ORDINANCE NO.  8477

AN ORDINANCE OF THE CITY OF LAWRENCE, KANSAS ENACTING ARTICLE 16 OF CHAPTER VI OF THE CITY CODE, ESTABLISHING A LICENSING SCHEME FOR THE SOLICITATION OF DONATIONS WITHIN THE CITY OF LAWRENCE.

Whereas, the Governing Body of the City of Lawrence, Kansas is entrusted with the responsibility to establish reasonable laws, policies and regulations to further the general public health, safety, welfare, and economic vitality of the community; and

Whereas, the City of Lawrence has a significant interest in preserving the quality of life of its citizens and preserving its public places as areas where its citizens and visitors can be free of intimidation or coercion, and aggressive or intimidating solicitations for donations jeopardize that interest; and

Whereas, licensure advances the public’s safety interests by helping to provide a better means of identification of those individuals who engage in aggressive, intimidating or fraudulent solicitations and increases the accountability of those who solicit donations; and

Whereas, licensure is a superior means of identifying and addressing the problems caused by recidivist offenders; and

Whereas, the Governing Body desires to enact content neutral time, place and manner restrictions on the solicitation of donations that are narrowly tailored to advance these significant governmental interests, while leaving open ample alternative channels of communication and complying with the law regarding prior restraints.  

NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:

Section  1.  Article 16 of Chapter VI of the Code of the City of Lawrence, Kansas 2009 edition and amendments thereto is hereby enacted to read as follows:

ARTICLE 16.  SOLICITATION OF DONATIONS

6-1601 DEFINITIONS

(A) “Fraudulent solicitation” shall mean any solicitation of donation where a false or misleading statement that is material to the transaction is knowingly made by the person making the solicitation of donation.  Such false or misleading statements include but are not limited to any of the following, whether made orally or in writing:

(1) Stating that the donation is to meet a specific need when the person already has enough resources to meet that need and fails to disclose that fact.

(2) Stating the donation is needed to meet a need that does not exist.

(3) Stating that the solicitor is from out of town and stranded when that is not true.

(4) Wearing a uniform or other indication of military service when the solicitor is neither a present or former member of the service indicated, unless the solicitor affirmatively discloses that fact to the person being solicited prior to the solicitation.

(5) Wearing, displaying, or claiming to have any physical or mental disability when the solicitor does not suffer from the disability indicated.

(6) Use of any makeup or device to simulate any deformity, unless the solicitor affirmatively discloses that fact to the person being solicited prior to the solicitation.

(7) Stating that the person is homeless when he or she is not.

(B) “Member of the public” shall mean any individual a solicitor does not have an existing specific and identifiable familial relationship or social acquaintance with at the time of the solicitation of donation.

(C) “Public Place” shall mean all public streets, alleys, sidewalks, parking lots, trails, roadways, parks and recreational facilities.

(D) “Social acquaintance” shall not include any introduction or acquaintance made in close proximity to the time of the solicitation of a donation, such that a reasonable person would conclude that the introduction or acquaintance was made with a primary purpose of facilitating the solicitation of donation. 

(E) “Solicitation of donation” shall mean any in-person request for or solicitation of an immediate donation of money or any other thing of value directed to a member of the public.  A request or solicitation to purchase an item for an amount far exceeding its value, in circumstances where a reasonable person would understand that the purchase is in substance a donation, constitutes a solicitation of donation.  The act of passively standing, sitting, or engaging in a musical performance or other street performance with a sign or other indication that donations are being sought, without any verbal request for a donation other than in response to an inquiry by another person, shall not be considered a solicitation of donation.

6-1602 EXCLUSION FROM GENERAL PROVISIONS

The provisions of Article 1 of this Chapter shall not apply to licenses issued under this Article.

6-1603        LICENSE REQUIRED

It shall be unlawful for any person to solicit a donation without possessing a currently effective license or temporary license issued to such person pursuant to this Article provided either the solicitor or the person being solicited is in a public place. 

6-1604 PENALTY FOR VIOLATION

(A) Any person who violates the license requirement of this Article or knowingly makes a material misstatement in any application under this Article shall be punished by a fine not to exceed $500, or incarceration of not more than 30 days in jail, or both such fine and jail sentence.

(B) A person who has been charged with violating the license requirement of this Article may have that charge dismissed if he or she submits a complete application for licensure under this Article before the end of the third business day following the date he or she is served with a notice to appear for the charge, provided that the person has not previously had a charge dismissed pursuant to this section. 

6-1605 LICENSE TERM AND TRANSFER          

Any license issued under this Article is for the term of one year.  Such license is issued to a specific individual and may not be transferred to any other person.

6-1606 LICENSE FEE

No fee shall be charged for any license issued under this Article.

6-1607 APPLICATION FOR LICENSURE

(A) Application for licensure shall be made to the City Clerk.  A copy of the application, provided that it is sufficiently complete to allow it to be processed, shall be signed by the City Clerk or his or her designee and given to the applicant.  This copy of the application shall serve as a temporary license until the application is either approved or denied.

(B) Application shall be made on a form provided by the City Clerk for that purpose.  Incomplete applications may be rejected by the City Clerk or his or her designee, except that no application shall be rejected as incomplete for the reason that the applicant is unable to provide a permanent living address.  As part of the application process, the applicant shall be photographed and shall present a government-issued identification with his or her photograph.  If the applicant does not have a government-issued identification with his or her photograph then he or she shall sign a notarized statement attesting to his or her identity and the fact he or she does not have the identification required by this section.    

(C) The City Clerk shall render a licensing decision and, if the application is granted, issue a license within ten business days of the application.  If the license application is rejected then a notice of the rejection and the reasons for the denial will be prepared and served on the applicant by personal service or certified mail, to the licensee’s currently registered address, if known, and provided such address receives mail service.  Certified mail notice will be deemed complete when it is mailed.  The applicant may appeal to the City Commission pursuant to the appeals section of this Article.

(D) The application shall be granted and a license issued unless:

(1) The applicant materially misstates any information in his or her application.

(2) The applicant has been convicted of a violation of this Article two or more times within the preceding two years.

(3) The applicant has been convicted of a violation of Section 14-418 of the City Code, Aggressive Panhandling, within the preceding year. 

(4) The applicant has had a license issued under this Article revoked within the preceding year.

(5) The applicant has been convicted two or more times in the preceding two years for a violation of any jurisdiction’s law that prohibits fraudulent, aggressive or intimidating solicitation, panhandling or begging.

(E) At the time of license application the City Clerk or his or her designee shall make available to any applicant who requests such information a summary of currently available programs in the City that would allow the applicant to meet his or her basic needs without resorting to the solicitation of donations.

(F) At the time of application the City Clerk shall provide the licensee with a copy of this Article and of Section 14-418 of the City Code, if requested, at no charge.

6-1608 LICENSE CONDITIONS

A license or temporary license issued pursuant to this Article shall be subject to revocation if:

(A) The licensee materially misstated any information in his or her application for licensure.

(B) Substantial evidence exists that the licensee has committed one or more violations of Section 14-418 of the City Code, Aggressive Panhandling, while licensed.

(C) The applicant has engaged in fraudulent solicitation.

(D) The applicant would be unable to qualify for a license under Section 6-1607(D).

(E) The licensee engages in the activity regulated by this Article, and:

(1) solicits a donation without the license in his or her possession, or

(2) fails or refuses to produce his or her license for inspection upon the request of any person.

(G) The licensee voluntarily lends or gives his or her license to another for the other’s use.

(H) Any material change occurs in the information provided during license application, including current address, and the licensee fails to update his or her information with the City Clerk within 10 days.  

6-1609 REVOCATION OF LICENSE

If a licensee violates the conditions of his or her license, the City Clerk shall order revocation of that license.  Written notice shall be provided to the licensee by personal service or certified mail to the licensee’s currently registered address, if known, and provided such address receives mail service.  Certified mail notice will be deemed complete when it is mailed.  The notice shall specifically describe the reasons for the revocation and the appeal rights afforded by Section 6-1610. 

6-1610 APPEALS

(A) Appeals from a decision to deny a license application or to revoke a license shall be made within ten business days of the service of the notice of the contested action.  If an appeal is not filed in the time provided, the City Clerk’s decision will be final and all licenses, including temporary licenses, issued in the licensing action shall have no further force or effect.

(B) An appeal shall be perfected by filing a written notice of appeal with the City Clerk specifying the decision that is being appealed.

(C) The appeal shall be heard by the City Commission.  The City Commission shall determine the matter de novo.

(D) The appeal shall be heard by the City Commission as soon as it is practicable to do so.  The City Clerk or his or her designee shall have the burden to present evidence sufficient to justify the contested action.   

(E) Any current license, including a temporary license, shall remain in effect until the time for appeal is exhausted or the appeal process is completed.

(F) If the City Commission elects, after hearing and due consideration of the law and the evidence, to deny the application or revoke the license then all licenses, including temporary licenses, issued in the licensing action shall have no further force or effect.

(G) If the applicant or licensee is aggrieved by the decision of the City Commission, he or she may seek judicial review in the manner provided by law.  City staff will attempt to expedite such judicial review when possible.

6-1611 SEVERABILITY

If any section, clause, sentence, or phrase of this ordinance is found to be unconstitutional or is otherwise held invalid by any court of competent jurisdiction, it shall not affect the validity of any remaining parts of this ordinance.

Section 2.  Effective Date.  This ordinance shall take effect and be in full force and effect following its adoption and publication as provided by law.

Adopted this ________________ day of  ________________, 2009.

PASSED:

Robert Chestnut, Mayor

ATTEST:

Jonathan Douglass, City Clerk

APPROVED AS TO FORM AND LEGALITY:

Toni Ramirez Wheeler, Director of Legal Services