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2021-06-09 Council Work Session agenda packet
CITY OF MENDOTA HEIGHTS CITY COUNCIL WORKSESSION AGENDA Wednesday, June 9, 2021 1:30 p.m. 1.Call to Order 2.Discussion Items A.City Administrator Succession B.Door to Door Licensing Code Change C.Post-COVID City Meetings and Use of Facilities D.FY 2022 Budget E.City Facility Naming Policy F.Liquor License Fees 3.Adjourn To: Mayor and City Council From: Mark McNeill, City Administrator Subject: City Administrator Succession Process Date: June 9, 2021 Comment: Introduction: The City Council should give direction as to its preferences for selecting a new City Administrator. Background: It is my intent to retire at the end of September of this year. As such, the Council should discuss and give direction on how it wants to select the next City Administrator. Options: • Have the City handle the selection process, and do it in the same manner as would be the hire of any other employee. • Promote from within. There is at least one possible candidate. • Hire a search firm to handle all, or at least part of the process. The first option was utilized when I was hired in early 2015. However, using this option at this time presents challenges and possible conflicts, as I personally would be involved. Regarding the third option, there are at least five search firms of whom I am aware who do local government employment searches in Minnesota. Some would “cast the net” nationally, while others concentrate on the upper Midwest. From what I have been told, the minimum amount of time needed after the company’s selection is 90 days, although four to five months is more comfortable. Some of that depends upon the amount of public input is desired, and the availability of the Councilors for interviews. The costs for these services seem to range from $15,000 to $25,000, and will depend on the firm, and the type of service selected. Most will meet first with the client (elected officials and key staff) to be certain that the job description is accurate, any special desirable traits or qualifications are noted, and the pay range (currently $122,261 to $150,290) is competitive. The firm would then put together a position profile, which includes a description of the job, and the city, and the city organization. Advertising would be done, which is done almost exclusively electronically. Usually, the posting is done for 30 days. At the end of that time, the consulting firm will evaluate the candidates’ submitted information. Many will have the candidates fill out profile questions, where the candidates respond to a series of questions about their qualifications, experiences, and managerial philosophies. Most firms will winnow the initial number of submittals down for the client city, and depending on the number of responses, will separate the candidates into groups of being deemed good, marginal, or unqualified. The Council then may select the semi-finalists. Live or video interviews are usually done. From this, finalist candidates are determined; a group of 4-6 finalists is preferable. It should be assumed that some of the finalist candidates are also interviewing elsewhere, and may drop out from consideration before an offer can be made. Once the new City Administrator prospect is determined, the firm will typically check references, do a Google search of on-line articles about the candidate, and then will do a background search, including criminal history and credit checks. Some firms offer options for lesser services at reduced fees, like just doing the initial recruitment, and then presenting semi-finalists to the City. The client city would handle all steps from there. I have seen other firms which offer a guaranty, so that if the appointed candidate starts the job and later is determined not to be a good fit (like, leaves within a year), the firm will conduct the next search for free. This option, of course, will cost the client city a higher fee, and requires the full search. Recommendation: From a personal observation, and in speaking with a couple of prospective search firms, it is unusual to have this many searches searches being done at the same time in the Twin Cities metropolitan area. I can think of six cities who are either in the process, or (like West St. Paul) have recently hired. Therefore, there will be a lot of competition for well qualified individuals. For this reason, I would recommend against having the City do the external search itself. If a search firm is preferred, staff should be directed to gather proposals for the Council to consider. As there are five Tuesdays in June, the next regular meeting will be July 6th. Because of that, I recommend that the Council either schedule a special meeting to hire the firm, or consider appointing two of the Mayor/Councilors to make the initial determination on behalf of the Council before then. Whichever process is the preference of Council, the process should begin soon. Mark McNeill City Administrator Date: June 9, 2021 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: Door to Door Licensing Code Change Comment: Introduction: The Council is asked to discuss, and give direction to publish notice to consider a change to the City Code relating to door to door sales or solicitors. Background: In May, the City received an inquiry as to the process for obtaining a license to go door to door with the intent to sell. When informed that that was not permissible under current City Code, the prospective applicant challenged that, and stated that recent Court decisions have ruled that ordinances which are similar to the City’s current practice were illegal, and therefore should be changed. The City Attorney affirmed that an outright ban is not permitted, and that the current language must be updated. He further provided a memo from the League of Minnesota Cities, and a model ordinance. He recommends that the City should consider adopting the model ordinance or something similar. He said that there is no ordinance that can require companies to get a permit; however, as shown in the sample ordinance, individual homeowners would be able to place a “no solicitation” sign on their door if they do not wish to be bothered by door to door callers. In addition, the City would be able to identify reasonable hours for this activity to occur (i.e, “…No earlier than 9 AM, nor later than 30 minutes before sundown”. We understand that there will be individuals who will prefer to keep in place the current practice that prohibits most door to door sales, but that is not an option. Recommendation: The Council should review the model ordinance, and let staff know of any specific changes. It should then direct staff to post 10 days’ notice of the possible change to the City Code. Mark McNeill, City Administrator League of Minnesota Cities Model Ordinance: 6/23/2020 Peddlers, Solicitors and Transient Merchants Page 1 Peddlers, Solicitors and Transient Merchants, LMC Model Ordinance League staff thoughtfully develops models for your city’s consideration. Models should be customized as appropriate for an individual city’s circumstances in consultation with the city’s attorney. Helpful background information on this model may be found in the Information Memo, “Regulating Peddlers, Solicitors and Transient Merchants.” ORDINANCE NO. _____ AN ORDINANCE REGULATING THE CONDUCT OF PEDDLERS, SOLICITIORS, AND TRANSIENT MERCHANTS WITHIN THE CITY OF _____, MINNESOTA. The City Council of _____, Minnesota ordains: SECTION 1. DEFINITIONS. Except as may otherwise be provided or clearly implied by context, all terms shall be given their commonly accepted definitions. For the purpose of this ordinance, the following definitions shall apply unless the context clearly indicates or requires a different meaning. NON-COMMERICAL DOOR-TO-DOOR ADVOCATE. A person who goes door-to- door for the primary purpose of disseminating religious, political, social, or other ideological beliefs. For purpose of this ordinance, the term door-to-door advocate shall fall under the term solicitor and include door-to-door canvassing and pamphleteering intended for non-commercial purposes. PEDDLER. A person who goes from house-to-house, door-to-door, business-to-business, street-to-street, or any other type of place-to-place movement, for the purpose of offering for sale, displaying for exposing for sale, selling or attempting to sell, and delivering immediately upon sale, the goods, wares, products, merchandise, or other personnel property that the person is carrying or otherwise transporting. For purpose of this ordinance, the term peddler shall have the same common meaning as the term hawker. PERSON. Any natural individual, group, organization, corporation, partnership, or similar association. REGULAR BUSINESS DAY. Any day during which the city hall is normally open for the purpose of conducting public business. Holidays defined by state law shall not be considered regular business days. SOLICITOR. A person who goes from house-to-house, door-to-door, business-to- business, street-to-street, or any other type of place-to-place movement, for the purpose of obtaining or attempting to obtain orders for goods, wares, products, merchandise, other personal property, or services of which he or she may be carrying or transporting samples, or that may be described in a catalog or by other means, and for which delivery or performance shall occur at a later time. The absence of samples or catalogs shall not remove a person from the scope of this provision if the actual purpose of the person’s activity is to obtain or attempt to obtain orders as discussed above. For purposes of this ordinance, the term solicitor shall have the same meaning as the term canvasser. TRANSIENT MERCHANT. A person who temporarily sets up business out of a vehicle, trailer, boxcar, tent, other portable shelter, or empty store front for the purpose of exposing or displaying for sale, selling or attempting to sell, and delivering goods, wares, products, League of Minnesota Cities Model Ordinance: 6/23/2020 Peddlers, Solicitors and Transient Merchants Page 2 merchandise, or other personal property and who does not remain in any one location for more than fourteen (14) consecutive days. SECTION 2. EXCEPTIONS TO DEFINITIONS. For the purpose of this chapter, the terms PEDDLER, SOLICITOR, and TRANSIENT MERCHANT shall not apply to: (A) Non-commercial door-to-door advocates. Nothing within this ordinance shall be interpreted to prohibit or restrict non-commercial door-to-door advocates. Person engaging in non-commercial door-to-door advocacy shall not be required to register as a solicitor under Section 7. (B) Any person selling or attempting to sell at wholesale any goods, wares, products, merchandise, or other personal property to a retail seller of the items being sold by the wholesaler. (C) Any person who makes initial contacts with other people for the purpose of establishing or trying to establish a regular customer delivery route for the delivery of perishable food and dairy products, such as baked goods or milk. (D) Any person making deliveries of perishable food and dairy products to the customers on his or her established delivery route. (E) Any person making deliveries of newspapers, newsletters, or other similar publications on an established customer delivery route, when attempting to establish a regular delivery route, or when publications are delivered to the community at large. (F) Any person conducting the type of sale commonly known as garage sales, rummage sales, or estate sales. (G) Any person participating in an organized multi-person bazaar or flea market. (H) Any person conducting an auction as a properly licensed auctioneer. (I) Any officer of the court conducting a court-ordered sale. Exemption from these definitions shall not, for the scope of this chapter, excuse any person from complying with any other applicable statutory provision or requirement provided by another city ordinance. SECTION 3. LICENSING; EXEMPTIONS. (A) County license required. No person shall conduct business as a peddler, solicitor, or transient merchant within the city limits without first having obtained the appropriate license from the county as may be required by Minnesota Statutes Chapter 329 as it may be amended from time to time, if the county issues a license for the activity. (B) City license required. Except as otherwise provided for by this ordinance, no person shall conduct business within this jurisdiction as a peddler or a transient merchant without first obtaining a city license. Solicitors need not be licensed, but are required to register with the city pursuant to Section 7. (C) Application. An application for a city license to conduct business as a peddler or transient merchant shall be made at least fourteen (14) regular business days before the applicant desires to begin conducting a business operation within the city. Application for a license shall be made on a form approved by the City Council and available from the office of the city clerk. All applications shall be signed by the applicant. All applications shall include the following information: (1) The applicant’s full legal name. League of Minnesota Cities Model Ordinance: 6/23/2020 Peddlers, Solicitors and Transient Merchants Page 3 (2) Any and all other names under which the applicant has or does conduct business, or to which the applicant will officially answer to. (3) A physical description of the applicant (hair color, eye color, height, weight, any distinguishing marks or features, and the like). (4) Full address of applicant’s permanent residence. (5) Telephone number of applicant’s permanent residence. (6) Full legal name of any and all business operations owned, managed, or operated by applicant, or for which the applicant is an employee or an agent. (7) Full address of applicant’s regular place of business, if any exists. (8) Any and all business-related telephone numbers of the applicant, including cellular phones and facsimile (fax) machines. (9) The type of business for which the applicant is applying for a license. (10) Whether the applicant is applying for an annual or daily license. (11) The dates during which the applicant intends to conduct business. If the applicant is applying for a daily license, the number of days he or she will be conducting business within the city, with a maximum of fourteen (14) consecutive days. (12) Any and all addresses and telephone numbers where the applicant can be reached while conducting business within the city, including the location where a transient merchant intends to set up his or her business. (13) A statement as to whether or not the applicant has been convicted with the last five (5) years of any felony, gross misdemeanor or misdemeanor for violating any state or federal statute or any local ordinance, other than minor traffic offenses. (14) A list of the three (3) most recent locations where the applicant has conducted business as a peddler or transient merchant. (15) Proof of any required county license. (16) Written permission of the property owner or the property owner’s agent for any location to be used by a transient merchant. (17) A general description of the items to be sold or services to be provided. (18) Any and all additional information as may be deemed necessary by the City Council. (19) The applicant’s driver’s license number or other acceptable form of identification. (20) The license plate number, registration information, vehicle identification number (VIN) and physical description for any vehicle to be used in conjunction with the licensed business operation. (D) Fee. All applications for a license under this chapter shall be accompanied by the fee established in the city licensing fee schedule as it may be amended from time to time. (E) Procedure. Upon receipt of the application and payment of the license fee, the city clerk will, within two (2) regular business days, determine if the application is complete. An application will be considered complete if all required information is provided. If the city clerk determines that the application is incomplete, the city clerk must inform the applicant of the required, necessary information that is missing. If the application is complete, the city clerk must order any investigation, including background checks, necessary to verify the information provided with the application. Within ten (10) regular business days of receiving a complete application the city clerk must issue the license unless grounds exist for denying the license League of Minnesota Cities Model Ordinance: 6/23/2020 Peddlers, Solicitors and Transient Merchants Page 4 application under Section 4, in which case the clerk must deny the request for a city peddler or transient merchant license. If the city clerk denies the license application, the applicant must be notified in writing of the decision, the reason for denial and the applicant’s right to appeal the denial by requesting, within twenty (20) days of receiving notice of rejection, a public hearing before the City Council. The City Council shall hear the appeal with twenty (20) days of the date of the request for a hearing. The decision of the City Council following the public hearing can be appealed by petitioning the Minnesota Court of Appeals for a writ of certiorari. (F) Duration. An annual license granted under this ordinance shall be valid for one calendar year from the date of issuance. All other licenses granted to peddlers and transient merchants under this ordinance shall be valid only during the time period indicated on the license. (G) License exemptions. (1) No license shall be required for any person to sell or attempt to sell, or to take or attempt to take orders for, any product grown, produced, cultivated, or raised on any farm. (2) No license shall be required for any person going from house-to-house, door-to- door, business-to-business, street-to-street, or any other type of place-to-place movement for the primary purpose of exercising that person’s state or federal constitutional rights such as the freedom of speech, freedom of the press, freedom of religion, and the like. This exemption will not apply if the person’s exercise of constitutional rights is merely incidental to what would properly be considered a commercial activity. SECTION 4. LICENSE INELIGIBILITY. The following shall be grounds for denying a peddler or transient merchant license: (A) The failure of an applicant to obtain and demonstrate proof of having obtained any required county license. (B) The failure of an applicant to truthfully provide any information requested by the city as part of the application process. (C) The failure of an applicant to sign the license application. (D) The failure of an applicant to pay the required fee at the time of application. (E) A conviction with the past five (5) years of the date of application for any violation of any federal or state statute or regulation, or of any local ordinance, which adversely reflects upon the person’s ability to conduct the business for which the license is being sought in a professional, honest and legal manner. Such violations shall include, but are not limited to, burglary, theft, larceny, swindling, fraud, unlawful business practices, and any form of actual or threatened physical harm against another person. (F) The revocation with the past five (5) years of any license issued to an applicant for the purpose of conducting business as a peddler, solicitor, or transient merchant. (G) When an applicant has a bad business reputation. Evidence of a bad business reputation shall include, but is not limited to, the existence of more than three (3) complaints against an applicant with the Better Business Bureau, the Office of the Minnesota Attorney General or other state attorney general’s office, or other similar business or consumer rights office or agency, with the preceding twelve (12) months, or three (3) complaints filed with the city against an applicant within the preceding five (5) years. League of Minnesota Cities Model Ordinance: 6/23/2020 Peddlers, Solicitors and Transient Merchants Page 5 SECTION 5. LICENSE SUPENSION AND REVOCATION (A) Generally. Any license issued under this section may be suspended or revoked at the discretion of the City Council for violation of any of the following: (1) Subsequent knowledge by the city of fraud, misrepresentation or incorrect statements provided by an applicant on the application form. (2) Fraud, misrepresentation or false statements made during the course of the licensed activity. (3) Subsequent conviction of any offense to which the granting of the license could have been denied under Section 4. (4) Engaging in any prohibited activity as provided under Section 8 of this ordinance. (5) Violation of any other provision of this ordinance. (B) Multiple persons under one license. The suspension or revocation of any license issued for the purpose of authorizing multiple persons to conduct business as peddlers or transient merchants on behalf of the licensee shall serve as a suspension or revocation of each authorized person’s authority to conduct business as a peddler or transient merchant on behalf of the licensee whose license is suspended or revoked. (C) Notice. Prior to revoking or suspending any license issued under this chapter, the city shall provide a license holder with written notice of the alleged violations and inform the licensee of his or her right to a hearing on the alleged violation. Notice shall be delivered in person or by mail to the permanent residential address listed on the license application, of if no residential address is listed, to the business address provided on the license application. (D) Public Hearing. Upon receiving the notice provided in part (C) of this section, the licensee shall have the right to request a public hearing. If no request for a hearing is received by the city clerk within ten (10) days following the service of the notice, the city may proceed with the suspension or revocation. For the purpose of a mailed notice, service shall be considered complete as of the date the notice is placed in the mail. If a public hearing is requested within the stated time frame, a hearing shall be scheduled within twenty (20) days from the date of the request for the public hearing. Within three (3) regular business days of the hearing, the City Council shall notify the licensee of its decision. (E) Emergency. If, in the discretion of the City Council, imminent harm to the health or safety of the public may occur because of the actions of a peddler or transient merchant licensed under this ordinance, the City Council may immediately suspend the person’s license and provide notice of the right to hold a subsequent public hearing as prescribed in part (C) of this section. (F) Appeal. Any person whose license is suspended or revoked under this section shall have the right to appeal that decision in court. SECTION 6. LICENSE TRANSFERABILITY. No license issued under this chapter shall be transferred to any person other than the person to whom the license was issued. SECTION 7. REGISTRATION. (A) All solicitors and any person exempt from the licensing requirements of this ordinance under Section 3 shall be required to register with the city prior to engaging in those activities. Registration shall be made on the same form required for a license application, but no League of Minnesota Cities Model Ordinance: 6/23/2020 Peddlers, Solicitors and Transient Merchants Page 6 fee shall be required. Immediately upon completion of the registration form, the city clerk shall issue to the registrant a certificate of registration as proof of the registration. Certificates of registration shall be non-transferrable. (B) Individuals that will be engaging in non-commercial door-to-door advocacy shall not be required to register. SECTION 8. PROHIBITED ACTIVITIES. No peddler, solicitor, transient merchant, non-commercial door-to-door advocate, or other person engaged in other similar activities shall conduct business in any of the following manner: (A) Calling attention to his or her business or the items to be sold by means of blowing any horn or whistle, ringing any bell, crying out, or by any other noise, so as to be unreasonably audible within an enclosed structure. (B) Obstructing the free flow of traffic, either vehicular or pedestrian, on any street, sidewalk, alleyway, or other public right-of-way. (C) Conducting business in a way as to create a threat to the health, safety, and welfare of any specific individual or the general public. (D) Conducting business before 8 a.m. or after 9 p.m. (E) Failing to provide proof of license, or registration, and identification when requested. (F) Using the license or registration of another person. (G) Alleging false or misleading statements about the products or services being sold, including untrue statements of endorsement. No peddler, solicitor, or transient merchant shall claim to have the endorsement of the city solely based on the city having issued a license or certificate of registration to that person. (H) Remaining on the property of another when requested to leave. (I) Otherwise operating their business in any manner that a reasonable person would find obscene, threatening, intimidating or abusive. SECTION 9. EXCLUSION BY PLACARD. Unless specifically invited by the property owner or tenant, no peddler, solicitor, transient merchant, non-commercial door-to-door advocate, or other person engaged in other similar activities shall enter onto the property of another for the purpose of conducting business as a peddler, solicitor, transient merchant, non-commercial door-to-door advocate, or similar activity when the property is marked with a sign or placard: (1) At least four inches long. (2) At least four inches wide. (3) With print of at least 48 point in size. (4) Stating “No Peddlers, Solicitors or Transient Merchants,” “Peddlers, Solicitors, and Transient Merchants Prohibited,” or other comparable statement. No person other than the property owner or tenant shall remove, deface, or otherwise tamper with any sign or placard under this section. SECTION 10. PENALTY. Any individual found in violation of any provision of this ordinance, shall be a guilty of a misdemeanor. League of Minnesota Cities Model Ordinance: 6/23/2020 Peddlers, Solicitors and Transient Merchants Page 7 SECTION 11. SEVERABILITY. If any provision of this ordinance is found to be invalid for any reason by a court of competent jurisdiction, the validity of the remaining provisions shall not be affected. SECTION 12. EFFECTIVE DATE. This ordinance becomes effective on the date of its publication, or upon the publication of a summary of the ordinance as provided by Minn. Stat. § 412.191, Subd. 4, as it may be amended from time to time, which meets the requirements of Minnesota Statute Section 331A.01, Subd. 10, as it may be amended from time to time. Passed by the City Council of _______, Minnesota this _____ day of Month, Year. ___________________ Mayor Attested: ____________________ City Clerk This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. 145 University Ave. West www.lmc.org 6/23/2020 Saint Paul, MN 55103-2044 (651) 281-1200 or (800) 925-1122 © 2018 All Rights Reserved INFORMATION M EMO Regulating Peddlers, Solicitors and Transient Merchants Describes possible ways cities can regulate peddlers, solicitors, and transient merchants. Learn how to differentiate between the persons and practices in order to avoid legal challenges. Understand the meaning of reasonable regulations that do not violate any rights protected by the state or federal constitutions. Contains easy-to-use charts on local authority and whether to license or merely register. RELEVANT LINKS: I. Why regulate peddlers, solicitors or transient merchants Peddlers, solicitors, and transient merchants can provide benefits and challenges to cities and their residents. They provide an opportunity to bring interested parties (such as buyers and sellers, or donors and charitable, religious or nonprofit organizations) together. However, they can also cause problems not typically associated with permanently established local businesses. Bad experiences can lead disgruntled home and business owners to contact their local officials demanding relief, including: • Protection from fraud, scam artists, and other unwanted intrusions. • Prevention of crimes and unlawful activities. • A direct city response to their uneasiness and need for safety in the community. Minnesota cities have the authority, both specifically within the state statutes and under their general police powers, to regulate the activities of peddlers, solicitors, and transient merchants. However, this authority is not absolute. Regulations must be “reasonable” and not violate any rights protected by the state or federal constitutions. II. Classifications State and local governments have used different terms to describe individuals who travel city-to-city or door-to-door offering products and services for sale, or expressing ideological and religious beliefs. Among the most commonly used names for those participating in these general practices include: RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 2 See Part II-section A Peddlers. See Part II-section B Solicitors and canvassers. See Part II-section C Transient merchants. • Peddlers. • Solicitors. • Transient merchants. • Hawkers. • Canvassers. • Advocates. • Itinerant vendors. • Hucksters. • Proselytizers. • Door-to-door salespersons. • Drummers. • Missionaries. See Peddlers, Solicitors and Transient Merchants, LMC Model Ordinance. Such terms (and others) are generally defined by state statute or city ordinance. Language is often used interchangeably, but may be applied differently depending on the relevant jurisdiction involved. Despite the use of these various terms for generally similar practices, there are fundamental differences in actual operations that affect a local government’s ability to regulate a particular type of activity. A. Peddlers City of St. Paul v. Briggs, 85 Minn. 290, 88 N.W. 984 (1902). A peddler is generally described as someone who: • Travels about from place to place with no fixed place of business. • Carries the actual merchandise offered for sale, not merely samples of such products. • Sells the merchandise at the time it is offered for sale. • Delivers the merchandise at the time the sale is consummated. • Sells to the ultimate consumer and not to a retail establishment for an expected resale of the merchandise. Also commonly known as hawkers, peddlers carry the actual products offered for sale from place to place. See Part V-Local regulations. Cities generally have the authority to either license or register peddlers who wish to operate within the city’s jurisdiction. See Part IV-section C Commerce Clause. See Part II-section B Solicitors and canvassers. The licensing or regulation of peddlers usually does not raise constitutional concerns under the Commerce Clause because both product delivery and payment occur during the initial interaction. With peddling, goods are not typically shipped into the local jurisdiction for delivery at a later date and time. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 3 B. Solicitors and canvassers Excelsior Baking Co. v. City of Northfield, 247 Minn. 387, 77 N.W.2d 188 (1956). See Edwards v. City of Reno, 103 Nev. 347, 742 P.2d 486 (1987). A solicitor also engages in door-to-door activities. However, unlike a peddler, a merchant solicitor goes from place to place and only obtains orders for goods or services that will be delivered or performed at a later date. Solicitors do not carry the merchandise they are offering for sale with them. Most often, a solicitor will use samples, or carry catalogues illustrating the goods or services available. All Parks Alliance for Change v. Uniprop Manufactured Housing Cmtys. Income Fund, 732 N.W.2d 189 (Minn. 2007). Although this memo often uses the terms “solicitors” and “solicitation” interchangeably with “canvassers” and “canvassing,” canvassing refers to the practice of going from location to location with the primary purpose of furthering religious, social, or political advocacy. Unlike solicitors, financial profit is not the canvassers’ primary motivation. A canvasser (sometimes known as an advocate) may: • Ask for signatures on a petition. • Request support for a political candidate or position. • Espouse religious beliefs or causes. • Seek donations, organization memberships, or other financial support for their religious, social, or political organizations. • Take orders for goods, to be delivered at a later time, in order to raise money for a non-profit or other charitable organization’s operations. See Part IV-Constitutional implications. The regulation of these types of door-to-door advocates involves many basic constitutional rights, including a canvasser’s freedom of speech and possibly freedom of religion, a solicitor’s Commerce Clause protections, and a homeowner’s privacy and property rights. Minn. Stat. § 412.221, subd. 19. Although statutory cities are specifically provided the power to “restrain or license and regulate” solicitors and canvassers (most home rule charter cities have similar language within their charters), most legal authorities suggest their authority is actually more limited. See Part IV-section C Commerce Clause. A.G. Op. 59a-32 (Jan. 13, 1961). See Part V-section G Registration. The major restriction on local licensing of solicitors is the Commerce Clause of the U.S. Constitution. The Minnesota attorney general has advised that because states are prohibited from interfering with interstate commerce, local governments cannot collect license fees from solicitors who take orders in one state for goods to be delivered in the future from another state. In contrast, a municipal ordinance requiring all solicitors, including interstate merchants, to simply register with local authorities before engaging in their business activities may be a reasonable local regulation of interstate commerce. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 4 See Part IV-section A Freedom of speech. And while most canvassing activities do not raise concerns under the commerce clause, these activities likely raise protections under the First Amendment. If the activity is pure advocacy (the expression of one’s views or religious principles), a local unit of government cannot impose a prior restraint, such as obtaining a license or registration before engaging in the activity. Unfortunately, it is less clear what regulations, if any, may be enacted when the canvassing involves the sale of goods and services that will be provided at a later date. So, while the city can license peddlers and transient merchants, it probably should not license most solicitors or canvassers. C. Transient merchants A transient merchant is someone who demonstrates the traits of both a peddler and the typical permanent business. Transient merchants are regulated under state law. Minn. Stat. § 329.099. A transient merchant is: • Any person, individual, partnership, limited liability company, or corporation. • That sells goods, wares, or merchandise. • From a vehicle, portable shelter, vacant building, structure, lot, or railroad car. • With the intent to remain in business at any one location for a limited period of time, usually no more than a few weeks. Minn. Stat. § 329.099. Pursuant to state statute, a “transient merchant” does not include the seller or exhibitor in a firearms collection show involving two or more sellers or exhibitors. Minn. Stat. § 329.10. Minn. Stat. § 329.11. Transient merchants are not allowed to begin their business operations without first applying for and obtaining a county-issued license. (In practice, however, a county may not be issuing such licenses.) The license application will include: • The applicant’s name. • The proposed place of business. • The type or manner of business to be conducted. • How long the business will operate at that location. Minn. Stat. § 329.11. A transient merchant pays a county license fee of $150 and provides a bond in an amount not less than $1,000, but no more than $3,000. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 5 The bond is conditioned on the merchant conforming to all laws relating to transient merchants, complying with all material oral or written statements and representations made in regard to merchandise offered for sale, as well as on the faithful performance of any warranties made with the merchandise. Minn. Stat. § 329.13. Minn. Stat. § 329.17. When goods are brought into the state by a nonresident and it is claimed that such stock is to be sold at reduced prices, it is considered prima facie (“on its face”) evidence that the person (partnership or corporation) selling those goods is a transient merchant. Anyone acting in violation of these requirements is guilty of a gross misdemeanor. Minn. Stat. § 329.15. Minn. Stat. § 412.221, subd. 19. Minn. Stat. § 437.02. In addition, statutory and home rule charter cities have the specific authority to adopt ordinances to regulate, control, and license transient merchants, as well as provide criminal penalties for violating city regulations. State ex rel. Greenwood v. Nolan, 108 Minn. 170, 122 N.W. 255 (1909). State v. Schmidt, 280 Minn. 281, 159 N.W.2d 113 (1968). Licensing or other city ordinances regulating transient merchants must apply uniformly to all transient dealers regardless of residence, locale, or otherwise. 94 A.L.R. 1076. A volume of legal authority recognizes classifications based on the temporary nature of transient merchants as valid, and finds that it is proper to distinguish between temporary enterprises and permanently established businesses. D. Commercial vs. non-commercial In addition to categorizing conduct as peddling, soliciting, or transient merchant sales, these activities also need to be evaluated as to whether they are commercial or non-commercial in nature. See LMC information memo, Public Nuisances. Often, the action or conduct is a nuisance and possibly a violation of city ordinance. In reality, it is not that easy to define community concerns and tolerances. To illustrate the practical differences involved, consider: • The resident, unbothered when non-profits ring the doorbell selling candy bars, but infuriated when a vacuum salesperson comes calling. • The resident, who doesn’t mind the vacuum salesperson who maintains an office on Main Street, but doesn’t want to be disturbed by similar salespersons who live and work in another city, county, or state. • The resident who pretends to be out whenever a member of a particular religious group knocks on the door, just wanting to talk about their beliefs, but opens her door when the parish priest or pastor stops by seeking donations for the church’s latest initiative. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 6 These scenarios describe what seem to be very similar activities, which would seem to require the same manner of regulation. The community may, however, be tempted to regulate certain groups and organizations in a more stringent manner simply because they consider those groups distasteful. See Part IV-Constitutional implications. The particular entity involved (business, church, political candidate or party, or local charity), the activity (the sale of goods or services, political campaigning, or preaching), and purpose behind that activity (for-profit or merely incidental to non-profit’s purpose), are all relevant when determining whether local regulations apply. Cities need to be careful that their regulations are applied evenly with the appropriate category or grouping. III. Local authority Handbook, City Licensing. Handbook, City Regulatory Functions. See Appendix A: Local Authority-Regulations or Prohibitions. Cities, counties, and other units of local government have substantial regulatory powers. Although a local government’s licensing and regulatory authority is necessary to promote and protect the general welfare, they can often provoke conflicts between public and private interests. See Part IV-Constitutional implications. Local regulations may also impact an individual’s constitutional rights. Since resolving these clashes is often a difficult task, the proper application of the city’s licensing and regulatory authority is critical. A. Scope of authority Minn. Stat. § 329.15. Minn. Stat. § 412.221, subd. 19. Minn. Stat. § 437.02. Despite specific statutory authority authorizing the regulation (or prohibition) of peddlers, solicitors, and transient merchants, and years of judicial interpretation, there is some uncertainty about the actual scope of a city’s authority to license or regulate. While it is fairly clear cities cannot ban certain classes of transient activities, it is far from clear how far their regulations may go. B. Regulations—in general Watchtower Bible & Tract Soc’y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S. Ct. 2080 (2002). See Part III-section C Time, place, and manner. The government’s interest in regulating door-to-door and transient merchant activities is generally two-fold: 1) To ensure residents’ privacy rights in their homes; and 2) To protect residents from fraud and other crimes. Regulations take different forms, from elaborate licensing schemes, to more simple requirements such as registering with the police department and agreeing to abide by time, place, and manner restrictions. State ex rel. Cook v. Bates, 101 Minn. 301, 112 N.W. 67 (1907). New Jersey Good Humor, Inc., v. Bd. Of Comm’rs, 11 A.2d 113 (N.J. 1940). With few exceptions, city regulations should seek to control only the nuisance aspects of a particular type of business, not outlaw the activity completely. However, if certain businesses involve a fraudulent scheme designed to trap the unsuspecting citizen, a city may go as far as a prohibition, though that may be difficult to prove. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 7 Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746 (1989). Cities need to be mindful that their regulations need to be: • Content neutral. (A city generally cannot target or treat individuals differently because of who they are or for their particular message). • Narrowly tailored to serve the government’s interest. • Open for alternative methods for the same or similar communications to occur. C. Time, place, and manner Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746 (1989). State ex rel. Cook v. Bates, 101 Minn. 301, 112 N.W. 67 (1907). Cities have some discretion in regulating the time, place, and manner in which peddlers, solicitors, and transient merchants operate. If a restriction is not content-based, a city may impose reasonable restrictions. The city’s discretion is not, however, absolute. Bd. of Trs. Of State Univ. of N.Y. v. Fox, 492 U.S. 469, 109 S. Ct. 3028 (1989). Working America v. City of Bloomington, 2015 WL 6756089 ---F. Supp.3d --- (8th Cir. 2015). Cities need to consider a restriction’s general effect and be able to demonstrate a “reasonable fit” between the government’s end (i.e., to preserve privacy in one’s home; prevent fraud, theft, or other crimes) and the means that they have decided to use to accomplished those goals (i.e., background checks, registration, or bonding). Ohio Citizen Action v. City of Mentor-on-the-Lake, 272 F. Supp. 2d 671 (N.D. Ohio 2003). ACORN v. City of Frontenac, 714 F.2d 813 (8th Cir. 1983). Local restrictions are generally reviewed by the courts using a test that has been defined as intermediate scrutiny (Is an important governmental interest furthered substantially by the regulation used?). However if the restriction is not content neutral (i.e., only applies to a particular group or specific activity), it will be subject to a more stringent test known as strict scrutiny (Is there a compelling governmental interest? Is the regulation narrowly tailored to achieve that interest? Is that regulation the least restrictive way possible to accomplish that goal?). In providing time, place, or manner restrictions, the local authority recognizes that sometimes it is the method, and not the activity itself, that will affect the health, safety, and welfare of the residents. By providing guidelines on acceptable methods, the needs of residents and merchants (or canvassers) can often be accommodated. 1. Time Ohio Citizen Action v. City of Mentor-on-the-Lake, 272 F. Supp. 2d 671 (N.D. Ohio 2003). City of Watseka v. Illinois Pub. Action Council, 796 F.2d 1547 (7th Cir. 1986). City regulations often include restrictions that limit the time during which door-to-door activities may occur. For instance, regulations often prohibit uninvited calls that are too early in the morning or too late at night. As with all regulations, time restrictions must be reasonable, affording peddlers and solicitors a reasonable period of time for their activities. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 8 ACORN v. City of Frontenac, 714 F.2d 813 (8th Cir. 1983). Time restrictions should be content neutral (applying to all door-to-door calls and narrowly tailored to fit the city’s interests). Working America v. City of Bloomington, 2015 WL 6756089 ---F. Supp.3d --- (8th Cir. 2015). A city must be careful not to be so restrictive when establishing permissible hours that the average working person would never be home or available. 2. Place Schneider v. State, 308 U.S. 147, 60 S. Ct. 146 (1939). Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453 (1965). Cities can establish provisions that prohibit peddlers and transient merchants from conducting their operations at locations that would be harmful to the community. A common example of a place regulation would be reasonable location restrictions that prevent traffic hazards or interference with movement on streets and sidewalks. 3. Manner Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746 (1989). Cities can also provide reasonable prohibitions on the manner or techniques used by peddlers, solicitors, and transient merchants. Common examples of manner regulations would be to prohibit or restrict the use of: • Whistles. • Air horns. • Megaphones. • Amplifiers. • Other loud noise devices. • Flashing or strobe lights. • Other devices that may be used to attract attention to the merchant, yet would have a demonstrable negative impact on the health, safety, and welfare of the community. 4. Alternative methods – door hangers U.S. v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115 (1990). Not all transient merchant activities include face-to-face interactions. An example of “alternative” activities is leaving donation request forms, restaurant menus, or other order forms on a residence’s doorknob or on the windshield of a vehicle. If there is no actual contact with the homeowner, common concerns with solicitors and peddlers (invasion of privacy, fraud, or criminal activity) and the justifications for city regulations diminish. Schneider v. State, 308 U.S. 147, 60 S. Ct. 146 (1939). See Part III-section H Modified Green River ordinances. However, the use of door hangers or other leaflets may trigger a city’s authority in regard to regulating the amount of garbage accumulating on city streets and sidewalks. One remedy allows citizens to themselves indicate whether they are willing to entertain these merchants at their residences by posting a sign indicating if they do not want to be disturbed. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 9 D. Licensing—authority See Handbook, City Licensing. See Part V-section C Applications – background checks. See Appendix B: Local Authority-Licensing or Registration. A license is a regulatory device used to ensure compliance with regulations governing a specific occupation, profession, commercial trade, or other activity. The authority to regulate includes the power to establish standards and minimum requirements for meeting those standards. Licensing is typically a formal process with an application, fee, and council or city administration determining whether the applicant meets all licensing requirements. Background checks are common. Licensing is an exercise of police power (protecting and promoting the public welfare). Cities have adequate authority for licensing as long as it is: • Constitutional. • Reasonable. • Not specifically pre-empted by state or federal regulations. Minn. Stat. § 329.10. Minn. Stat. § 329.17. It is unlawful for transient merchants to operate without first obtaining a county-issued license. Failure to obtain a county license, or violation of any licensing requirement, is a gross misdemeanor offense. Minn. Stat. § 412.221, subd. 19. Minn. Stat. § 329.11. Minn. Stat. § 329.15. Minn. Stat. § 437.02. Minnesota cities have authority from statutes and from court decisions to regulate peddlers, solicitors, and transient merchants. Statutory cities and counties have the express statutory authority to license and regulate transient merchants, including peddlers and solicitors. Home rule charter cities also have the express authority to regulate these activities (charters themselves often provide specific authority as well). When a county license is required, cities may regulate above and beyond the requirements for county licensure. E. Licensing—exceptions There are several particular trades or activities that are exempt from local licensing based upon the U.S. Constitution, the Minnesota Constitution, state statute, or judicial decisions. 1. Farm products Minn. Const. art. XIII, § 7. The Minnesota Constitution prohibits the licensing of farmers selling the products cultivated from their own farms. This constitutional exemption would apply to individuals who go door-to-door in a manner typically associated with the normal operations of a peddler. This farm-product exemption also applies to transient merchant operations and prohibits local licensing requirements for those farmers who are operating roadside fruit or vegetable stands. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 10 State v. Hartmann¸ 700 N.W.2d 449 (Minn. 2005). The farm-product exception is limited to products “cultivated” at a farm or garden. In one case, sales of meat were found to be exempt from licensing because the meat was a product of the farm, but not necessary exempt from meat inspection requirements. State ex rel. Mudeking v. Parr, 109 Minn. 147, 123 N.W. 408 (1909). This exception cannot be expanded to exempt all persons who make or produce what they are selling from the city’s licensing requirements. It would not be appropriate, for example, to require peddlers and transient merchants who sell industrially manufactured handbags to obtain a city license but exempt anyone who goes door-to-door selling bags they produced themselves. 2. Other exemptions Minn. Stat. § 329.14. There are additional exemptions to local licensing requirements, including: Excelsior Baking Co. v. City of Northfield, 247 Minn. 387, 77 N.W.2d 188 (1956). • Initial contacts to establish delivery routes for perishables. • Businesses making deliveries on regular routes. • Delivery of newspapers. • Wholesalers making direct sales to retail establishments. • Sales made pursuant to invitation issued by an owner or legal occupant. • A seller or exhibitor in a firearms collection show involving two or more sellers or exhibitors. The general nature of these operations (occurring on a fixed schedule, possibly daily; generally upon occupant’s invitation), significantly reduces the chances that they will become nuisances, injuring the general public. F. Green River ordinances As an alternative to licensing, many municipalities across the country have adopted what is commonly referred to as a “Green River” ordinance, prohibiting the door-to-door activities of most transient salespersons. Town of Green River v. Fuller Brush Co., 65 F.2d 112, (10th Cir. 1933). Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456 (1936). Day v. Klein, 225 Miss. 191, 82 So.2d 831 (1955). The Green River approach (named after the city in which it was first used and upheld by the courts) makes it a nuisance to go onto private property and peddle or solicit orders for goods or merchandise, unless the owner or legal occupant extended an actual or implied invitation to the seller. This approach does not apply to soliciting the sale of personal services or to solicitations at places of business. Violations are misdemeanor offenses and punishable by a fine and possible imprisonment. 77 A.L.R.2d 1216. 35 A.L.R.2d 355. Other usual methods for seeking business remain. The sale of goods is not specifically prohibited, only a particular method or practice. For example, solicitors may still gain access to homes by appointments made by mail, telephone, or e-mail inquiry. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 11 35 A.L.R.2d 355. However, some courts in other jurisdictions have invalidated Green River ordinances when they considered: • The prohibited conduct involves lawful businesses. • Many useful articles cannot be sold except through home solicitations. 77 A.L.R.2d 1216. These ordinances denounce and prohibit the habitual acts of these merchants; a single uninvited act of solicitation or peddling at a private residence may not be found to violate the intent of these ordinances. However, attempting to evade the ordinance by approaching a private residence, only asking for an invitation to come back later to sell or solicit an order for goods, has been found to be a prohibited practice. Vill. of Schaumburg v. Citizens for a Better Env’tt, 444 U.S. 620, 100 S. Ct. 826 (1980). It is doubtful that a Green River ordinance can prohibit constitutionally protected door-to-door advocacy. A common example of such a practice would be an individual engaged in religious-related sales, such as religious literature. G. Licensing vs. Green River State v. Northwest Airlines, 213 Minn. 395, 7 N.W.2d 691 (1942). Breard v. Alexandria, 341 U.S. 622, 71 S. Ct. 920 (1951). Project 80’s, Inc. v. City of Pocatello, 942 F.2d 635 (9th Cir. 1991). While licensing ordinances are a tested and legally sound method of regulation, Minnesota courts have never directly addressed the validity of a Green River ordinance (but there have been indirect indications that these ordinances are valid under the Minnesota Constitution). Although upheld by the U.S. Supreme Court and never expressly overruled, subsequent federal courts had found Green River ordinances to be an unconstitutional restriction on protected speech (including commercial speech) and other state courts have struck down such ordinances for violating rights under state constitutions. H. Modified Green River ordinances There is an additional, alternative method of city action that both regulates the nuisance aspects prohibited by a Green River ordinance and recognizes the benefits of certain door-to-door activities. Martin v. Struthers, 319 U.S. 141, 63 S. Ct. 862 (1943). A modified version of the Green River ordinance authorizes homeowners to prohibit peddlers and solicitors by posting a sign indicating they do not want to be disturbed. It is a misdemeanor offense to violate that declaration. People v. Bohnke, 287 N.Y. 154, 38 N.E. 2d 478 (1941). This type of ordinance applies to solicitors engaged in interstate commerce, as well as to peddlers or solicitors engaging in the sale or distribution of religious materials, because the critical actor (the one creating the prohibition) is the individual property owner or tenant, not the city. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 12 Courts have consistently held that the Constitution does not guarantee anyone the right to go freely onto private property for the purpose of any kind of sales or solicitations, irrespective of the owner or occupant’s wishes. Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 100 S. Ct. 826 (1980). The modified Green River approach, particularly when combined with some manner of city licensing, is probably the most effective means of controlling the problems associated with peddlers and solicitors. Despite concerns over the validity of the standard Green River ordinance, specifically when constitutional rights are involved, it appears more conclusive that an ordinance may prohibit peddling or soliciting when individuals post signs indicating they do not want to be disturbed by sales or solicitations. IV. Constitutional implications Many municipal regulations have been struck down for violating constitutional protections. Most often, challenges to city peddler, solicitor, or transient merchant regulations are based on alleged violations of: • Freedom of speech. • Equal protection. • Commerce Clause. • Freedom of religion. See Part IV-section A-2 Commercial speech & Part IV-section A-3 Non- commercial speech. Because concerns over these and other constitutional rights are often raised by local regulation of peddlers, solicitors, and transient merchants, courts must balance the rights of these individuals against the government’s interests to protect the citizens’ rights to privacy, prevention of crimes, and avoidance of frauds. A court’s decision often hinges on whether the contested speech benefits commercial or noncommercial purposes. Attempts to regulate individuals going place-to-place, their primary purpose to exercise their constitutional rights, may be a losing battle. A. Freedom of speech U.S. Const. amend. I. Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 100 S. Ct. 826 (1980). Schneider v. State, 308 U.S. 147, 60 S. Ct. 146 (1939). The First Amendment provides that communications are generally protected from censorship by the government. Social, political, and religious door-to- door canvassing that does not involve the solicitation of money or the sale of goods (a commercial purpose) is among the most protected activities under the First Amendment. State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817 (1976). State v. Century Camera, 309 N.W.2d 735 (Minn. 1981). Commercial speech is also provided with limited protections; protections “commensurate with its subordinate position in the scale of First Amendment values.” This allows for some governmental regulations that would not be permitted if noncommercial speech was involved. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 13 1. Prior restraint A prior restraint is a government attempt, either through a total ban or as a consequence of local licensing, to suppress communications before they can reach the general public. Concerns with prior restraint are demonstrated by the situation where a government official is provided absolute discretion in granting or denying a permit and, ultimately, whether the speech is allowed to occur. Forsyth County v. The Nationalist Movement¸ 505 U.S. 123, 112 S. Ct. 2395 (1992). To avoid claims of unbridled restraint and violations of the individual’s (or organization’s) freedom of speech, the local ordinance must: • Contain narrow, objective, and definite standards used to guide the licensing authority. • Provide limits on the time within which the licensing authority has to make its determination. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S. Ct. 596 (1990). The U.S. Supreme Court has considered the lack of such basic requirements “evils that will not be tolerated.” 2. Commercial speech State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817 (1976). Commercial speech typically does no more than propose a business transaction. As distinguished from religious, political, or social speech, where the dialogue may include the sharing of a viewpoint on an issue, commercial forms of expression generally relate to economic interests. Limited First Amendment protections have been extended to speech that “does no more than propose a commercial transaction.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm., 447 U.S. 557, 100 S. Ct. 2343 (1980). Regulations on commercial speech are subject to a four-part test: • Is the proposed activity protected by the First Amendment to the extent that it concerns lawful activity and is not misleading? The First Amendment does not protect false or misleading commercial speech. • Are the asserted governmental interests substantial? A local government’s interests in privacy, crime prevention, and fraud are usually considered sufficient “substantial interests.” • Does the regulation directly advance the asserted governmental interests? If the purpose of the regulation is to prohibit fraud, there must be a link between that regulation and the prevention of fraud, not mere happenstance. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 14 • Is the regulation not more extensive than necessary to serve those interests? While court decisions indicate use of the least restrictive means to achieve the government’s interest, the absolutely least severe restriction possible is not required. If the ordinance fails this four-part test, it is more likely a violation of the merchant’s freedom of speech. 3. Non-commercial speech Non-commercial speech occurs in many forms. Often, it is the exercise of First Amendment rights by sharing religious or political information during doorstep conversations or distributing door hangers, flyers, and other written materials. Cities generally cannot require all religious, social, or political solicitors to obtain a license or register when the primary purpose behind their activities is to share a viewpoint. Despite the ideological or constitutional differences between commercial and non-commercial conduct, many homeowners don’t value or draw such distinctions. A person who does not want to be disturbed by salespeople may also find charitable canvassing a nuisance. Additionally, some “non- commercial” speech is fraudulent or criminal in purpose. Cities have difficulties when non-commercial solicitors are, to some degree, also engaging in commercial activity (selling candy bars, raffle tickets, or religious publications). In the past, local regulations and the courts have examined specific conduct to determine if: • The activity is primarily commercial in nature and subject to local regulations on peddlers, solicitors, or transient merchants. • The sale is secondary to the expression of a belief or position and falls within constitutional protections and outside certain local regulations. 77 A.L.R.2d 1216. Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 100 S. Ct. 826 (1980). Local regulations have been upheld when they apply only to transactions of a commercial nature and distinguish, for example, the evangelist selling or taking orders for materials that support or further his beliefs. From a practical and conservative perspective, non-commercial advocacy is often peppered with some level of commercial activity. Often, despite the incidental commercial activities involved, the entire “speech” is generally protected. Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 108 S. Ct. 2667 (1988). Regulations that apply to non-commercial door-to-door solicitations must be narrowly drafted to meet the legitimate interests of the city and not significantly prohibit otherwise protected activities. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 15 B. Equal protection U.S. Const. amend. XIV. Minn. Const. art. I, § 2. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution provides that no state shall deny to any person within its jurisdiction the equal protection of its laws. This protection is additionally reinforced under the Minnesota Constitution. A local government cannot generally favor one group over another. Equal protection concerns arise when: • Local regulations treat in-state (“locals”) different than out-of-state merchants. • City-based merchants are treated differently than other in-state businesspeople. • Within general definitions for peddlers, solicitors, or transient merchants, groups of merchants are distinguished from one another. • Local regulations specifically allow the door-to-door or transient sale of one type of product or service, but prohibit the similar sale of another. 112 A.L.R. 63. Kalra v. State of Minnesota, 580 F. Supp. 971 (D. Minn. 1983). State statutes or city ordinances that discriminate against non-residents by refusing to grant them a license (or grant licenses on different terms) are generally unconstitutional. The courts have indicated non-citizens also fall within the coverage of the equal protection clause. State ex rel. Greenwood v. Nolan, 108 Minn. 170, 122 N.W. 255 (1909). Minnesota courts invalidated a city ordinance that discriminated between resident and nonresident peddlers since such restrictions denied nonresidents the privileges enjoyed by resident citizens. 94 A.L.R. 1076. State v. Schmidt, 280 Minn. 281, 159 N.W.2d 113 (1968). Regulations that apply only to nonresidents are likely void. For example, an ordinance requiring a transient merchant from outside the county to post a bond was invalidated because it violated the non-resident’s equal protection rights. That court would not follow the assumption that salespersons living within the county were solvent and financially responsible, but individuals residing elsewhere would not satisfy a possible civil judgment. Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900 (1940). Cities should be able to provide for their community’s general welfare without invading an individual’s rights. Unless there is a clear, definable grounds for making a distinction (an almost certain adverse impact to the public), such divisions are not permissible. C. Commerce Clause U.S. Const. art. 1, § 8, cl. 3. City of Waseca v. Braun, 206 Minn. 154, 288 N.W. 229 (1939). The Commerce Clause of the U.S. Constitution provides Congress with the exclusive authority to regulate trade between the states. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 16 This provision both: (1) grants the federal government a tremendous amount of authority over what would otherwise be local issues; and (2) limits what cities may do when their regulations might affect the movement of goods between states. The Commerce Clause substantially impacts the regulation of itinerant salespersons by local governments. C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 114 S. Ct. 1677 (1994). Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S. Ct. 3049 (1984). The Commerce Clause prohibits state and local laws that promote local economic protection. An ordinance may establish local protectionism because of either a discriminatory purpose or discriminatory effect. The U.S. Supreme Court has invalided regulations that: Ward v. Maryland, 79 U.S. 418 (1870). • Required only nonresident merchants to obtain licenses. • Charged higher fees to nonresidents. • Prohibited merchants from using nonresidents as salespersons. These decisions are based in part upon the belief that the government may not prevent someone from traveling state-to-state to earn a living. Oregon Waste Sys. Inc. v. Dept. of Envtl. Quality of the State of Or., 511 U.S. 93, 114 S. Ct. 1345 (1994). State v. Schmidt, 280 Minn. 281, 159 N.W.2d 113 (1968). A local regulation is discriminatory if it provides different treatment to in- state and out-of-state economic interests, benefiting the former and burdening the later. Restrictions that discriminate on interstate commerce are virtually per se invalid. For example, just as with equal protection challenges, a city ordinance that only required nonresident transient merchants to post a bond was an unreasonable burden on interstate commerce and unconstitutional. State v. Schmidt, 280 Minn. 281, 159 N.W.2d 113 (1968). Courts have held that formal licensing procedures and fees for solicitors, involved in interstate commerce (orders delivered from a different state at a later time) amount to an undue burden on commerce and violate the U.S. Constitution. Since residents and non-residents must be treated equally under the law, a prohibition on regulating out-of-state merchants creates a situation where in-state merchants may not be licensed as well. Wagner v. Covington, 251 U.S. 95, 40 S. Ct. 93 (1919). Peddlers and transient merchants have their goods within the state before the commercial transaction begins. Because of this, cities that license these classifications are not affecting interstate commerce. D. Freedom of religion U.S. Const. amend. I. Minn. Const. art. I, § 16. Freedom of religion is a constitutionally-protected right under the First Amendment of the U.S. Constitution and the Minnesota Constitution. Int’l Soc’y for Krishna Consciousness v. City of Houston, 689 F.2d 541 (5th Cir. 1982). Various forms of conduct can fall within an individual’s freedom of religion, from pure speech, the sale of religious materials, or the request for donations. Cities must use caution when attempting to regulate religious solicitors because of their First Amendment rights to free speech and the free exercise of religion. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 17 Watchtower Bible & Tract Soc’y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S. Ct. 2080 (2002). Cities are prohibited from even registering individuals going from place to place to exercise their constitutional rights to freedom of speech and freedom of religion. In one case, the city required all solicitors to register and obtain a permit from the mayor’s office before entering private property to promote any cause. The Court held that a licensing requirement for social, political, and religious door-to-door canvassing would inhibit the free exercise of a person’s right to express ideas or solicit support anonymously or spontaneously. City regulations must be narrowly tailored to meet their purpose of protecting city residents from crimes and fraud but cannot overreach and significantly burden noncommercial solicitors and their advocacy. It is unclear how far cities may go when constitutional rights and commercial activity intermingle. Of particular concern is the situation where professional fundraisers are used on behalf of a nonprofit, religious, or similar organization. Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 119 S. Ct. 636 (1999). ACORN v. Golden, Colorado, 744 F. 2d 739 (10th Cir. 1984). While cities have taken different approaches in policing the activities of non-commercial advocates, a conservative approach is practicable. These types of solicitors should not be required to obtain a license; cities should probably not be requiring non-commercial advocates to register. Mandatory background checks are likely impermissible for non-commercial door-to- door activities; identification requirements for noncommercial activists have also been invalided. City regulations—requiring licensing, permitting, or registration for the dissemination of ideas—will be considered inherently suspect. V. Local regulations Apart from the Green River approach, a licensing ordinance is by far the most common method used to attempt to control the activities of peddlers, solicitors, and transient sellers. A. City ordinances Handbook, Meetings, Motions, Resolutions, and Ordinances. Hanson v. City of Granite Falls, 529 N.W.2d 485 (Minn. Ct. App. 1995). The decision to regulate people or property, and to provide penalties for any violations, should be adopted by city ordinance. As a result, the council must pass, in ordinance form, all police regulations for public health, morals, economic well-being, welfare, and safety. Ordinance regulations apply generally within the city and are permanent and continuing in nature. Holt v. City of Sauk Rapids, 559 N.W.2d 444 (Minn. Ct. App. 1997). Ordinances, particularly when regulating peddlers, solicitors, and transient merchants, must be consistent with the constitutions and statutes of the United States and Minnesota. An ordinance must not limit or deny any common law or constitutional rights, or unreasonably restrain trade. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 18 Press v. City of Minneapolis, 553 N.W.2d 80 (Minn. Ct. App. 1996). An ordinance must not be unconstitutionally vague. Ordinances must be reasonably certain in their terms and set forth objective standards, providing adequate notice of what is required and/or prohibited. Ordinances establish the process for granting and issuing licenses. See Peddlers, Solicitors and Transient Merchants, LMC Model Ordinance. Although form varies from city to city, most peddler, solicitor, and transient merchant ordinances provide: • Definitions. • Exceptions. • Licensing requirements and exemptions. • License ineligibility. • Suspension/revocation procedures. • Transferability. • Registration. • Prohibited activities. • Exclusion by placard (modified Green River). City of St. Paul v. Briggs, 85 Minn. 290, 88 N.W. 984 (1902). Excelsior Baking Co. v. City of Northfield, 247 Minn. 387, 77 N.W.2d 188 (1956). State ex rel. Mudeking v. Parr, 109 Minn. 147, 123 N.W. 408 (1909). The ordinance must specifically mention and define each term used for the purpose of the local regulation. The courts have been strict in their definitions of what type of activity constitutes a particular type of business practice. This is particularly important since there are legal distinctions between the terms “peddler,” “solicitor,” “canvasser,” and “transient merchant.” See Peddlers, Solicitors and Transient Merchants, LMC Model Ordinance. A licensing ordinance should be complete and detailed. The ordinance provides the authority and procedures for: • Applying for the license. • The term of the license. • Required qualifications of the license applicant. • Bond and insurance requirements (if applicable). • The possible reasons for denial, revocation, or suspension of the license. • Transferability of the license. • Any other limitations or applicable city regulations. The ordinance should place specific time limits within which the decision- maker must issue the license or permit, and establish specific criteria used to determine whether to grant a license or permit. An ordinance should list some specific reasons for which an applicant could be denied a city license. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 19 B. Licenses in general Handbook, City Licensing. The city council’s authority to grant or refuse a license varies with the nature of the business or activity. On one hand, there are licenses (more appropriately considered a permit) available to anyone who applies, pays the required fee, and meets any basic conditions specified by city ordinance. When the applicant has complied with the requirements, the city must issue the license. Except for determining whether an applicant satisfies the basic, pre-existing written requirements, council or staff discretion is largely removed from the process. 54 A.L.R 1104. 92 A.L.R. 400. On the other hand is a city licensing system where, based on the potential abuses and in lieu of prohibiting the activity altogether, more extensive qualifications on license eligibility or on the business operations are weighed before a license is granted. A licensing ordinance is a tested and legally- sound method of regulation. Although more leeway is provided under this method, a city council cannot be given uncontrolled discretion in granting a license based on the character of the applicant, the nature of the organization, or the general welfare of the community. See Part V-section D Fees. 9 McQuillin, Municipal Corporations § 26.11. When a license is required, it must be obtained before sales begin and should be issued in the names of those persons who actually will be engaged in the peddling. Ordinances need to be specific and should prohibit the transfer of licenses from person to person. Fees need to be reasonable. Preference cannot be given to resident vendors over non-residents. Once issued, individuals have an interest in the license and the ability to conduct their door-to-door activities. When a license comes up for renewal, the licensee is in the same position as any other applicant unless a statute, charter, or local ordinance provides otherwise. Minn. Stat. § 329.15. Gifford v. Wiggins, 50 Minn. 401, 52 N.W. 904 (1892). Despite specific statutory authority that would seem to indicate otherwise, cities cannot prohibit the sale of some items but permit the sale of others, unless the prohibited items have some adverse effect on the public health, morals, safety or general welfare and even then, it may be difficult for the city to prove such detriment. C. Applications—background checks Minn. Stat. ch. 13. See LMC information memo, Data Practices: Analyze Classify & Respond. It is important for cities to consider the form of their peddler or transient merchant license applications. The information provided and the background checks that are authorized will be the means by which a city obtains all the information on which they will make their licensing determinations. Cities need to ensure they comply with the requirements of the Minnesota Government Data Practices Act in the collection and maintenance of such information. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 20 Handbook, City Licensing. The ordinance gives authority and guidance on the procedural matters involved. An ordinance should provide: • Who investigates the applicants. • Who decides whether an applicant is qualified. • What procedural rights exist in the case of denial, suspension, or revocation. When background checks are a required part of the process, there must be a demonstrable link between the inquiry and the ultimate goal of crime and fraud prevention and other general safety concerns. It is a good idea to make findings (statements of fact) when adopting the ordinance, establishing the crime and fraud problems requiring this action, and also ensuring that the background check’s results are considered when making licensing decisions. See Peddlers, Solicitors and Transient Merchants, LMC Model Ordinance. With city licensing, time is always of the essence. Licenses should be issued as soon as reasonably possible, taking into account that applicant review takes time. To balance city and applicant needs, an ordinance should provide: • The actual amount of time city staff has to determine if the submitted application was completed in full (two days). • Licenses will be issued or denied within a specific period of time (within 10 regular business days). • Rights to appeal the decision, either through city or district court, within so many days of receipt of written denial (20 days of receipt). The timeframes provided should be clearly established within the ordinance and followed by city staff and elected officials. Handbook, City Licensing. The background check determines whether an applicant can satisfy the personal requirements for obtaining a peddler or transient merchant’s license. Disqualifying factors could include: See Peddlers, Solicitors and Transient Merchants, LMC Model Ordinance. • Failure to obtain a county license (when applicable). • Application was not completed truthfully. • Applicant has a record of criminal convictions related to the sale of goods, such as larceny, theft, or fraud. • Revocation of license elsewhere. • Bad business reputation. The prerequisites used must be valid, applied consistently, and able to withstand challenge. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 21 D. Fees Watters v. People of State of Michigan, 248 U.S. 65, 39 S. Ct. 29 (1918). Northeast Ohio Coalition for the Homeless v. City of Cleveland, 105 F.3d 1107 (6th Cir. 1997). Whenever a city requires a license, it may also require a license fee. A license fee imposed on all peddlers (regardless of the source and nature of the products they peddle) can be a content neutral, constitutionally permissible time, place, and manner regulation as long as the purpose of charging the fee is limited to defraying the expenses incurred for regulating the activity. Watchtower Bible & Tract Soc’y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S. Ct. 2080 (2002). While permit or license fees probably cannot be charged for commercial and non-commercial door-to-door solicitors, cities may charge a fee to most peddlers and transient merchants. Cities often utilize a fee schedule to establish the fees for all city-issued licenses. By removing specific dollar amounts from specific ordinances and referencing a fee schedule, the city can pass one ordinance adopting the new fee schedule each time it changes a fee. Orr v. City of Rochester, 193 Minn. 371, 258 N.W. 569 (1935). State v. Redmond, 43 Minn. 250, 45 N.W. 232 (1890). Licensing should not be viewed as a significant source of revenue. A license fee should approximate the direct and indirect costs associated with issuing the license and policing the licensed activities. License fees that significantly exceed city costs are generally considered to be taxes the city does not have the authority to enact. A license fee may not be so high as to produce any substantial revenue beyond what it actually costs to issue the license and to supervise, inspect, and regulate the licensed business. Establishing licensing fees by simply comparing fees imposed by other cities can be problematic. The reasonable character of a particular fee depends on the kind of business, the amount of inspection and regulation, the current value of the dollar, and other inherently local factors—all of which can vary greatly by location. If the city fee is large enough to cover more than the cost of issuing the license and all city licenses expire on the same day, it may want to consider providing a pro rata fee system for those who get or give up licenses during the year. E. Bonds A bond is similar to an insurance policy. If a merchant fails to comply with city regulations or uphold his or her guarantees, an injured party may be entitled to recover funds secured by the bond. The benefit of requiring the posting of a bond before door-to-door or transient operations are allowed may appear obvious in theory but is more problematic in practice. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 22 Larson v. City of Shelton, 37 Wash.2d 481, 224 P.2d 1067 (1950). Bonding requirements for commercial activities may be used to ensure compliance with city standards, and to protect the public from fraud and other crimes. The protection of the public is an obvious reason for states and cities to require peddlers to post a bond to obtain a license or permit. These merchants are often here today and gone tomorrow. Unless a bond or deposit is required, local residents will have no remedy if fraud occurs. A.G. Op. 59a-32 (Jan. 13, 1961). A city considering including a bonding requirement must proceed with caution. Bonding requirements for non-commercial activities will likely be deemed unconstitutional if challenged. A bond may violate the Equal Protection Clause or the Commerce Clause if not imposed evenhandedly and a city cannot properly require a solicitor to post a bond. Finally, the required bond amounts should not be excessive in regard to the activity being regulated. F. Denying license State ex rel. Cook v. Bates, 101 Minn. 301, 112 N.W. 67 (1907). Where a Minnesota city has the power to regulate, it exercises the authority and considerable discretion to decide what restraints will be imposed. For operations that are nothing more than a fraudulent attempt to trap the unsuspecting or the unwary, a consequence of city regulations may be to prohibit those activities altogether. Grounds for denying a license may include: • A material misrepresentation in the application. • An applicant with “poor” moral character. • Circumstances where granting the license would harm the safety, health, morals, and general welfare of the community. Handbook, City Licensing. A licensing ordinance doesn’t generally need to specifically define terms such as “good moral character” or “professional misconduct”. However, a city cannot generally disqualify someone from a licensed occupation, including peddling or transient sales, based solely upon a prior criminal conviction. A prior conviction must directly relate to the occupation for which the person is seeking the license. A city should also consider the time elapsed since the conviction when determining whether it justifies a denial. G. Registration As a less intrusive option, cities can, as an alternative to a full licensing process, require all peddlers and transient merchants to register with the city prior to beginning their operations. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 23 Registration is a process that involves recording a person’s name and all other information necessary to ensure the good faith and conduct of the registrant. With registration, there are no approvals or denials, and no fees or background checks. The process should only take a few minutes, rather than the days involved with licensing. It is likely that a city may also require commercial solicitors to register prior to their door-to-door activities; registration alone should not have any impact on interstate commerce. This authority probably cannot extend to non- commercial operations (circumstances where an individual’s primary or sole purpose for going door-to-door is to further social, political, or religious beliefs) or where commercial profit, if present, is a secondary concern. VI. Suggestions The regulation of these profit and nonprofit activities is subject to ever- evolving legal interpretations. What may be a relatively safe and settled regulation today can change with a single decision from the U.S. or Minnesota Supreme Courts. Unfortunately, these new decisions don’t always clearly uphold or reverse prior decisions, leaving this area of law sometimes even more unsettled. Accordingly, Minnesota cities considering adopting or amending a city ordinance that regulates the activities of peddlers, solicitors and other transient merchants should work with their city attorney to ensure their regulations comply with all current legal requirements. From an intentionally conservative approach, a city should keep these basic ideas in mind when considering regulating peddlers, solicitors (both commercial and non-commercial), or other transient merchant and their activities: • Do nothing. • Adopt a Green River ordinance and prohibit most commercial door-to- door and transient activities. • Adopt a modified Green River ordinance, either alone or as part of a larger city licensing or regulatory ordinance, allowing residents to decide if they want to create a blanket prohibition for door-to-door advocacy on their property. • License peddlers and transient merchants. • Register peddlers, transient merchants, and commercial solicitors. • When activities concern non-commercial social, political, or religious advocates, the city may not be able to license or register. RELEVANT LINKS: League of Minnesota Cities Information Memo: 6/23/2020 Regulating Peddlers, Solicitors and Transient Merchants Page 24 Because this can become a highly litigated (and potentially costly) concern, and because there is the potential risk for violating constitutional protections, cities need to involve their city attorney before adopting or revising any municipal regulation that affects peddlers, solicitors, and transient merchants. Date: June 9, 2021 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: Post-COVID City Meetings/ Facilities Comment: Introduction: The Council is asked to give direction on spacing at in-person Council meetings, and also on “opening up” City facilities to the use of outside groups. Background: As of May 28, 2021, nearly all of the state COVID-19 restrictions have come to an end, including all capacity limits and distancing requirements, both indoors and outdoors. City Meetings-- Even before these most recent changes, the City Council and each of the City’s three advisory commissions have been meeting in person, and no longer are providing for remote participatory options. The only thing which is left to decide is the spacing of participants. With the most recent Executive Order change, the Council Chambers may revert to full occupancy (93 as defined by the Fire Marshall), with the pre-pandemic seating arrangements in both the City Council Chambers and in the large conference room. This means that the large conference room is now again available. Community Meetings:--In June, 2020, the City adopted City facility (City Hall and the Fire Training Room) meeting criteria for outside organizations. That policy is attached. In a nutshell, outside groups can reserve the City Council Chambers, large conference room in City Hall, or the Fire Training Room. However, unless it is a tax-supported agency (i.e. School Board, MNDOT, Dakota County), there is a room reservation charge, and a use fee, which offsets cleaning and set up costs. Because of the relaxation of the Executive Orders, and the number of people who have been vaccinated, there has been a recent uptick in the number of HOA’s and clubs who are looking to revert to face to face meetings at City Hall. While those could be accommodated, there is a concern about the amount of available meeting timeslots for when the City has need. Per the City’s policy, city hall facilities are available for rent on Monday, Wednesday, and Thursday evenings between 4:30pm and 10:00pm. Weekend rentals are not permitted. While Assuming that the School Board reverts to meeting in the Council Chambers, there would be only 11 evenings open for outside groups, and, perhaps more importantly for the City, and any special evening meetings of the City Council or city commissions. Recommendation: Given the difficulty that the City as had in finding dates when each of the Councilors are available, and that there may be additional meetings needed during the summer to decide on the City Administrator replacement, I recommend that the Council place “on hold” the reservation of City meeting spaces by outside groups, at least until that decision is made. Action Required: The Council should discuss this at its June 9th work session, and give direction. Mark McNeill City Administrator COMMUNITY USE OF CITY HALL and FIRE STATION FACILITIES REQUIREMENTS Mendota Heights City building facilities are intended to be used primarily for city staff and city government functions. The privilege of their use will be extended to Mendota Heights organizations and others consistent with these policy guidelines and subject to availability. City Hall and the Fire Station are tobacco-free and alcohol-free buildings, and the use of tobacco, electronic tobacco substitutes, or alcohol is not allowed in any area of either structure. The following facilities are available as formal meeting space: A. City Hall a. Council Chambers – theater style seating for approximately 60. Public access WIFI, laptop connection, ceiling mounted projector and projection screen are available. b. Large Conference Room - seating for 12 around a large conference table. c. Small Conference Room - seating for up to 6. B. Fire Station a. Training Room – classroom style seating for approximately 50. Public access WIFI available. b. Fire Station Conference Room – seating for up to 8. The number of participants that are able to use each facility shall be limited by any guidelines from the State of Minnesota, City of Mendota Heights, or applicable health organizations, which are in place at the time of use. The following policies will guide community use of these facilities: 1. SCHEDULING OF SPACE will be on a first-come, first served basis to non-profit organizations and resident groups that are based in Mendota Heights. Rental by others shall be on an “as available” basis. • City Hall facilities are available for rental on Monday, Wednesday, and Thursday evenings between 4:30 p.m. and 10:00 p.m. Weekend rentals are not permitted. • Fire Station facilities are on an “as available” basis. • Scheduling requests will be taken at City Hall. Requests will be reviewed and approved by the City Administrator or his/her designee. The City reserves the right to reschedule or cancel a reservation for any reason. • Reservations should be made at least 30 days in advance, but may not be made more than 90 days in advance. 2. USE BY FOR-PROFIT COMMERCIAL VENTURES or private use (i.e., family or social gatherings) are not permitted. 3. FEES FOR USE OF CITY BUILDING SPACE are as follows and due at time of reservation: a. Damage Deposit: A security/damage deposit must be submitted by all user groups. A deposit of $100 will be required on January 1st of each year for regular users of the facility; for one-time or occasional use, deposits of $100 will be required at the time the reservation form is filed. Payments for damage deposits and room rentals shall be made separately. Charges will be made against the deposit for damages done to furnishings or for costs incurred by the city for cleanup after a scheduled activity. The unused portion of the deposit will be returned to regular users within five days after their last use of the facilities in a year and to occasional or single time users within five days after the use. Users of the facilities and/or equipment will fully reimburse the city upon demand for the full cost of replacement or repair caused by damages to or destruction of the building, furniture, fixtures, equipment or any other property. There shall be one reservation per room each evening, so as to allow for adequate sanitizing between uses. b. Rental Rates: i. Fire Station: Use of either or both of the training room or conference room at the fire station shall be $100. An on-call firefighter shall be in the station throughout the reservation time. If fire personnel are not available a minimum of 72 hours in advance, the meeting is subject to cancellation. ii. City Hall: $50 for small or large conference rooms per event; $100 for City Council Chambers per event. The City Hall lobby is available at no extra charge, if reserved in conjunction with one of the other listed rooms. iii. Reservations and use by tax-funded organizations such as Independent School District 197, the Dakota County Extension Service, MNDOT; or by organizations which otherwise would charge the City for their services (i.e., classroom teaching benefitting Mendota Heights residents which would otherwise charge the City a fee) shall be exempt from rental charges 4. CANCELLATIONS AND REFUNDS. For cancellations made more than two (2) weeks in advance of the reservation date, a full refund of fees paid will be made. Cancellation notices received with less than two weeks’ notice will not receive a refund. 5. PRIOR TO GROUP USE. A representative of the organization must complete and file a reservation form. At least 24 hours prior to a City Hall event, a Mendota Heights resident must stop by City Hall to sign for the space requested, pick up keys, and receive instructions on how to use the building. Fire staffing will open and close the building. 6. CONDITION OF FACILITIES. The individual who signs and files the registration form will be responsible for ensuring that the keys are returned and that the building is left in appropriate condition, including but not limited to the following: furnishings and equipment have been returned to their designated or original locations, paper and other waste has been picked up and deposited in the designated containers, all doors have been locked and lights have been turned off. For Fire Hall reservations, fire personnel may undertake some of these activities, such as locking doors and turning off lights, but the applicable organization is expected to leave the building in appropriate condition, as described in this paragraph. No banners, posters, signs or decorations of any kind may be taped or placed on the walls. No confetti, glitter or candles with open flame are allowed. 7. FOOD AND BEVERAGES. Non-alcoholic beverages and light snacks requiring no preparation on site may be served in the large conference room, if prior approval is granted on the registration form. Users are responsible for bringing their own expendable supplies, coffee makers, dishes, etc., and for seeing that clean-up is completed. Note: the City Hall employee break room, and Fire Station lounge area are not available for use. 8. AUDIO-VISUAL EQUIPMENT, including overhead projector, screen, monitors or other similar equipment are available for use. Users may access public WIFI for internet connectivity and connect user laptop via HDMI or VGA connections to projection equipment. User groups are prohibited from accessing the City’s network. The City will not supply computer/laptop equipment. If equipment is damaged the cost of repair or replacement of the damaged equipment will be deducted from their facilities use damage deposit ($100.00) and any remaining balance will be refunded to the applicant. 9. STAFF TIME. If it is determined by the city that city staff should be on the City Hall premises during a scheduled use of the facilities, a charge equal to one and one-half of the employee’s hourly rate plus overhead will be charged to the user group. Staffing will be at the sole discretion of the city. Fire station usage shall be with a fire fighter on site at time of usage, as described in Section 3.b (i) above. 10. VARIANCES from this policy may be granted at the discretion of the City Council or City Administrator, as warranted. Requests for variances must be submitted in writing to the City Administrator a minimum of four (4) weeks prior to the scheduled date of the event. 11. USER ACKNOWLDGEMENTS—The City of Mendota Heights is not responsible for lost or stolen articles. The City of Mendota Heights is additionally not responsible for any injuries, death, or damage to individual personal property during renting of City facilities, unless the City intentionally creates such damage or is grossly negligent regarding the condition of its facilities. Renters agree to abide by all applicable ordinances, laws and requirements. Violations of policy may lead to expulsion, and the denial of future rental rights. Adopted: October 19, 1993 Amended: December 17, 2002 June 16, 2020 City of Mendota Heights 1101 Victoria Curve, Mendota Heights, MN 55118 City Hall Room Reservation Application The following information is needed to reserve meeting space at the City of Mendota Heights City Hall. Scheduling of space will be on a first come, first served basis. Reservations should be made at least 30 days in advance, but not more than 90 days. Payment must be received at the time of reservation. Make checks payable to: City of Mendota Heights DATA ADVISORY: The City of Mendota Heights is asking that you provide data which may include private information, pursuant to Minnesota Statute 13.04. This information will be used to validate and process your reservation request. While you are not legally required to provide any of the requested data, failure to provide information may result in delay or denial of your reservation application. USER INFORMATION ORGANIZATION NAME: PRIMARY CONTACT NAME: ADDRESS: CITY: STATE: ZIP CODE: EMAIL ADDRESS: PHONE NUMBER: ALTERNATE PHONE NUMBER: SECONDARY CONTACT NAME: SECONDARY CONTACT TITLE: EMAIL ADDRESS: PHONE NUMBER: ALTERNATE PHONE NUMBER: RESERVATION INFORMATION NOTE: City Hall facilities are available for rent Monday, Wednesday, and Thursday evenings between 4:30 pm and 10:00 pm. Date(s) Requested: Time Requested: From: To: Estimated Number In Attendance: Do you plan to serve food and/or beverages? YES NO Room Requested Fee/Use Council Chambers (Theater style seating for approximately 60 people) Use of Equipment: Overhead Projector and Screen $100.00 Large Conference Room (Table seating for up 12 people) $50.00 Small Conference Room (Table seating for up to 6 people) $50.00 FOR OFFICE USE ONLY Date Received: Approved Not Approved Payment: Check Cash Credit Card Receipt #: Reservation Recorded on Calendar: City of Mendota Heights Usage Release of Liability, Assumption of Risk, and Indemnification Agreement: On behalf of my organization, I acknowledge that the use of facilities and participation in any activities at City Hall is voluntary. I acknowledge that the use of facilities or participation in these activities carry with it certain inherent risks that cannot be eliminated regardless of the care taken to avoid injuries. Such risks include: (1) minor injuries such as bruises and sprains; (2) major injuries such as joint or back injuries, broken bones, and head injuries; (3) catastrophic injuries including paralysis and death; and (4) exposure to illness from infectious diseases including but not limited to methicillin-resistant Staphylococcus aureus (MRSA), influenza, and coronavirus disease 2019 (COVID- 19) . I and my organization knowingly and freely assume any and all risks, both known and unknown, while participating in activities at City Hall, even if arising from the negligence of the releases or others. Neither the City nor any person acting on behalf of the City may be held liable in any way for any event which occurs in connection with these activities that may result in harm, death, injury, illness or other damage. This waiver of liability does not waive liability for any injuries that I or anyone in my organization obtains as the result of willful, wanton or intentional misconduct by the City or any person acting on behalf of the City. I acknowledge that COVID-19 has been declared a worldwide pandemic by the World Health Organization. COVID- 19 is extremely contagious and is believed to spread mainly from person-to-person contact. The City has enacted preventative measures to reduce the spread of COVID-19. The City, however, cannot guarantee that participants in these activities will not become infected with COVID-19. I, on behalf of my organization, acknowledge the contagious nature of COVID-19 and voluntarily assume the risk I may be exposed to or infected by COVID-19 by participating in these activities. To the best of my knowledge, on behalf of my organization, neither I nor anyone in my organization have a physical or medical condition that would prevent me from participating in these activities. To the best of my knowledge, neither I nor anyone in my organization has any symptoms of COVID-19, including, without limitation, fever, cough, shortness of breath or difficulty breathing, chills, or muscle or body aches; or have a suspected or confirmed diagnosis of COVID- 19. I, on behalf of my organization, agree to comply with all rules related to these activities, including any applicable Governor’s Executive Order, Stay Safe Guidance, and policies related to social distancing, face covering, and personal hygiene to help prevent the transmission of COVID-19. If I or anyone in my organization observes any unusual or significant hazard during my participation in these activities, I will stop participating and immediately notify the nearest public official. I, for myself and on behalf of my heirs, assigns, personal representatives and next of kin, hereby release and hold harmless and agree to indemnify the City of Mendota Heights, its officers, officials, agents, employees, and/or volunteers, other participants, sponsoring agencies, and advertisers, and owners of premises used to conduct the event (“Releasees”) with respect to any illness, disability, death, or loss or damage to person or property, whether arising from the negligence of the Releasees or otherwise, to the fullest extent permitted by law. I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK AND INDEMNIFICATION AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTST BY SIGNING IT, AND SIGN IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT. X Signature Date Date: June 9, 2021 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: FY 22 Budget Discussion Comment: Introduction: The Council will be asked to provide feedback on budget preparation for the FY 22. Background: City staff traditionally discusses general budget parameters with the Council in early June (“Hold the line on taxes”, or “provide for this or that program”. However, because there are members of the Council which are new to the system, we wanted to provide an opportunity for a more in depth discussion. Items to consider for this year: 1. Equipment Replacement Reserve Fund”—There is a small balance in this fund ($493,000), and funding usually comes from one time sources. For this to do its intended mission—to someday allow for rolling equipment to be replaced without having to borrow money—the City should begin to levy for the replacements vehicles as they are acquired. A common formula is to levy for a proportionate depreciation amount. For example, the budget for next year will propose a firetruck that will have a life expectancy of 20 years, and will cost $850,000. To fund the equipment replacement fund, the budget should contain a levy for $42,500 (1/20 of the purchase amount) which would then be placed into the Equipment Replacement Reserve fund, and not be touched until the replacement truck is needed. (It’s short-term pain, long term gain.) 2. We have determined that the general fund balance at the end of December, 2020 has increased by $1.3 million over the previous year. The auditor will tell you at the next meeting that that is 106% of the balance. You may wish to consider drawing some of that down for one time expenditures (think fire trucks, skate parks, or doing design of a Police addition in order to have shelf-ready plans), instead of borrowing money or using portions of the Special Parks Fund. 3. On June 8th you will have completed the Parks Strategic visioning process, which will include a one year action plan. Any parks expenditures that you wish to make in FY 22 should be included here. 4. We will prepare a 5 year CIP. This is for durable items with a value of $5000 or more, but we should consider changing that threshold to $10,000. Traditionally, funding sources are very precise in the first year, but less so as the years go out. It is a planning document where we make the public aware of needs, but those needs change over the course of the 5 year term. We also simply don’t always have firm sources of funding for the larger projects that are farther out. However, it is important to have these on the radar, even if a firm way to pay for some of them hasn’t been identified. 5. We were informed on June 3rd that the City will receive $1.191 million in Federal stimulus monies through the American Rescue Plan--earlier communications had indicated that it would be in the vicinity of $2.1 million. It is strongly recommended that these funds be placed into a special fund, and not be intermingled in the general fund, or included in the FY22 budget. The City has until December 31, 2024 to commit these funds, which are for sewer, water and broadband expenditures. 6. If the Council is looking to add significant amounts of recreational programming, we will need to add staffing for that. We will be looking for additional instructions or thoughts from you at the June 9th work session. Mark McNeill City Administrator To: Personnel Involved With Budget Preparation From: Mark McNeill, City Administrator Subject: Budget Instructions for FY 2022 Date: June 21, 2021 COMMENT: Attached are the budget preparation sheets for the fiscal year starting January 1, 2022. Operating Budget--As with previous budgets for Mendota Heights, you are being provided with information containing the actual expenditures for 2020, this year’s (2021) approved budget, and space to make your budget requests for FY22. Base Budget—In the “Base Budget”, you should list only the line item expenditures needed to provide the same level of service in FY 22 as your department/division is providing currently; in effect, the same number of personnel or amount of services. Do not add any new programs. You should factor in known increases due to contracted increases, or anticipated inflationary amounts. The Finance Director and the Assistant City Administrator will fill in personnel costs for you; leave those blank. You should briefly note reasons for any major line item variations by adding an object code and explanation as a footnote at the bottom of the sheet; i.e. “4400-Conferences and Schools— Attendance at State Stormwater Resources Conference”. Improvement Package--Beyond the Base Budget, if you have an idea or proposal which would add something different than what your department/division is currently providing in FY 22, a separate sheet will need to be completed—any additional service or program will need be able to be considered as a “stand alone” proposal. For example, if the Recreation Division wants to have the City Council consider adding a full-time staff member to offer year-round lessons and recreation support, an “Improvement Package” listing what is being requested (i.e. a FT Recreation Programmer) along with personnel costs, supplies and any capital investments will need to be completed. In it, you will need to describe the source of funding, and impacts of funding/not funding the proposal. This is not to be interpreted that every increase in a line item over FY21 will need to have an Improvement Package sheet completed. For example, if Public Works wants the Council to approve an increase in their budgeted sand and salt purchases in FY22 from 1800 Tons to 2200 tons, that should only be listed in the base level line item request. The level of service is not changing—the City is still doing snow removal on the streets. Those proposing to eliminate a service or position should discuss that with the City Administrator. Capital Budget—Those of you having responsibility for preparation of the City’s capital budget (life expectancy of 5 years or more, and a cost of greater than $5,000), need to update your department’s CIP sheets for FY22. Schedule—Please be aware of the following dates for presentation to the City Council: Week of June 21st Budget Worksheets Distributed July 14th Worksheets Due to Finance July 19th-26th Review of Requests with Finance/Administration August A TBD Council holds workshops to review B TBD C TBD (if needed) September 7th (or 23rd) Preliminary Levy Set by September 30 Specific dates for Department reviews will be assigned. Please contact either Kristin Schabacker or me with any questions. Mark McNeill City Administrator Date: June 9, 2021 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: City Facility Naming Policies Comment: Introduction: The Council is asked to review and give direction on the process for naming options honoring individuals for City facilities. Background: The recent passing of former City Administrator/Public Works Director Jim Danielson created a suggestion that the City consider naming something in the City operations to recognize his many years of service to the Mendota Heights. However, other than naming opportunities for “In honor of” or “In memory of” park benches, Mendota Heights does not have a policy. In doing research, I found that the majority of other cities are in the same position. On a national search, I did find a recommendation against naming something for an individual who is still alive (i.e., Pete Rose Way in Cincinnati, Ohio). I then requested naming policies from other jurisdictions in Minnesota. I received four from cities, and also the naming policy from ISD 197. One of the policies received wasn’t applicable to the Mendota Heights situation, as it covered naming rights due to donations. Of the other three, Moorhead’s guidelines are probably the most comprehensive, especially the portions of the policies which discuss the naming or renaming of facilities or amenities. None of the policies identify hard and fast specifics—the naming criteria in each is very subjective (i.e.; “Demonstrates good character” and “Has made significant contributions or achievements”. There is usually either a review panel which looks at the proposal and makes a recommendation, or the City Council itself makes the decision after gathering input. One of the policies provides that the name would be reviewed again after the 50 year mark to make certain that the name was still appropriate. Whatever method is chosen, it should be remembered that it will be setting a precedent. Other factors which might be considered by a future committee or the City Council would be whether the individual being considered was an employee who received compensation for their work, or a volunteer, and whether that would make a difference when being considered for the memorial. Action Required: If the Council wants to establish a policy, it should consider directing staff to create a policy utilizing Moorhead’s as a model, but to include any other criteria from either the other policies, or individual Councilor input as appropriate. That would then be brought back to the Council for formal consideration at a future meeting. Mark McNeill City Administrator Date: June 9, 2021 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: Liquor License Fees Comment: Introduction: The Council is asked to give direction on whether it wants to make any changes to the fees charged for on-sale liquor licenses. Background: The Council approved liquor licenses for 2021-22 at the June 1st meeting. However, the City has been asked by two liquor license holder to reduce fees, as the restaurants’ owners indicate that that their businesses are still experiencing pandemic-related financial stress. See the attached memo from the City Clerk for additional information. Discussion: The American Rescue Plan will allow cities to replace revenues which are lost due to the pandemic, which may include fees which the City chooses to reduce to help local businesses. However, the same plan also has included $28.6 billion to help small restaurants in a separate account, and so that might be a more logical place to first send those who would qualify for that assistance. Recommendation: I recommend that we do not consider fee changes at this time, but instead wait to see whether local businesses who qualify financially have success in obtaining other Federal COVID relief. It is the choice of the Council as to whether it wishes to schedule a formal discussion of this topic at an upcoming City Council meeting. If it does, we will notify the license holders of the planned discussion. Mark McNeill City Administrator City Council Work Session Discussion DATE: June 9, 2021 TO: Mayor, City Council, and City Administrator FROM: Lorri Smith, City Clerk SUBJECT: Request for a Reduction of Liquor License Fees COMMENT: Introduction In light of the COVID19 pandemic which has caused the restaurants to be closed or open on a limited basis to the public, staff has received two requests from on-sale liquor licensees for a reduction in their license fees for this next licensing period. Background The liquor licensing period runs from July 1st - June 30th, and the licenses are renewed annually. Per our City Code language, the license fees are due by May 1st each year. Liquor license fees are meant to pay for license issuance, inspection, monitoring compliance (insurance, training, etc.), enforcement, and compliance checks of the licensee. A few Dakota County cities were surveyed to see what types of reductions they have allowed, if any. Responses received included: Budget Impact An estimate of the budget impact is as follows: Discussion The Council should discuss if they feel a reduction for on-sale liquor licensing fees is appropriate. Staff will then prepare a report for consideration at the June 15th, 2021 Council meeting.