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HomeMy WebLinkAboutORDINANCE 5873113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Ordinance: 5873 File Number: 2016-0205 AMEND CHAPTER 116: DOOR TO DOOR SOLICITATION: AN ORDINANCE TO AMEND CHAPTER 116: DOOR TO DOOR SOLICITATION OF THE FAYETTEVILLE CODE BY REPEALING § 116.01, ENACTING A REPLACEMENT § 116.01 AND BY AMENDING THE DEFINITION OF SOLICITOR IN § 116.02 (A) (4) WHEREAS, the owners and residents of private residences in Fayetteville have constitutional rights to occupy and control their private homes and prohibit uninvited and unwelcome private citizens from disturbing the quiet enjoyment of their private residences and from invading their constitutional privacy rights; and WHEREAS, if the owner or resident of a private residence conspicuously posts "No Soliciting," "No Trespassing" or similar warning sign in a conspicuous location near the usual means of ingress onto the residential property or on or near the front door of the residence, a solicitor or peddler who ignores such sign and goes upon the private residential property has committed an intentional trespass and violation of the home owner's or resident's constitutional rights of privacy and property; and WHEREAS, no person's right to the free exercise of their religion or their free speech is superior to a private home owner's constitutional right of privacy at his or her residence and constitutional right to control their own private property to the exclusion of other private citizens; and WHEREAS, § 116.02 (A) (4) Solicitor needs to include within its definition a person who requests or accepts donations so homeowners will be protected from not only those seeking to sell magazines or other merchandise, but also those soliciting donations of money. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF Page 1 Printed on 5118116 File Number 2016-0205 Ordinance: 5873 FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.01 in its entirety and enacts a replacement § 116.01 as follows: "§ 116.01 Going Upon Private Residential Property (A) Honoring Fayetteville Citizens' Private Property And Privacy Rights. No solicitor or peddler not invited by the owner or legal tenant of a private residence shall enter upon such private residence, knock on the door, ring the doorbell or otherwise attempt to gain admittance or ask questions or converse with the private residence's occupant(s) if the owner or legal tenant has posted at or near the entry of the residence or conspicuously placed at or near the usual means of ingress toward the home, a sign or decal bearing the words "no soliciting", "no trespassing" or other words of similar import. Section 2. That the City Council of the City of Fayetteville, Arkansas hereby amends § 116.02 (A) (4) by repealing the first sentence in its entirety and enacting the following to replace that first sentence: "(4) Solicitor means any person who goes to the door of any private residence in the city, not having been invited by the occupant thereof, for the purpose: (a) of taking or intending to take orders for the sale of services or the sale of goods, magazines, wares, merchandise or other personal property of any nature; or (b) of seeking or accepting donations or making any other requests for money or other things of value." The remaining second sentence of § 116.02 (A)(4) shall be included as a new subsection (c). Section 3. That the City Council of the City of Fayetteville, Arkansas hereby amends § 116.02 (B) by renaming this subsection "Obtaining `no soliciting' `decal or sign" and amending the first sentence to read: "The Planning Department shall provide any resident of the city a decal or sign which reads `no soliciting."' Section 4. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.02 (F) Penalty and enacts the following replacement section: "(F) Penalty. A violation of § 116.01 and § 116.02 (E) (2) and (8) shall support a homeowner's or lawful tenant's right to seek a charge of criminal trespass from the City Prosecutor. A violation of any other provision in § 116.02 shall be punishable pursuant to § 10.99 of the Page 2 Printed on 5118116 File Number., 2016-0205 Ordinance: 5873 Fayetteville Code." Section 5. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.02 (H) and (I), enacts a replacement (H) as shown below and re -letters (J) to (1): "(H) Exemptions for free speech rights and for Fayetteville children through High School senior status. (1) As long as a person is not acting as a solicitor or peddler and is exercising only free speech rights, the person shall be exempt from all permitting requirements and prohibitions of this section, but should honor the reasonable time limits of (E) (3) and must obey a homeowner's or tenant's request to leave pursuant to (E) (8). (2) Fayetteville children through high school senior status must abide by the restrictions found in (E)(2)(3)(4) and (8) but are otherwise exempt from the remainder of this chapter." PASSED and APPROVED on 5/17/2016 Page 3 Attest: r Sondra E. Smith, City Clerk Treasurer �ti►ltiaifri��� " FAYETTEVILLE Nxli Printed on 5118116 City of Fayetteville, Arkansas Text File --- File Number: 2016-0205 Agenda Date: 5/17/2016 Version: 1 In Control: City Council Meeting Agenda Number: B. 3 AMEND CHAPTER 116: DOOR TO DOOR SOLICITATION: 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Status: Passed File Type: Ordinance AN ORDINANCE TO AMEND CHAPTER 116: DOOR TO DOOR SOLICITATION OF THE FAYETTEVILLE CODE BY REPEALING § 116.01, ENACTING A REPLACEMENT § 116.01 AND BY AMENDING THE DEFINITION OF SOLICITOR 1N § 116.02 (A) (4) (LEFT ON FIRST READING) WHEREAS, the owners and residents of private residences in Fayetteville have constitutional rights to occupy and control their private homes and prohibit uninvited and unwelcome private citizens from disturbing the quiet enjoyment of their private residences and from invading their constitutional privacy rights; and WHEREAS, if the owner or resident of a private residence conspicuously posts "No Soliciting," "No Trespassing" or similar warning sign in a conspicuous location near the usual means of ingress onto the residential property or on or near the front door of the residence, a solicitor or peddler who ignores such sign and goes upon the private residential property has committed an intentional trespass and violation of the home owner's or resident's constitutional rights of privacy and property; and WHEREAS, no person's right to the free exercise of their religion or their free speech is superior to a private home owner's constitutional right of privacy at his or her residence and constitutional right to control their own private property to the exclusion of other private citizens; and WHEREAS, § 116.02 (A) (4) Solicitor needs to include within its definition a person who requests or accepts donations so homeowners will be protected from not only those seeking to sell magazines or other merchandise, but also those soliciting donations of money. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.01 in its entirety and enacts a replacement § 116.01 as follows: "§ 116.01 Going Upon Private Residential Property (A) Honoring Fayetteville Citizens' Private Property And Privacy Rights. City of Fayetteville, Arkansas Page 1 Printed on 511812016 File Number.- 2016-0205 No solicitor or peddler not invited by the owner or legal tenant of a private residence shall enter upon such private residence, knock on the door, ring the doorbell or otherwise attempt to gain admittance or ask questions or converse with the private residence's occupant(s) if the owner or legal tenant has posted at or near the entry of the residence or conspicuously placed at or near the usual means of ingress toward the home, a sign or decal bearing the words "no soliciting", "no trespassing" or other words of similar import. Section 2. That the City Council of the City of Fayetteville, Arkansas hereby amends § 116.02 (A) (4) by repealing the first sentence in its entirety and enacting the following to replace that first sentence: "(4) Solicitor means any person who goes to the door of any private residence in the city, not having been invited by the occupant thereof, for the purpose: (a) of taking or intending to take orders for the sale of services or the sale of goods, magazines, wares, merchandise or other personal property of any nature; or (b) of seeking or accepting donations or making any other requests for money or other things of value." The remaining second sentence of § 116.02 (A)(4) shall be included as a new subsection (c). Section 3. That the City Council of the City of Fayetteville, Arkansas hereby amends § 116.02 (B) by renaming this subsection "Obtaining `no soliciting' `decal or sign"' and amending the first sentence to read: "The Planning Department shall provide any resident of the city a decal or sign which reads `no soliciting."' Section 4. That the City Council of the City of Fayetteville, Arkansas hereby repeals §116.02 (F) Penalty and enacts the following replacement section: "(F) Penalty. A violation of § 116.01 and § 116.02 (E) (2) and (8) shall support a homeowner's or lawful tenant's right to seek a charge of criminal trespass from the City Prosecutor. A violation of any other provision in § 116.02 shall be punishable pursuant to § 10.99 of the Fayetteville Code." Section 5. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.02 (H) and (I), enacts a replacement (H) as shown below and re -letters (J) to (I): "(H) Exemptions for free speech rights and for Fayetteville children through High School senior status. (1) As long as a person is not acting as a solicitor or peddler and is exercising only free speech rights, the person shall be exempt from all permitting requirements and prohibitions of this section, but should honor the reasonable time limits of (E) (3) and must obey a homeowner's or tenant's request to leave pursuant to (E) (8). (2) Fayetteville children through high school senior status must abide by the restrictions found in (E)(2) (3)(4) and (8) but are otherwise exempt from the remainder of this chapter." City of Fayetteville, Arkansas Page 2 Printed on 5/18/2016 Legistar ID No.: AGENDA REQUEST FORM FOR: Council Meeting of May 3, 2016 FROM: City Council Member Adella Gray City Council Member Alan Long ORDINANCE OR RESOLUTION TITLE AND SUBJECT: 2016-0205 AN ORDINANCE TO AMEND CHAPTER 116: DOOR TO DOOR SOLICITATION OF THE FAYETTEVILLE CODE BY REPEALING § 116.01, ENACTING A REPLACEMENT § 116.01 AND BY AMENDING THE DEFINITION OF SOLICITOR IN § 116.02 (A) (4) APPROVED FOR AGENDA ember Adella Ciy City Council Member Alan Long f City Attorney Kit Williams (as to form) /X D to Date " 1 1 1 Date DEPARTMENTAL CORRESPONDENCE OFFICE OF THE CITY ATTORNEY TO: Mayor Jordan City Council CC: Don Marr, Chief of Staff Chief Tabor FROM: Kit Williams, City Attorney DATE: April 12, 2016 RE: Proposed amendment to protect homeowners' right of privacy Kit Williams City Attorney Blake Pennington Assistant City Attorney Patti Mulford Paralegal The changes proposed for §116.01 and 116.02 of the Door to Door Solicitation Chapter are designed only to protect the privacy rights of Fayetteville homeowners who have properly posted their residences for "No Soliciting." Therefore, it is not the City government, but the homeowner who is asserting his or her right to privacy against someone soliciting sales or donations. The changes allow the City government the right to support a homeowner's demand for privacy only if the home owner has taken the affirmative step to post his or her residential property "No Soliciting." The preferable criminal charge if someone disobeys a homeowner's properly posted "No Soliciting" sign would be Criminal Trespass (A.C.A. §5-39-203) which is a misdemeanor rather than just an ordinance violation. The ordinance would supply the unlawful aspect of a solicitor's presence on a homeowner's premises in violation of the "No Soliciting" sign. The homeowner who suffered the criminal trespass would need to be a witness if a trial is necessary. Please note that the proposed changes do NOT ban door to door solicitation to sell goods or seek donations on any residence not posted "No Soliciting." Permit fees are "waived for political and religious free speech (but not if donations are requested) ...." DEPARTMENTAL CORRESPONDENCE OFFICE OF THE CITY ATTORNEY TO: Mayor Jordan City Council FROM: Kit Williams, City Attorney DATE: February 11, 2016 RE: Fundamental Right To Privacy Kit Williams City Attorney Blake Pennington Assistant City Attorney Patti Mulford Paralegal I have done further research into a homeowner's right of privacy versus religious group's desire to ask for donations/sell books door-to-door which the group may allege is part of their religious freedom. In a case out of Fayetteville, we were sued by a religious group who desired to build and operate a religious school in a residential zone without requesting a Conditional Use permit as required by the Unified Development Code. The Arkansas Supreme Court unanimously affirmed Fayetteville's victory in Chancery Court and clarified the difference between religious belief and religious action. "The appellants' argument ignores the very real distinction between an infringement upon a religious belief, which is absolutely prohibited, and a limitation upon a religious action, which is subject to reasonable laws designed to protect the public health or welfare. Those laws may limit the time, place, and manner of action. • • - Here, the zoning ordinance does not force members of appellant church to set aside the religious belief that their children should be educated in a parochial school. Instead, the ordinance accommodates that belief by making provision for conditional use permits for the operation of parochial schools in approved areas. However, the opening of a parochial school falls within the ambit of a religious action and is subject to reasonable limitation upon the time, place, and manner of operation." Abram v. City of Fayetteville, 281 Ark. 63, 65, 661 S.W.2d 371, 372 (1983), In a more recent case, the Arkansas Supreme Court examined the issue of whether our citizens enjoy a constitutionally protected right of privacy. After a lengthy review, the Supreme Court held Arkansans did have a fundamental right to privacy. "In considering our constitution together with the statutes, rules, and case law mentioned above, it is clear to this court that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution." Jegley v. Picado, 349 Ark. 600, 631, 80 S.W.3d 332, 349- 350 (2002). (emphasis added). In a concurring opinion in the above case Justice Brown pointed out that our right to privacy is most protected in our homes. "If anything has been sacrosanct over the past hundred and fifty years under the common law of Arkansas, it is the principle that a persons home is his castle. See, e.g., McGuire v. Cook, 13 Ark. 448, 458 (1853) {'(T)he house of every man is to him as his castle and fortress, as well for his defense against injury and violence as for repose."}. That principle continues undiluted and undiminished even to the present day." Id. at 639, 80 S.W.3d at 354. Therefore, I believe we are on safe legal ground protecting our homeowners who take the affirmative step to notify the public by posting a "No Soliciting" decal or sign on their property. These homeowners' constitutionally protected, fundamental right of privacy in their homes cannot be ignored and violated simply because another private citizen wants to perform uninvited religious actions at the homeowner's premises. DEPARTMENTAL CORRESPONDENCE OFFIcE. OF THE CITY ATTORNEY Kit Williams City Attorney Blake Pennington TO: Mayor Jordan Assistant City Attorney City Council Patti Mulford Paralegal CC: Don Marr, Chief of Staff FROM: Kit Williams, City Attorney DATE: February 8, 2016 RE: Door to door solicitation for donations I have been informed that a religious group is planning to go door to door in Fayetteville in the near future proselytizing and seeking "donations." Their "Canvassing Handbook" has 13 "Donation Ranges" based upon the number of books their canvassers provide to the homeowners. They assert they are not "selling" or "peddling" these books, but only asking for suggested donations. The "canvassers" will receive about half of all donations they can collect. The other half goes to the ministry which operates "Ouachita Hills College" in Amity, Arkansas. The ministry claims that these students going door to door proselytizing and seeking donations is part of their religious faith. Our current Fayetteville Code was designed to protect our citizens from fraud and unpleasant solicitations from individuals or groups openly acknowledging they were trying to sell magazine subscription or other goods and services door to door. These regulations did not address door to door solicitation for donations even if our citizens had posted the City's No Solicitation decal or sign. If the City Council wants to protect our private residential homeowners from any solicitation (to sell magazines, merchandise or solicit "donations") and thereby enforce our homeowners' constitutional rights to control their own private property and their right of privacy, you could amend our current code. Attached is a draft amendment that I believe would protect our citizens' rights and would be constitutionally valid. This ministry group is currently suing White Hall (near Pine Bluff) in Federal District Court over that city's door to door solicitation ordinance and its enforcement. Blake and I have researched recent United States Supreme Court decisions and believe claims of this group about their Free Exercise of Religion and Free Speech do not trump homeowners' rights to control what private persons can come onto their private property and invade their constitutional right to privacy. Please review this proposed change to our Door to Door Solicitation regulations to see if it is what you believe is fair and appropriate. If a City Council Member wishes to sponsor such an amendment to our Door to Door Solicitation Chapter, please contact me. FAYETTEVILLE CODE OF ORDINANCES TITLE XI BUSINESS REGULATIONS CHAPTER 116: DOOR TO DOOR SOLICITATION 116.01 Going Upon Private Residential Property (A) No solicitor or vendor shall enter in or upon any house, building, or other structure upon any land or property without the prior consent of the owner or occupant thereof where there is placed or posted on the premises In a conspicuous position, at or near the usual means of Ingress, a sign or other form of notice slating or indicaling that the owner or occupant forbids or otherwise does not desire persons engaged in soliciting or any similar activity to enter upon the premises. (B) The provisions of this section shall not apply to the sale or soliciting of orders for the sale of fruits, vegetables, of other products of trte farm, including meat from domestic animals or livestock, so far as the sale of such commodities is authorized by law. (Code 1965, §13-10; Ord. No. 1390, 4-13-64; Ord No 1987. 2- 15-74. Code 1991. §116.01) Cross ralerence(s)•=Vending and peddling in parks, §97.066; SOICTIing frptzn public roadways or sidewalks prohibited, §74 o5. Adverl sing, Ch 1 10: Penally, § 10.99; Slate la.vret Transient Vendors §14-5r,-1407 116.02 — Door to Door Solicitation at Private Residence (A) Definitions The following words, terms and Phrases and their derivations, when used in this section, shall have the nneanings ascribed to them in the section, except where the context clearly indicates a different meaning (1) Charitable activity means any activity carried on for unselfish, civic or humanitarian motives or for the benefit of others and not for private gain. (2) Charitable orgrsrl+zirfi+ura means a non-profll organization holding a tax exemption certificate from the Internal Revenue Service pursuant to § 501 et seq., and any amendments (hereto. {3) Prrrkllril nluans rally person who goes to the door of any private aesrd4arce in the city. Flo, hawing been Invited by the occupant lhorcrit carrying or lratisfrorfiric. goods. wares. rnerch irrdise or personal properly of ally nature and offering Ilte sanats lot stile (4) Solicitor means any person who goes to the door of any private residence in the city, not CD116:3 having been invited by the occupant thereof, for the purpose of taking or intending to take Orders for the sale or goods, magazines, wares, merchandise or other personal property of any nature for future delivery, or for services to be performed in the future. A representative or employee of a newspaper of general circulation in Fayetteville may leave a sample current copy of the newspaper with subscription Information near the door of a private residence without being a `solicitor" as long as the representativelemployee makes no efforts at that time to contact or speak with the resident. (5) Principal means the person or other legal entity whose goods, merchandise, personal property or services are being peddled or solicited- (B) Obtaineng -no So11ciring1no per Idling - decal or sign The Planning Department shall provide any resident of the city a decal which reads, -no solicilinglno peddling.- This (fecal may be posted at the front of the any private residence m the city and by posting said notification, any solicitor or peddler has notice that soliciting or peddling at this address ss prohlbiled by cdy ordinance A resident may also post a "no soliciting" sign pursuant to §1 16.01 (C) Priircipalpermil. No peddling or solicitation shalt I)e conducted +within the city without a principal pr;rrnit being Issued The cost for the Principal to obtain a Solarilorlpeddler's permit as .340.00, and shall be, Pala to the business office before any peddling or soliciting is conducted within late city Tile Permit Shall exparn On f)Keffibcr 31 ill the year the perrYul M *sued In addition to the prinoipars perrrlrl lrfe principal musl also r_omply with the city`s businesse license requirement prisurenl to Chapter 118. Business Registry and License of the Fayellevdte Code. To obtain a permit, a representative of the principal shall provide a written, signed application stating, (1) The name, address, telephone number, type of organization, and contact person for the principal applicant; (2) The nature of the products or services involved (3) The proposed method of operation in the city, (4) A list of all persons who will peddle or solicit in FAYETTEVILLE CODE OF ORDINANCES TITLE XI BUSINESS REGULATIONS the city on behalf of the principal in the city. (D) Permit for peddlersisolicitors In addition to the Principal permit, each peddler or solicitor acting for the principal shall also obtain a permit from the Planning Department before peddling or soliciting within the City. The cost io obtain a peddler/solicitor permit is $5.00. In applying for the permit, each applicant shall provide the following to the Planning Department: (1) The name of the principal applicant for whom they are going to act as a peddler or solicitor; (2) The name, address, and telephone number of the person who is going to act as a peddler or solicitor, and in addition, they must also provide photo identification; (3) A signed statement under oath that the person applying to be a peddler/solicitor has not been convicted of felonies or any misdemeanors involving theft, sexual offenses, or violence; (4) A statewide criminal background check and a nationwide crime index/background check, including sex offender registry, which shows that a peddler or solicitor has not, within the preceding five years, been convicted of any felonies, or any misdemeanors involving theft, sexual offense or violence, nor has been incarcerated in prison at any time during the last five years. No person shall be issued a permit as a peddler or solicitor that has been convicted of any of the offenses set out above nor in prison during the last five years. (5) For international students or other persons without United States Citizenship and working with a valid visa or other government -issued identification, a copy of the visa or other valid documentation and a nationwide crime index/background check meeting the criteria in subsection (4) above shall be submitted (E) Prohibition. It is unlawful for any solicitor or peddler to: (1) Peddle or solicit within the city without having a copy of this section on their person, as well as a copy of their permit issued by the Planning Development, as well as photo identification visible, which is provided by the principal, identifying the person peddling or soliciting; (2) Enter upon any private residence, knock on the door, ring the doorbell, or otherwise CD116:4 attempt to gain admittance at the residence when the premises' owner or tenant has posted at the entry of the'residence a decal or sign bearing the words, "no soliciting/no peddling," "no peddlers," "no solicitors," "no trespassing," or other words of similar import; (3) Conduct the activities of peddler or solicitor and knock on the door, ring the doorbell, or otherwise attempt to gain admittance at the residence between the hours of 9:00 p.m and 10:00 a-m; (4) Remain at the private residence when requested to leave, or to otherwise conduct business in a manner which a reasonable person would find obscene, threatening, intimidating or abusive; (5) Make any false or misleading statements about the product or service being sold, including untrue statements of endorsement; (6) Claim to have the endorsement of the city based on the city having issued a permit to that person; (7) Fail to disclose his or her name and the name of the principal whom he represents at the outset of the initial conversation; (8) Fail to immediately leave the premises or residence after having been asked by the owner or occupant thereof to do so (F) Penalty. Any violation of this section shall be deemed a nuisance and punishable by a fine as provided by §10.99 of the Fayetteville Code_ (G) Exemptions. Officers or employees of the City, County, State or Federal government, or any subdivision thereof shall be exempt for the requirements of this section when on official business- (H) Free permits for nonprofit corporations not seeking donations- After supplying adequate proof to the Planning Department that the nonprofit charitable organization is a charity with a current §501 (c)(3) IRS exception, the Planning Department may issue the permits required by this section without charge to the persons desiring to exercise their free speech rights as long as no solicitations for donations are made and no donations accepted FAYETTEVILLE CODE OF ORDINANCES TITLE XI BUSINESS REGULATIONS (1) PefMils tl-Hived for political and religious free speech and for Fayetteville children through high school senior status. (1) Although everyone going door to door must respect and not go to the door of a citizen who has personally posted a "no solicitation" type sign, may only go door to door during the daytime/evening hours allowed in (E)(3), and must conform to the requirements of (E)(4), (E)(6), (E)(8), persons exercising their First Amendment political or religious free speech rights are otherwise exempted from this section. (2) Fayetteville children through high school senior status must abide by the restrictions found in (E)(2)(3)(4) and (8) but are otherwise exempt from the remainder of this section. (J) Revocation of permit. Any permit issued pursuant to the provision of this section may be suspended or revoked for good cause by the Director of Development Services. Good cause for such suspension or revocation shall include any violation of this section, or any other reason for suspensions or revocation as set oil in §118 03 of the Fayetteville Code and said violations are hereby incorporated herein by reference. The procedure for suspension or revocation under this section shall be the same procedure as set out in §118 03 of the Fayetteville Code and said procedure is hereby incorporated herein by reference. (Ord 5593, 7-2-13, Ord 5767. 5-5-15) 116.03-116.99 Reserved CD116:5 DEPARTMENTAL CORRESPONDENCE C1 F F I C E 0F THE CITY A-F-FoRN.EI TO: Mayor Jordan City Council CC: Don Marr, Chief of Staff Paul Becker, Finance Director Chief Tabor Casey Jones, City Prosecutor FROM: Kit Williams, City Attorney DATE: April 27, 2016 RE: Proposed amendment to Door to Door Solicitation ordinance Kit Williams City Attorney Blake Pennington Assistant City Attorney Patti Mulford Paralegal The ordinance included within the Tentative Agenda packet would prohibit all non-exempt persons from violating the privacy and private property rights of homeowners by going onto the premises with a properly posted "No Soliciting" sign. I believe this is constitutional because private property owners have powerful property and privacy rights which probably exceed even the First Amendment rights of persons wanting to go uninvited onto private residential property. However, there are a couple of additional changes needed for the Door to Door Solicitation Chapter. Thus, I have attached a slightly amended ordinance for your consideration. This Option A ordinance would basically bar even political and religious persons from going upon private residential property if the owner or legal tenant has properly posted a "No Soliciting" decal or sign. However, if the City Council wishes the "No Soliciting" sign trespass restrictions to operate only against peddlers and solicitors (even just for asking for or accepting donations), I have redrafted the ordinance to accomplish this result. I exchanged "No person" for "No solicitor or peddler." Because of this change, no exemptions for emergencies and for government workers on official business need to be included and so I removed (B) Exemptions. I also slightly changed Section 3 to clarify the treatment of the non - amended portion of § 116.02 (A) (4). I also added Section 4 which would modify the penalty provisions to require homeowners wishing to prosecute trespassing solicitors or peddlers to request the City Prosecutor to file criminal trespass charges. Section 5 would amend the current Paragraph (I) which would make Paragraph (H) unnecessary. This section is different depending upon the City Council's decision to limit the door to door solicitation regulations primarily to peddlers and solicitors (Option B) or to protect homeowners who have properly posted a "No Soliciting' sign on their home premises from almost everyone (including political campaigners or religious proselytizers) from interfering with their privacy and property rights (Option A). The first thing the City council needs to decide as a body is the desired reach of the regulations ... whether it should bar almost everyone or be limited to regulating peddlers and solicitors. Once that decision is made, I would ask that someone move to amend the originally handed out ordinance to either Option A (general ban) or Option B (regulation of peddlers and solicitors, but allowing continued political campaigning and religious proselytizing door to door). I recommend Option B partly because I do not believe such campaigning has caused many homeowner objections in the past. D P,-rl c) Aj A ORDINANCE NO. AN ORDINANCE TO AMEND CHAPTER 116: DOOR TO DOOR SOLICITATION OF THE FAYETTEVILLE CODE BY REPEALING § 116.01, ENACTING A REPLACEMENT § 116.01 AND BY AMENDING THE DEFINITION OF SOLICITOR IN § 116.02 (A) (4) WHEREAS, the owners and residents of private residences in Fayetteville have constitutional rights to occupy and control their private homes and prohibit uninvited and unwelcome private citizens from disturbing the quiet enjoyment of their private residences and from invading their constitutional privacy rights; and WHEREAS, if the owner or resident of a private residence conspicuously posts "No Soliciting," "No Trespassing" or similar warning sign in a conspicuous location near the usual means of ingress onto the residential property or on or near the front door of the residence, a person who ignores such sign and goes upon the private residential property has committed an intentional trespass and violation of the home owner's or resident's constitutional rights of privacy and property; and WHEREAS, no person's right to the free exercise of their religion or their free speech is superior to a private home owner's constitutional right of privacy at his or her residence and constitutional right to control their own private property to the exclusion of other private citizens; and WHEREAS, § 116.02 (A) (4) Solicitor needs to include within its definition a person who requests or accepts donations so homeowners be protected from not only those seeking to sell magazines or other merchandise, but also those soliciting donations of money. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.01 in its entirety and enacts a replacement § 116.01 as follows: "§ 116.01 Going Upon Private Residential Property (A) Honoring Fayetteville Citizens' Private Property And Privacy Rights. No person not invited by the owner or legal tenant of a private residence shall enter upon such private residence, knock of the door, ring the doorbell or otherwise attempt to gain admittance or ask questions or converse with the private residence's occupant(s) if the owner or legal tenant has posted at or near the entry of the residence or conspicuously placed at or near the usual means of ingress toward the home, a sign or decal bearing the words "no soliciting", "no trespassing" or other words of similar import. (B) Exemptions (1) Officers, employees or agents (including process servers) of the City, County, State or Federal government or any subdivision thereof shall be exempt for the requirements of this section when on official business. (2) A person needing to communicate about an emergency situation related to that home or nearby neighbors is also exempt to the extent of such emergency notification." Section 2. That the City Council of the City of Fayetteville, Arkansas hereby amends § 116.02 (A) (4) by repealing the first sentence in its entirety and enacting the following to replace that first sentence: "(4) Solicitor means any person who goes to the door of any private residence in the city, not having been invited by the occupant thereof, for the purpose: (a) of taking or intending to take orders for the sale of services or the sale of goods, magazines, wares, merchandise or other personal property of any nature; or (b) of seeking or accepting donations or making any other requests for money or other things of value." The remaining second sentence of § 116.02 (A) (4) shall be included as a new subsection (c). Section 3. That the City Council of the City of Fayetteville, Arkansas hereby amends § 116.02 (B) by renaming this subsection "Obtaining `no soliciting' `decal or sign"' and amending the first sentence to read: "The Planning Department shall provide any resident of the city a decal or sign which reads `no soliciting."' Section 4. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.02 (F) Penalty and enacts the following replacement section: "(F) Penalty. A violation of § 116.01 and § 116.02 (E) (2) and (8) shall support a homeowner's or lawful tenant's right to seek a charge of criminal trespass from the City Prosecutor. A violation of any other provision in § 116.02 shall be punishable pursuant to § 10.99 of the Fayetteville Code." Section 5. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.02 (H) and (I), enacts a replacement (H) as shown below and re -letters (J) to (1): "(H) Exemptions for free speech rights and for Fayetteville children through High School senior status. (1) As long as a person is not acting as a solicitor or peddler and is exercising only free speech rights, the person shall be exempt from all permitting requirements and prohibitions of this section, except the person must obey the prohibitions listed in § 116.02 E (2) (3) (4) and (8). (2) Fayetteville children through high school senior status must abide by the restrictions found in (E)(2)(3)(4) and (8) but are otherwise exempt from the remainder of this chapter." PASSED and APPROVED this Yd day of May, 2016. APPROVED: IN LIONELD JORDAN, Mayor ATTEST: By; SONDRA E. SMITH, City Clerk/Treasurer APT /61 ORDINANCE NO. AN ORDINANCE TO AMEND CHAPTER 116: DOOR TO DOOR SOLICITATION OF THE FAYETTEVILLE CODE BY REPEALING § 116.01, ENACTING A REPLACEMENT § 116.01 AND BY AMENDING THE DEFINITION OF SOLICITOR IN § 116.02 (A) (4) WHEREAS, the owners and residents of private residences in Fayetteville have constitutional rights to occupy and control their private homes and prohibit uninvited and unwelcome private citizens from disturbing the quiet enjoyment of their private residences and from invading their constitutional privacy rights; and WHEREAS, if the owner or resident of a private residence conspicuously posts "No Soliciting," "No Trespassing" or similar warning sign in a conspicuous location near the usual means of ingress onto the residential property or on or near the front door of the residence, a person who ignores such sign and goes upon the private residential property has committed an intentional trespass and violation of the home owner's or resident's constitutional rights of privacy and property; and WHEREAS, no person's right to the free exercise of their religion or their free speech is superior to a private home owner's constitutional right of privacy at his or her residence and constitutional right to control their own private property to the exclusion of other private citizens; and WHEREAS, § 116.02 (A) (4) Solicitor needs to include within its definition a person who requests or accepts donations so homeowners be protected from not only those seeking to sell magazines or other merchandise, but also those soliciting donations of money. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.01 in its entirety and enacts a replacement § 116.01 as follows: "§ 116.01 Going Upon Private Residential Property (A) Honoring Fayetteville Citizens' Private Property And Privacy Rights. No solicitor or peddler not invited by the owner or legal tenant of a private residence shall enter upon such private residence, knock of the door, ring the doorbell or otherwise attempt to gain admittance or ask questions or converse with the private residence's occupant(s) if the owner or legal tenant has posted at or near the entry of the residence or conspicuously placed at or near the usual means of ingress toward the home, a sign or decal bearing the words "no soliciting", "no trespassing" or other words of similar import. Section 2. That the City Council of the City of Fayetteville, Arkansas hereby amends § 116.02 (A) (4) by repealing the first sentence in its entirety and enacting the following to replace that first sentence: "(4) Solicitor means any person who goes to the door of any private residence in the city, not having been invited by the occupant thereof, for the purpose: (a) of taking or intending to take orders for the sale of services or the sale of goods, magazines, wares, merchandise or other personal property of any nature; or (b) of seeking or accepting donations or making any other requests for money or other things of value." The remaining second sentence of § 116.02 (A)(4) shall be included as a new subsection (c). Section 3. That the City Council of the City of Fayetteville, Arkansas hereby amends § 116.02 (B) by renarning this subsection "Obtaining `no soliciting' `decal or sign "' and amending the first sentence to read: "The Planning Department shall provide any resident of the city a decal or sign which reads `no soliciting."' Section 4. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.02 (F) Penalty and enacts the following replacement section: "(F) Penalty. A violation of § 116.01 and § 116.02 (E) (2) and (8) shall support a homeowner's or lawful tenant's right to seek a charge of criminal trespass from the City Prosecutor. A violation of any other provision in § 116.02 shall be punishable pursuant to § 10.99 of the Fayetteville Code." Section 5. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.02 (H) and (I), enacts a replacement (H) as shown below and re -letters (J) to (I): "(H) Exemptions for free speech rights and for Fayetteville children through High School senior status. (1) As long as a person is not acting as a solicitor or peddler and is exercising only free speech rights, the person shall be exempt from all permitting requirements and prohibitions of this section, but should honor the reasonable time limits of (E) (3) and must obey a homeowner's or tenant's request to leave pursuant to (E) (8). (2) Fayetteville children through high school senior status must abide by the restrictions found in (E)(2)(3)(4) and (8) but are otherwise exempt from the remainder of this chapter." PASSED and APPROVED this Y6 day of May, 2016. APPROVED: ATTEST: By: LIONELD JORDAN, Mayor By: _-- SONDRA E. SMITH, City Clerk/Treasurer NORTHWESTARKANsAs Demo= *0axe&__ AFFIDAVIT OF PUBLICATION I Karen Caler, do solemnly swear that I am the Legal Clerk of the Northwest Arkansas Democrat- Gazette, printed and published in Washington and Benton County, Arkansas, and of bona fide circulation, that from my own personal knowledge and reference to the files of said publication, the advertisement of: CITY OF FAYETTEVILLE ORD. 5873 Was inserted in the Regular Editions on: April 23, 30, May 7 & 14, 2016 Publication Cost: $1133.60 Karen Caler Subscribed and sworn to before me This 31 day of Act, , 2016. �A,Nw Notary Public I`_ My Commission Expires: Z(7.6Z4 ECATHY WILES Icy, kansas - Benton County Public - Commii,/2397118mission Expires Feb 20, 2024 **NOTE** Please do not pay from Affidavit Invoice will be sent. RECEIVED JUN 01 2016 CITY CLERK'S OFFICE Ordinance: 5873 File Number: 2016-0205 AMEND CHAPTER 116: DOOR TO DOOR SOLICITATION: AN ORDINANCE TO AMEND CHAPTER 116: DOOR TO DOOR SOLICITATION OF THE FAYETTEVILLE CODE BY REPEALING § 116.01, ENACTING A REPLACEMENT § 116.01 AND BY AMENDING THE DEFINITION OF SOLICITOR IN § 116.02 (A) (4) WHEREAS, the owners and residents of private residences in Fayetteville have constitutional rights to occupy and control their private homes and prohibit uninvited and unwelcome private citizens from disturbing the quiet enjoyment of their private residences and from invading their constitutional privacy rights; and WHEREAS, if the owner or resident of a private residence conspicuously posts "No Soliciting," "No Trespassing" or similar warning sign in a conspicuous location near the usual means of ingress onto the residential property or on or near the front door of the residence, a solicitor or peddler who ignores such sign and goes upon the private residential property has committed an intentional trespass and violation of the home owner's or resident's constitutional rights of privacy and property; and WHEREAS, no person's right to the free exercise of their religion or their free speech is superior to a private home owner's constitutional right of privacy at his or her residence and constitutional right to control their own private property to the exclusion of other private citizens; and WHEREAS, § 116,02 (A) (4) Solicitor needs to include within its definition a person who requests or accepts donations so homeowners will be protected from not only those seeking to sell magazines or other merchandise, but also those soliciting donations of money. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.01 in its entirety and enacts a replacement § 116.01 as follows: "§ 116.01 Going Upon Private Residential Property (A) Honoring Fayetteville Citizens' Private Property And Privacy Rights. No solicitor or peddler not invited by the owner or legal tenant of a private residence shall enter upon such private residence, knock on the door, ring the doorbell or otherwise attempt to gain admittance or ask questions or converse with the private residence's occupant(s) if the owner or legal tenant has posted at or near the entry of the residence or conspicuously placed at or near the usual means of ingress toward the home, a sign or decal bearing the words "no soliciting", "no trespassing" or other words of similar import. Section 2. That the City Council of the City of Fayetteville, Arkansas hereby amends § 116.02 (A) (4) by repealing the first sentence in its entirety and enacting the following to replace that first sentence: "(4) Solicitor means any person who goes to the door of any private residence in the city, not having been invited by the occupant thereof, for the purpose: (a) of taking or intending to take orders for the sale of services or the sale of goods, magazines, wares, merchandise or other personal property of any nature; or (b) of seeking or accepting donations or making any other requests for money or other things of value." The remaining second sentence of § 116.02 (A)(4) shall be included as a new subsection (c). Section 3. That the City Council of the City of Fayetteville, Arkansas hereby amends § 116.02 (B) by renaming this subsection "Obtaining 'no soliciting' decal or sign"' and amending the first sentence to read: "The Planning Department shall provide any resident of the city a decal or sign which reads 'no soliciting."' Section 4. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.02 (F) Penalty and enacts the following replacement section: "(F) Penalty. A violation of §116.01 and §116.02 (E) (2) and (8) shall support a homeowner's or lawful tenant's right to seek a charge of criminal trespass from the City Prosecutor. A violation of any other provision in §116.02 shall be punishable pursuant to §10.99 ofthe Fayetteville Code." Section 5. That the City Council of the City of Fayetteville, Arkansas hereby repeals § 116.02 (H) and (I), enacts a replacement (H) as shown below and re -letters (J) to (I): "(H) Exemptions for free speech rights and for Fayetteville children through High School senior status. (1) As long as a person is not acting as a solicitor or peddler and is exercising only free speech rights, the person shall be exempt from all permitting requirements and prohibitions of this section, but should honor the reasonable time limits of (E) (3) and must obey a homeowner's or tenant's request to leave pursuant to (E) (8). (2) Fayetteville children through high school senior status must abide by the restrictions found in (E)(2)(3)(4) and (8) but are otherwise exempt from the remainder of this chapter." PASSED and APPROVED on 5/17/2016 Approved: Lioneld Jordan, Mayor Attest: Sondra E. Smith, City Clerk Treasurer 73708455 May 26, 2016