HomeMy WebLinkAboutORDINANCE 0268-1975Requested by:
Prepared by.
For Re~d~q:
Retail Herchants
Association
City Attorney
7/10/75
CITY OF KENAI
ORDINANCE NO. 268-75
AN ORDINANCE OF THE CITY OF KENAI, ALASKA, ENACTING A
NEW ARTICLE DEFINING AND REGULATING TRANSIENT MERCHANTS, AND
ITINERANT MERCHANTS AND PROVIDING PENALTIES FOR THE VIOLATION
THEREOF.
Alaska:
BE IT ORDAINED by the Council of the City of Kenat,
That a new Article be enacted, numbered $, said
Article to read as follows:
LICENSE REQUIRED
Section $-22. It shall be ~znlawful for a transient or
ittnerant-~ercha~t', as defined in section 5-23 of this Article,
to engage in business within the City of Kenat without first ob-
taining a license therefor in compliance with the provisions of
this chapter.
TRANSIENT OR ITINERANT MERCI:ANT DEFINED
Sectlo'6 5-23.' Yran~ient or itinerant merchant is
defined as any person, fidcor corporattbnj whether as owner, agent,
consignee or employee, whether a resident of the city or not, who
engages in a temporary business of selling and delivering goods,
and/or services, wares and merchandise within this city, and who,
in furtherance of such purpose, peddles from door to door or uses
any building or structure, or any street, alley, or other place
within the city, for the exhibition and sale of such goods, wares
and merchandise, and/or the performance of ~ervices, either pri-
vately or publicly. The person, firm, or corporation so engaged
shall not be relieved from complying with the provisions of this
ordinance merely by reason of associating temporarily with any
local dealer, trader, merchant or auctioneer, or by conducting such
transient business in connection with. as a part of, or in the name
of any local dealer, trader, merchant or auctioneer. As used in
this chapter, "temporary" means for a period contemplated to be less
than one hundred twenty days duration.
PRESUMPTION AS TO TRANSIENT MERCHANT STATUS
Section ~-~4. Every person Who would be a transient or
{ttnerant merchant a~ defined by section 5-23, except for his
declaration of intent to remain in business in the city for longer
than one hundred twenty (120) days, shall nonetheless be presumed
to be transient merchant unless or until he has:
ORDINANCE NO.
2.,~/?-7S- continued
pa~e 2
Section 5-24 - continued:
Purchased, or leased for a term of at least four
(4) months, real property wtthtn the city from
which his business fs befng or will be conducted;
Engaged tn the same business within the city for at
least five (5) consecutive months during each of the
preceding two (2) calendar years; or
(3)
Otherwise objectively demonstrated his intent to re-
main tn business tn the city for a period longer than
one hundred twenty (120) days by other than his
claratton of Intent to so remain.
APPLICATION FOR LICENSE
Section 5-25L Applicants for license under this chapter,
whether a person, firm or corporation, shall file a written
~worn application signed by the applicant, tf an tndtv{dual,
Uy all partners if a partnership, and by the president if a
corporation, with the City Clerk, showing:
(1) The name or names of the person or persons having ~he
management or supervision of applicant's business
during the time that it is proposed that ~t will be
carried on tn the Ctty of Kenat; the local address
or addresses of such person or persons whtle engaged
Jn such business; the permanent address or addresses
of such person or persons; t~e capaclty tn which such
person or persons will act (that is, whether as propri-
etor, agent or otherwise); the name and address of the
person, firm or corporation for whose account the bus-
Iness ~tll be carried on, if any; and if a corporation,
under the la~s of what state the same is incorporated;
The ftn;erprtnts of the person or persons having the
management or supervision of applicant's bustness or in
lieu thereo£ a copy of the applicant's annual report,
bank statements, credit report, or similar proof of
financial responsibility satisfactory to the City Clerk.
(3)
The place or p!aces in the City of Kenat where tt ts
proposed to carry on applicant's business, and the
length of time during which tt is proposed that said
business shall be conducted;
(4)
The place or places, other than the permanent place of
business of the applicant where applicant wlthtn the
six months next preceding the date of said application
conducted a transient business, stating the nature
thereof and giving the post office and street address
of any building or office tn which such busJness was
conducted;
GRD~.,,,,,,~ eNO. ~68-75 - continued
page 3
Section 5-25. continued:
(5)
A statement of the nature, character and quality
of the goods, wares or merchandise to be sold or
offered for slae by applicant in the City of
Kenai, the invoice value and quantity of such
goods, wares and merchandise, whether the same
are proposed to be sold from stock in possession,
or from stock in possession and by sample, at
auction, by direct sale, or by taking orders for
future delivery; where the goods or property
proposed to be sold are manufactured or produced
and where such goods or products are located at
the time said application is filed.
(6)
A brief statement of the nature and character of
the advertising done or proposed to be done in
order tc attract customers, and copies of all
said advertising whether by handbills, circular,
newspaper advertising, or otherwise, shall be
attached to said application as exhibits;
l~hether or not the person or persons having the
management or supervision of the applicant's
business have been convicted of a crime, mis-
demeanor or the violation of any municipal or-
dinance, the nature of such offense and the
punishment assessed therefor, excluding minor
traffic offenses;
(s)
Credentials from the person, firm or corporation
for which the applicant proposes to do business,
authorizing the applicant to act as st~ch repre-
sentative.
(9) Statement as to whether the goods or services
are to be accompanied by any warrenty.
BOND REQUIRED
Section 5-26. The application shall be accompanied by
~"!ur~:ty bond in the amount of $5,000.00 running to
the--[Ylty of Kenai or a cash bond in the amount of
$5,000.00~ conditioned upon the applicant's:
(1)
Delivering the goods, wares, merchandise or per-
forming services as may have been paid for, either
in whole or upon partial deposit, to the purchaser
thereof, or alternatively to refund the purchase
price or deposit, ~ithin 30 days from demand of
delivery; and
ORDI~A~ICE ~0. 268-75 - co, tin~ed:
page 4
Section 5-26. continued:
Honoring all warranties, express or implied, that
may accompany the goods, wares, merchandise or
service performed; and
(3)
If such goods, wares, merchandise or service are
to be provided without warranty, then such fact
shalI be made known to the public in the advertise-
ments used by the applicant, or if none then by
providing written notice to the purchaser upon
the sale or order of such goods, wares, merchan-
dise or service.
(4) Complying with all ordinances and regulations and
with AS 45.50.
APPOINTMENT OF CITY CLERK AS A6ENT FOR SERVICE OF PROCESS
Section 5-27. Before any license shall be issued for
~ngaging in business as an itinerant merchant the
applicant shall file with the City Clerk an instru-
ment nominating and appointing-the City Clerk, or the
person performing the duties of such position, his
true and lawful agent with full power and authority
to acknowledge service of notice or process for and on
bebalf of the applicant in respect to any matters
connected with or arising out of the business trans-
acted under the license and the bond given as required
by section 5-26 of this Article, or for the performance
of the conditions of said bond or for any breach
thereof, which said instrument shall also contain
recitals to the effect that the applicant for the
license consents and agrees that service of any notice
or process may be made upon the agent, and when so
made shall be taken and held to be as valid as if
ersonally served upon the person or persons applying
or the said license under this ordinance, according to
the law of this or any other state, and waiving all
claim or right of error by reason of such acknowledge-
ment of service or manner of service. Immediately
upon service of process upon the City Clerk, as herein
provided, the City Clerk shall send to the licensee
at his last known address, by registered mail, a copy
of said process.
LICENSE FEE
Section 5-28. The license fee for transient merchants
shall be one hundred dollars.
INVESTI6ATION
Section 5,29 . Upon receip~ of a license application,
'the City Clerk shall notify the police department to
investigate whether the applicant is being soughKby .
any jurisdiction in the United St~te~ tot any cr~m~na~
m
ORDINANCE ilO. 2~F~-75 - continued
Page 5
Section 5-29 - continued
byronse or ~F~n tnvo'l~inq consumer misrepresentation
or has been convicted of or enjoined from similar
activities.
ISSUANCE OF LICENSE
S~c~'t°n S-30 The City Clerk shall issue a license to
an app]icanT where
il) An application containing all information required
in Section 6-25 has been filed.
(2)
The bond required by Section 5-26 has been delivered
except where such bond is not required as provided
in Section 5-32,
(3)
The appointment of the City Clerk as agent
for service of process has been filed in accord-
ance with Section 5-27,
(4) The fee provided in Section 5-28 has been paid, and
(5)
The investigation provided for in Section 5-2g
reveals no information that applicant ts being
sought by any Jurisdiction in the United States
for any criminal offense or action involving con-
sumer misrepresentation or has been convicted or
enjoined from similar activities.
The City Clerk shall deny the application where any of
the requirements enumerated in this section are not
complied with. The applicant may appeal such denial
as provided in Section 5-38,
SPECIAL REQUIREMENTS AS TO ADVERTISING SALES
SectiOn 5-31 ~'eforej-l~c~n~e may be issued to a~y
Lr~-~slant merchant who intends to sell advertising space
in any publication, such merchant shall file with the
City Clerk an affidavit of circulation of such publication.
The affidavit shall state the name of such publication,
the place where it is published, the names and addresses
of the publisher and editor, the method of distribution
of the publication, the number of regular subscriber, and
the approximate number of copies of each issue purchased,
or if such publication is dtstrtbvted free, the approximate
number of persons receiving it. The transient merchant
shall along wtth the affidavit, ftle a copy of the most
recent tssue of such publication. The affidavit and sample
publication shall be a matter of public record and shall
be available for publtc inspection.
EXCEPTION TO LICENSXNG REQUIREMENTS
Sec't)'A~5~3'2 The ltcen~'i'ng requirements of this chapter do
not extend to
OR~)INANCE NO.~.68-75 - contiaued
Section 5-32 - continued
(3)
The sale of personal goods or wares at such
functions as garage sales or flea markets, or
Fund raising activities of non-profit organ-
izations or groups which have filed with the
State of Alaska under the provisions of AS 10.20., or
Commercial travelers who regularly take orders for
goods in the usual course of business where orders
are taken from residents of the state regularly
engaged in wholesale or retail business and where
no payment prior to delivering of such goods is
required.
BXCBPTION TO BONDING REqUIREMeNTS
Section 5-3~ lbo bonding requirements as contained in this
chapter shall not be applicable to transient or itinerant
merchants who engage in the business of selling items
that, by their nature, have intrinsic value based solely
on artistic, visual or decorative appeal. Examples of
such items include, but are not limited to, art work,
art reproduction, Christmas trees and flowers.
DISPLAY OF LICBNSB
Section 5-34 The license issued under this chapter
khall be posted onsipicuously in the place of business
named therin or if no fixed location, the license
shall be carried on tho person of the licensee at all
times while ho is actually engaged in the activity for
which the license is granted. Such license must be
shown to each person with whom the licensee deals.
In tho event that such person or persons applying for
tho license desire to do business in more than one
place within tho City, seperate licenses may be issued
for each place of bu~iness.
['1{
ADVERTI~iBMBNTS OF TRANSIENT MBRCHANTS
Section 5;35 Every adveYtisement, notice, flier,
commercial, phamphlet or other advertising device
utilized within the City of genai to attraet attent-
ion to the business, location, presence, or arrival in the
City of Kenai, of a "Transient or inttnerant merchant",
shall contain tho following statement, which shall be
conspicuously presented to the attention of any person
whose attention is attracted by such advertising device:
"(name of merchant) has posted
the surety bond and been issued busienss license
no.~ as required by the Code of the City of
Kenai, Alaska."
O~D~A~CE tt0o~'-~68~75- continued
Page ?
RECORDS TO BE DEPT BY CITY CLERK
Sectton'$-3'6'?~-~-~ty Clerk shall keep a record of
a--1i licenses issued. Such record and the license
shall contain the number of the license, the date
the same is issued, the nature of the business author-
ized to be carried on, the amount of the license fee
paid, the expiration date of said license, the place
where said business may be carried on under said
1(cerise, and the name or names of the person or persons
authorized to carry on the same .... The City Clerk
shall deposit the record of fingerprints of licensee,
together with a license number, with the Chief of
Police; the Chief of Police shall report to the
City Clerk any complaints against any person licensed
under the provisions of this chapter and any con-
viction for violation of laws or ordinances; the
City Clerk shall keep a record of all such licenses
and of such complaints and violations.
EXPERATZON OF LICENSE
Sectton 5-37 Ali 11censes issued under the provisions
of this ordinance shall expire one hundred twenty
(120) days after the date of issuance thereof unless
a prtor date is fixed therein.
REVOCATIOfl OF LICENSE
~ectton 5-38 The licenses issued pursuant to this
ordinance may be revoked by the City Manager after
notice and hearing, for any of the following causes:
(1) Any fraud, misrepresentation or false statement
contained in the application for license;
(3)
(;)
Any fraud, misrepresentation or false statement
made in connection with the selling of goods, wares,
merchandise or providing of service;
Any violation of thts article.
Conviction of the licensee of any felony;
Conducting the business licensed under this
chapter in a manner which violates municipal,
state or federal law.
Notice of hearths for revocation of a ltcense shall be
given in writing, setting forth specifically the grounds
of the complaint and the ttme and place of the hearing.
Such notice shall be mailed, postage prepaid, to the
licensee, at his last known address, at least five (5)
days prior to the da~e set for the hearing. Hearing
shall he before the City Manager.
ORDI,~;ANCF NO. 268-75- contli)ued
Page 8
APPEAL TO CITY COUNCIL
section--~-39 Any person aqgrteved by the decision of
the City 'Clerk in regard to the denial of application
for license or in connection with the revocation of ~
license shall have the right to appeal to the Council
by the City Manager of the City of Kenai. Such appeal
shall be taken by filing with the City Manager within
fourteen (14) days after notice of the dectsio~ by the
City )4anager has been mailed to such person's last known
address, a written statement setting forth the grounds
for the appeal. The appeal and notice of such hearing
shall be given to such person in the same manner as pro-
vided in section 5-37 of this chapter. The order of the
Council on such appeal shall be final .
CLAIMS AGAINST LICENSEE
~ect'ion 5-40 A person having a claim against a licensee
for any of the items referred to in section 5-26 of this
Article may bring suit upon bond in a court of com-
petent Jurisdiction of the Judicial district where the
goods, wares or merchandise were delivered or the
services were performed or in any Judicial district in
which Jurisdiction of the licensee may be obtained.
A copy of the complaint shall be served by personal
service, registered or certified mail upon the City
Clerk at the time suit is filed and the City Clerk shall
maintain a record, available for public inspection,
of all suits commenced. This service shall constitute
service on the surety and the City Clerk shall transmit
complaint or a copy of it to the surety within 72 hours
after it has been received. The surety on the bond is
not liable in an aggregate amount in excess of that named
in the bond, but in case claims pending at any one time
exceed the amount of the bond, priority of payment to
the claimant from the surety or security pledged
shall be determined by date of filing of the claim
with the City Clerk. If a judgment is entered against
the cash deposit, the City Clerk, upon receipt of a
certified copy of a final judgment shall pay the
Judgment' from the amount of the deposit according
to the priorities established in this section.
LIMITATION ON BOND CLAIM
Section 5~41 A claim against the bond provided for
f~ this c'hapter shall be made within ninety (90) days
of the date of delivery of goods, wares, merchandise,
or within thirty (30) days fro~ demand of refund as
provided for in Section 5-41 or' within one hundred
twenty (120) days of completion of services contracted
or paid for.
ORDINANCE NO. 268-75
continued Page 9
REFUND OF BOND
Section 5-42 If the bond deposited is cash, the City
CT6wk sh~ll-refund the same to the depositor upon the
depositor's filing with the City Clerk a sworn affi-
davit of the depositor that it Nas been one hundred
twenty (120) days or more since the date of delivery
or refund of deposit or purchase price of all goods,
wares, merchandise or services sold by the licensee
under this section.
SEPARATE OFFENSES
section 5-43 Each sale of goods, wares, merchandise
and7 or services without a license thereof as re-
quired by this ordinance, shall be a separate offense
under, and separate violation of this chapter.
PENALTY
Section 5-44 Any person, firm or corporation
violating any of the provisions of this ordtnace shall,
upon conviction thereof,be punished by a fine not to
exceed three hundred dollars ($300.00) or by imprison-
ment in Jail for thirty days, or both.
Section 5-45 This section may not be construed to
aut~orize a person to solicit for sales or sell
services, goods, wares or merchandise in a restdcnttal
area in violation of other provisions of this code.
CITY OF KENAI
~KAMES A. ELSON, 'lqayor
ATTEST:
lngCity CTTerk
m m
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