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
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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
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" 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