to prohibit lawful travel, visitation, delivery, emergency response, or other lawful presence unrelated to commercial solicitation.
(t) Permit Duration and Renewal
1. A permit issued under this Section shall expire on the date stated on the permit, which shall not exceed twelve (12) months from the date of issuance.
2. The City may establish by administrative rule:
• permit terms;
• renewal procedures;
• replacement badge procedures;
• update requirements for roster changes; and
• reasonable administrative fees related to processing, credentialing, and background checks.
2. Fees shall be set in an amount reasonably related to administrative and enforcement costs and shall not be imposed for the purpose of suppressing protected speech.
(u) Criminal Enforcement; Arrestable Misdemeanor
1. Any person who violates any provision of this Section commits a misdemeanor offense.
2. Each day of violation, and each separate residence, property, or contact involved in a violation, may constitute a separate municipal offense.
3. To the fullest extent authorized by Alabama law, and consistent with the limits applicable to municipal ordinance violations under Ala. Code 11-45-9 and other applicable law, a person convicted of violating this Section shall be punishable, for each violation, by:
• a fine not to exceed five hundred dollars ($500.00);
• imprisonment for a period not to exceed one hundred eighty (180) days;
• any combination thereof, together with court costs, subject to the limits applicable to municipal ordinance violations under Alabama law.
4. Violations of this Section are intended to be fully enforceable as arrestable municipal offenses to the extent permitted by Alabama law and applicable criminal procedure.
(v) Graduated Penalties for Repeat Offenders
In addition to any other remedy authorized by law, penalties for violations of this Section shall increase with repetition as follows:
1. First Violation for Individuals: Citation or arrest; prosecution; possible permit suspension; mandatory review of permit status
2. Second Violation within 24 months for Individuals: Citation or arrest; prosecution; suspension or revocation may be imposed
3. Third or Subsequent Violation within 24 months for Individuals: Citation or arrest; prosecution; presumptive revocation and ineligibility for reapplication for a period set by the City.
4. First Violation for Sponsoring Business: Warning or citation; administrative review; corrective action plan may be required
5. Second Violation within 24 months for Sponsoring Business: Suspension of business license registration, roster restrictions, or probationary conditions
6. Third or Subsequent Violation within 24 months for Sponsoring Business: Revocation or nonrenewal of registration; recommendation for related business license action to the extent permitted by law.
The City may consider aggravating and mitigating factors, including fraud, trespass, threats, vulnerability of victims, neighborhood impact, and prior disciplinary history.
(w) Corporate and Entity Liability
1. A corporation, limited liability company, partnership, association, or other entity that violates this Section is subject to prosecution and punishment by fine and costs as permitted by law.
2. No provision of this Section shall be construed to authorize imprisonment or hard labor for a non-natural person.
3. Entity liability under this subsection is cumulative of, and not exclusive of, any administrative remedy imposed against a sponsoring business, responsible party, or individual solicitor.
(x) Administrative Remedies
In addition to criminal enforcement, the City may pursue one or more of the following administrative remedies:
• denial, suspension, revocation, or nonrenewal of individual permits;
• denial, suspension, revocation, or nonrenewal of sponsoring business registration;
• issuance of cease-and-desist orders;
• removal of solicitors from an approved roster;
• ineligibility periods for reapplication;
• referral for business license action to the extent permitted by law; and
• any other lawful administrative enforcement measure reasonably necessary to effectuate this Section.
(y) Nuisance Abatement
Commercial solicitation conducted in violation of this Section is hereby declared a nuisance subject to abatement by the City through lawful enforcement procedures in addition to criminal and administrative remedies.
(z) Rules and Forms
The Director is authorized to develop and revise administrative forms, permit applications, roster forms, badge formats, registry procedures, and reasonable implementing rules consistent with this Section.
Section 4. Repealer; Conflicting Ordinances
All ordinances, resolutions, orders, or parts thereof in conflict with this Ordinance are hereby repealed to the extent of such conflict, including the prior ordinance(s) that caused the creation of the previous version of Section 5-134, Code of the City of Foley.
Section 5. Severability
If any section, subsection, sentence, clause, phrase, or provision of this Ordinance is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, which shall remain in full force and effect. The City Council declares that it would have adopted this Ordinance and each part thereof irrespective of the invalidity of any one or more parts.
Section 6. Codification
It is the intention of the City Council that the provisions of this Ordinance shall become and be made a part of the Code of Ordinances of the City of Foley, Alabama, and that the sections of this Ordinance may be renumbered, relettered, or otherwise codified as necessary to accomplish that intent.
Section 7. Effective Date
This Ordinance shall become effective thirty (30) days after its adoption and publication as required by law. During this period, the City shall accept permit applications under the new requirements, and any person lawfully operating under the prior version of Section 5-134 may continue to do so pending processing of a timely-submitted application.