Upon motion by Suzanne R. Weber, seconded by Brian P. McGrath, the following Ordinance was duly enacted, 3 voting in favor of enactment, 0 voting against enactment.
ORDINANCE NO. 94-11
An Ordinance of the Township of
Millcreek, Erie County, Pennsylvania providing for the licensing and regulation
of transient merchants; providing penalties for violation and including repealor and severability
clauses.
WHEREAS, Section 702(XXXIX) of the Second Class Township Code empowers Township Supervisors to license and regulate, by ordinance, transient retail merchants; and
WHEREAS, Sections 1801, et seq. of the Second Class Township Code establish provisions for the regulation and licensure of transient retail merchants; and
WHEREAS, Ordinances Nos. 88-7 and 89-20 of the Township of Millcreek in part regulate and provide for licensure of transient retail merchants; and
WHEREAS, the Board of Supervisors finds that provisions for regulation and licensure of transient retail merchants as set forth in Ordinances Nos. 88-7 and 89-20 have proven to be unduly confusing and have not made adequate provision for investigation of applicants and for proper regulation.
NOW, THEREFORE, BE IT ENACTED AND ORDAINED by the Supervisors of Millcreek Township, Erie County, Pennsylvania, and it is hereby ordained and enacted as follows:
SECTION 1. This
Ordinance shall supersede and repeal Ordinances Nos. 88-7 and 89-20 of the
SECTION
2. Definitions. For purposes of this Ordinance, the following
terms shall have the meanings indicated below:
The term “Applicant” shall mean all persons owning, operating,
conducting, or involved in the operation of a transient business.
The term “Person” shall include individuals, firms, corporations,
associations, clubs, societies and partnerships, whether the same may be the
principal, employee, or agent.
The term “Transient Merchant Ordinance” shall mean this ordinance.
The term “Transient Wholesale or Retail Business” shall include each and
every business conducted or proposed to be conducted within the Township of Millcreek
temporarily or for a continuous period of less than twelve (12) consecutive
months for the sale therein of any goods, wares or merchandise whatsoever, at
either wholesale or retail, in any room, apartment, store, shop, building,
railroad car, motor or other vehicle, stand, airplane, boat, open lot,
structure, establishment or other location other than by those persons
specifically exempted under Section 3, below.
SECTION 3. Exemptions. The term “transient wholesale or retail business” does not comprise, include or apply to the following persons:
(A) Any
persons who have had their principal place of business in the
(B)
Any person who has filed a bond with corporate
surety approved by the Township Solicitor in the sum of Two Thousand Five
Hundred Dollars ($2,500.00), with the Township as sole oblige therein,
conditioned to pay to the Township the monthly license fees as provided in this
Ordinance for the conduct of a transient wholesale or retail business in the
event that the principal of such bond should not continue and remain in such
business for a continuous period of twelve (12) consecutive months, unless
otherwise prevented by involuntary insolvency proceedings.
(C)
Farmers
selling their own produce.
(D)
The sale
of goods, wares, and merchandise, donated by the owners thereof, the
proceeds of which are to be applied to any charitable or philanthropic purpose.
(E)
Insurance
companies or their agents or
insurance brokers authorized to transact business under the Insurance Laws of
the
(F)
Any
persons taking orders for
merchandise, by sample from dealers or merchants. Nothing in this subsection shall exempt any
person selling to persons other than dealers or merchants.
(G)
Persons
conducting judicial or other sales under legal proceedings.
(H)
Any
manufacturer or producer in the sale of milk and milk products.
(I)
Commercial
travelers or sales agents selling only to dealers in the ordinary course of
business.
(J)
Merchants
previously established in the Township who are, by reason of fire or other
circumstances, compelled to lease temporarily until they can establish a
permanent location.
(K)
Persons who
do not sell from stock but exhibit samples only for the purpose of securing
orders for future delivery with payment due upon delivery only.
SECTION 4. Persons Not Exempted. No person who would otherwise be conducting, participating in or engaging in a transient wholesale or retail business shall be exempted from the provisions of this Ordinance by reason of being temporarily associated with any local dealer, trader, merchant or auctioneer or by reason of conducting such business in connection with or as a part of the business of any such local person.
SECTION 5. License Requirements. No person shall engage in any transient wholesale or retail business, whether as owner, agent, consignee or employee, and whether or not a resident of Millcreek Township, without first obtaining from the Township Treasurer/Comptroller a license for each person to be involved in the enterprise. No license shall be issued until such time as the applicant submits to the Township a copy of a sales and use tax license issued by the Pennsylvania Department of Revenue for the proposed enterprise or a certification by the Department that the enterprise is exempt therefrom. All persons licensed shall have in their possession at all times the license and/or identification card issued by the Township as provided herein.
SECTION 6. License Application; Fingerprinting.
(A) Application for such license shall be made and sworn to by the applicant on such form(s) as may be approved by the Board of Supervisors and to be supplied by the Township Treasurer/Comptroller. Such application shall set forth the following:
(1) The
applicant’s full name, address, Social Security or employer identification
number, date of birth, and status or position with the proposed enterprise, and
the names and addresses of all persons proposed to be put in charge or to
participate in conduct of the business.
(2) Full
information as to the applicant’s business character and prior business
experience.
(3) The
nature and character of the proposed business and the length of time the
business is intended to be conducted.
(4) Full
information of the nature, character and quality of the goods, wares and
merchandise to be sold or offered for sale, the invoice, value and quality of
such goods, wares and merchandise and the place where such goods, wares and
merchandise were produced.
(5) Representations
and advertising relating to such business proposed or intended to be made.
(6) The
place(s) or premises where such business is to be conducted, together with a summary
of the applicant’s agreement(s) with the owner of such place(s) and premises
relating to the applicant’s occupancy thereof.
(7) If
employed, the name and address of the employer, together with the credentials
establishing the precise employment relationship.
(8) If
a vehicle is to be used in the conduct of the business, a description of the
same and the vehicle identification and registration numbers for such
vehicle(s).
(9) Two
(2) photographs of each individual applicant taken within sixty (60) days prior
to the date of application, which photographs shall be two inches (2”) by two
inches (2”) in size, showing the head and shoulders of the applicant in a clear
and distinguishing manner, the name of the person noted on the reverse side of
each photograph.
(10) A
statement as to whether the applicant has ever been convicted or pled guilty or
no contest to a misdemeanor or felony criminal offense and, if so, the criminal
offenses, court, date of conviction or plea, and disposition.
(B) In
addition, each applicant shall be required to have his or her fingerprints
taken and shall, at the time of application, pay to the Township an
investigation fee of $25.00. Each
applicant shall be obligated to complete such documents in connection with such
fingerprinting and investigation as the Township may require, which documents
shall include but not be limited to an authorization allowing the Township to
obtain criminal history information concerning the applicant and applicant’s
release of the Township and its Police Department with regard to acquisition of
such information.
SECTION 7. Investigation of Applicant; Denial of Application. Upon receipt of the application required, the Township Supervisors or their designee shall cause such investigation of the applicant’s business responsibility and moral character to be made as the Supervisors deem necessary to the protection of the public good and welfare. If, as a result of such investigation, the applicant’s character and business responsibility are found to be unsatisfactory, the application shall be denied. Any false statement made upon an application shall be just cause for denial of an application or for revocation of any license issued in reliance upon the false statement. The Township shall make its determination upon each application within five (5) business days after its receipt of requested criminal history information.
SECTION 8. Bond. Before a license shall be issued, the applicant shall execute and deliver to the Township Treasurer/Comptroller a bond with corporate surety approved by the Township Solicitor in the sum of $5,000.00, which bond shall be conditioned that the applicant shall fully comply with all of the provisions of the ordinances of the Township and statutes of the Commonwealth of Pennsylvania regulating and concerning the sale of goods, wares and merchandise and will pay all judgments rendered against such applicant for any violations of such ordinances or statutes.
SECTION 9. License Fee; Term. The amount of such license fee shall be Twenty-Five Dollars ($25.00) for each month or fractional part thereof during which a person shall conduct or engage in a transient wholesale or retail business within the Township. Such license fee shall be paid by all persons conducting or engaged in the enterprise prior to issuance of a license. The license shall extend for a period of one (1) month from the date of its issuance, unless sooner revoked, and shall be renewed monthly during the continuation of such business.
SECTION 10. Issuance of License. Upon payment of the investigation fee, receipt by the Township of all application forms, bond and other documents required and completion of investigation, the Township Supervisors or their designee shall, upon payment of the fee of $25.00 therefor, issue a license to an applicant who is found to be of satisfactorily responsible and of good moral character. The Township Secretary shall maintain a registration book setting forth the date of issuance and denial of all licenses and the names and addresses of the applicants therefor. The Township shall maintain a file on applications for licenses which shall include the application(s), photographs, criminal history investigation and other documents obtained. Such files shall be maintained for at least two (2) years after cessation of the transient wholesale or retail business enterprise. Each license issued shall be numbered and state the kind of goods to be sold thereunder, the name of the licenses, the dates of issuance and expiration and have attached thereto one of the photographs supplied by the applicant. Upon expiration of the monthly license term, the Township Supervisors or their designee shall have authority to renew a license issued, upon payment of the monthly license fee, or to deny reissuance if, upon investigation, it is determined that the applicant has failed to comply fully with all applicable ordinances and laws.
SECTION 11. Enforcement. It shall be the duty of the Township Secretary or any duly appointed designee to ensure the proper enforcement of the provisions of this Ordinance, and any such officer shall have the power, in the name of the Township, to institute proceedings against any or all persons for the collection of any taxes or license fees or for violation of any of the provisions of this Ordinance. If such suits are by process of summary conviction, in addition to the requirements of service under the Rules of Criminal Procedure, the Township Secretary or any duly appointed designee may issue an immediate citation for violations for which criminal proceedings lie.
SECTION 12. Revocation. Any
license issued pursuant to this Ordinance may be revoked by the Township
Secretary at any time he or she is satisfied that the applicant/licensee
furnished false and/or incomplete information to secure a license or in the
event a licensed person is convicted of disorderly conduct or any other
summary, misdemeanor or felony criminal offense. Notice of revocation shall be sent to the licensee
at the address set forth on the application for license, via
SECTION 13. Violations and Penalties. Any person who violates any provision of this
Ordinance, upon conviction thereof, shall be fined not less than Three Hundred
Dollars ($300.00) and not more than Six Hundred Dollars ($600.00), plus costs,
or be imprisoned not more than ninety (90) days, or both. Each day during which any person shall
conduct or engage or participate in a transient wholesale or retail business
within the boundaries of
SECTION 14. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance or its application to any person or circumstances is for any reason held invalid or unconstitutional by any court, such holding shall not be construed to affect the validity of any of the remaining provisions of this Ordinance or its application, for such portion shall be deemed as a separate, distinct and independent provision from the remaining provisions which shall be and remain in full force and effect. It is hereby declared the legislative intent that this Ordinance would have been adopted had such invalid or unconstitutional provision of its application not been included herein.
SECTION 15. Repealor. All Ordinances or parts of any Ordinance inconsistent herewith are hereby repealed.
BE IT ENACTED this 9th day of May, 1994.
Jess S. Jiuliante,
III /
Chairman
Suzanne R.
Weber /
Brian P. McGrath /
I hereby certify that
I am the duly appointed Secretary of the
Jess
Jess
Secretary