Loading...
Ordinance 90-2694 ORDINANCE NO. 90-2694 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 38 OF THE MIAMI BEACH CITY CODE ENTITLED "SOLICITATIONS" BY AMENDING SECTION 38-1 ENTITLED "DEFINITIONS" VIA THE ADDITION THERETO OF THE FOLLOWING DEFINED TERMS: "COST OF FUNDRAISING"; "RELIGIOUS INSTITUTIONS"; AND "EDUCATIONAL INSTITUTIONS"; AMENDING SECTION 38-2 ENTITLED "SOLICITATIONS BOARD" BY DELETING THEREFROM PROVISIONS GOVERNING MIAMI BEACH POLICE INVESTIGATIVE ASSISTANCE; AMENDING SECTION 38-4 ENTITLED "ISSUANCE OF PERMITS; HEARING PROCEDURES" BY ESTABLISHING A 30-DAY TIME PERIOD WITHIN WHICH APPEALS OF PERMIT DENIALS TO THE CITY MANAGER SHALL OCCUR; AMENDING SECTION 38-6 ENTITLED "REGISTRATION REQUIREMENTS" BY REQUIRING APPLICANTS TO SUBMIT FINANCIAL REPORTS; AMENDING SECTION 38-7 ENTITLED "REGISTRATION FORMS; AND PUBLIC DISCLOSURE" BY PROVIDING THAT ALL REGISTRATION STATEMENTS FILED WITH THE CITY OF MIAMI BEACH SHALL BE PUBLIC RECORDS; ADDING SECTION 38-10. 1 ENTITLED "PROVISIONS CUMULATIVE", SAID SECTION MANDATING COMPLIANCE WITH THIS CHAPTER AS WELL AS ALL OTHER VALID AND APPLICABLE LAWS PERTAINING TO THE SOLICITATION OF FUNDS OR RELATED ACTIVITY; AMENDING SECTION 38-12 ENTITLED "EXEMPTIONS" BY ADDING THERETO ORGANIZATIONS OR ENTITIES WITH TAX EXEMPT STATUS UNDER SECTION 501 (c) (3) OF THE INTERNAL REVENUE CODE, ORGANIZATIONS OR ENTITIES WITH STATE SALES TAX EXEMPT STATUS UNDER FLORIDA STATUTE SECTION 212 .08 (7) , BONAFIDE RELIGIOUS INSTITUTIONS AND EDUCATIONAL INSTITUTIONS, AND BY PROVIDING THAT NON- EXEMPT PERSONS OR ORGANIZATIONS SPENDING IN EXCESS OF 50% OF INCOME ON COST OF FUNDRAISING MAY SOLICIT UPON THE PROVISION OF DETAILED INFORMATION REGARDING HOW MONIES ARE SPENT; PROVIDING FOR REPEALER; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA. SECTION 1. That Chapter 38 of the Miami Beach City Code governing "Solicitations" be and the same is hereby amended to read as follows: Sec. 38-1. Definitions. For the purposes of complying with this Ordinance, the following definitions shall apply: (a) Solicitations shall mean and include all direct person-to- person requests for contributions for any religious, political, associational, educational, benevolent, health-related, humane, philanthropic, patriotic, or eleemosynary function, event, organization or purpose, or for any charitable cause. The term "solicitations" shall include, but is not limited to, requests for contributions on any street or sidewalk, at any restaurant or hotel or by means of door-to-door requests for contributions, and 1 requests for contributions within, at, or adjacent to any public event or public forum. The term "solicitation" shall also include the request for contributions in connection with any fair, bazaar, rummage sale, benefit or carnival. A solicitation shall be deemed to have taken place when the request is made, whether or not the person making the request receives any contribution. "Solicitations" shall not include requests made by telephonic, television, radio, mailings, posters or other similar indirect and non-personal written or electronic communications. "Solicitations" shall also include the sale or offer, or attempt to sell or offer, any advertising, book, card, tag, device, magazine, membership, merchandise subscription, flower, ticket, candy, cookie or other item, new or used, in connection with any organization, cause or purpose described above. (b) Contributions shall be defined to mean donations, fees, commissions, promises or grants of any money, property, service, credit or financial assistance of any kind or value in connection with any purpose described in subsection (a) above. (c) Charitable cause shall include all religious, benevolent, philanthropic, patriotic, eleemosynary, health, educational, social-welfare, arts or humanities, civic or public interest purpose, function, organization, party, activity or movement. (d) Income shall mean the gross amount of contributions received from the public by a person or an organization during its fiscal year. (e) Person shall mean any individual, school, party, church, religious or other association, organization, trust, foundation, group, association, partnership, corporation, society or other entity. (f) Professional solicitor shall mean any person who, for a financial consideration, solicits contributions for or on behalf of a charitable cause or organization whether such solicitation is performed personally or through agents, servants, or employees. A bona fide salaried officer or employee of a charitable cause or organization maintaining a permanent establishment within the state 2 shall not be deemed to be a professional solicitor. However, any bona fide salaried officer or employee of a charitable organization who engages in the solicitation of contributions in any manner for more than one charitable organization shall be deemed a professional solicitor. (g) "Cost of Fund-raising" shall mean all expenses incurred in soliciting contributions, including, but not limited to, cost of goods sold or services purchased; expenses incurred for employee salaries, printed materials; office space; telephones; and advertising; and expenses incurred for the services performed by or through a professional solicitor. (h) 1. "Religious Institutions" shall mean churches, ecclesiastical or denominational organizations, or established physical places for worship in this state at which nonprofit religious services and activities are regularly conducted and carried on, and includes those bona fide religious groups which do not maintain specific places of worship. 2 . "Religious Institutions" also includes such separate groups or corporations which form an integral part of those institutions described in subparagraph (h) (1) hereinabove which are exempt from Federal Income Tax as exempt organizations under the provisions of §501 (c) (3) of the Internal Revenue Code, and which are not primarily supported by funds solicited outside their own membership or congregation. (i) "Educational Institutions" shall mean those institutions and organizations described in Fla. Stat. §212 . 08 (7) (0) 2 .d. Sec. 38-2 . Solicitations board. An eleven member solicitations board is hereby created to serve without compensation, to be composed of the city manager or his or her designate and the city attorney or his or her designate; one representative each from the Miami Beach Chamber of Commerce, and the Miami Beach Jaycees (the latter two to be designated by the city manager for a term of two years) ; and one person to be appointed by each city commissioner, to serve until sixty days 3 after the following city commission election. The board shall choose its own chairman. The board shall receive, and maintain on file with the city all materials submitted or collected in connection with solicitation permits under this chapter and shall allow inspection of all such materials by any person. The Board shall issue or deny solicitations permits solely in accordance with the rules of this chapter, and may conduct meetings. The board ohal1 have thc right to obtain invc3tigativc a33i3tance from thc Miami Beach Police Dcpartment undcr this chapter. Sec. 38-3. Recommendations of board. Upon receipt and review of the properly certified forms described below or required by board rules, the solicitations board shall promptly grant or deny a permit to solicit to the person seeking to solicit within the City of Miami Beach. A permit may be denied on the grounds that the person or organization filing the necessary documents has failed to disclose the required information, or has failed to provide an explanation for the omission,— (as set forth in Section 38-6 (q) herein) , or has filed a registration statement which the applicant knows to contain a false or misleading statement. Sec. 38-4. Issuance of permits; hearing procedures. In the event the board denies an application for a permit, the applicant may appeal the denial to the city manager within 30 days after the date of said denial and after hearing, a written statement shall be issued by the city manager stating his decision and explaining the basis for it. No permit shall be denied except for failure to satisfy the requirements of this chapter, or for failure to satisfy the board' s rules adopted under section 38-13 below, or for failure to provide an explanation for any omission on a registration statement,— (as set forth in Section 38-6 (q) herein) , or for knowingly filing a registration statement containing false or misleading statements. 4 Sec. 38-5. Registration. No person shall solicit or seek contributions within the City of Miami Beach until the required registration materials have been properly filed and a valid permit has been issued. Sec. 38-6. Registration requirements. To obtain a permit under this chapter, a registration statement must be filed with the solicitations board, disclosing fully and truthfully the information listed below. However, the solicitations board may reduce or eliminate any of these disclosure requirements, provided such reduction or elimination is applied equally to all applicants. (a) Name and address of the person seeking a permit. (b) Names and addresses of all individuals within the City of Miami Beach who will be soliciting or seeking contributions on behalf of said persons. (c) Complete and precise description of the purpose(s) for which solicitations will be made. (d) The type of legal entity involved, where and when such entity was organized, and whether the organization or entity has received tax-exempt status from the United States Internal Revenue Services or has received state sales tax exempt status under Florida statute section 212 . 08 (7) . (e) Whether the person seeking the permit is related to any business entity or organization, the nature of that relationship, and the name of any parent or associated organizations. (f) A precise description of the manner(s) in which solicitations will be made or contributions sought. (g) Whether the person has previously solicited in the City of Miami Beach, and if se known, when. (h) Whether the person has ever been enjoined or prohibited from soliciting contributions in any location. (i) A statement of how income, if any, has bccn used in the two prior years. The dates on which the applicant intends to solicit. 5 (j ) The name and addresses of all professional solicitors involved with the applicant. (k) The names and addresses of all officers and directors or other persons responsible for the activities of the applicant. (1) The names and addresses of all persons having financial responsibility for the applicant, including those having custody of all contributions obtained. (m) A projected schedule of all salaries, overhead and fund- raising costs, and an estimated percentage of the total projected collections which the such costs of solicitation will comprise. (n) Whether the applicant is registered as a corporation in the State of Florida. (o) Whether the applicant employs an accountant or accounting firm, and if so, the names thereof. (p) Whcthcr tThe applicant has shall attach a current financial report for the immediate past fiscal year or period of fund-raising activity, and if 30, a copy of said financial report, which report shall include the following information: A. The total amount of contributions raised. B. The total costs and expenses incurred in raising contributions. C. The total amount of contributions dedicated to the stated purpose or dispersed for the stated purpose. (q) An explanation of the reasons, if the person registering is unable to provide any of the foregoing information,— in items (a) - (o) hereinabove, why such information is not available. (r) The dates on which the applicant intends to solicit. Sec. 38-7 . Registration forms and Public Disclosure. (a) The solicitations board may prepare registration forms to be answered, executed, notarized and submitted by persons seeking to solicit or intending to seek contributions within the City of Miami Beach. The person submitting the form, along with the chief officer of, or other person responsible for the organization,, may shall be required by the board to certify under oath, in notarized 6 form, that all information furnished therein is true and correct. (b) All registration statements filed with the City of Miami Beach, whether or not a permit to solicit has been issued, shall be a public record and shall be available for inspection by members of the public during regular business hours. Copies may be obtained at the fees prescribed by law for copies of City records. Sec. 38-8. Issuance of solicitations permits. A numbered solicitations permit may be issued, pursuant to sections 38-3 and 38-4 above, for a period not exceeding six months. All solicitors or persons seeking contributions on behalf of the registrant within the city shall be issued a copy of said permit, which shall contain the name of the registrant' s organization and the permit number thereon, and the name and address of the individual solicitor. Every individual solicitor shall carry on his person at all times while soliciting a copy of said permit, which may not be transferred to any other person or organization, and which shall be returned to the city upon expiration. Sec. 38-9. Permit fee. All persons seeking a permit under this chapter shall remit to the city a fee of ten dollars for the permit to compensate the city for the cost of administering this chapter, and such fee will not be refunded if a permit is not issued. Sec. 38-10. Enforcement of "No Solicitor,' signs. Any home owner, business or tenant seeking to exclude solicitors from their premises may post a clearly visible sign or notice so stating. Persons violating such notice shall be subject to arrest and subject to the penalties provided below, in addition to any other civil or criminal penalties which may exist. Sec. 38-10. 1. Provisions cumulative. The provisions of this chapter are cumulative of any other valid 7 and applicable laws, rules or regulations governing the solicitation of funds or any activity which may be associated therewith. Compliance with this chapter shall not be deemed to excuse compliance with any other valid and applicable laws, rules or regulations governing the solicitation of funds or any activity which may be associated therewith. Sec. 38-11. Receipts for contributions. It shall be unlawful for any person to solicit contributions without providing each donor or contributor a signed receipt for any contribution exceeding ten dollars. Each receipt shall state the name of the person receiving the contribution and the permit number issued under section 38-8 above. Sec. 38-12 . Exemptions. The registration requirements of this chapter shall not apply to (i) any organization or entity soliciting or seeking contributions solely among its own membership; (ii) activities conducted solely within private homes or dwellings; (iii) any governmental organization; (iv) any person or entity properly registered by the Secretary of State pursuant to Chapter 496, Fla. Stat. (1981) , provided the applicant submits to the solicitations board copies of state registration materials which disclose substantially all the information required for disclosure under Sec. 38-6 of this chapter; (v) any fund-raising by political candidates or political organizations rcgi3tcrcd undcr or subjcct to the provisions of Chaptcrs 111 of 10G, Fla. Stat. (1981) , Chapter 10, Art. I, Miami B ach Codc, solicited in accordance with the election laws of Florida, or equivalent local, state or federal campaign fund-raising laws; (vi) any organization or entity which has received tax-exempt status from the United States Internal Revenue Service, pursuant to §501 (c) (3) of the Internal Revenue Code; (vii) any organization or entity with state sales tax exempt status under Florida statute section 212 . 08 (7) ; (viii) bonafide religious institutions; and (ix) educational institutions. 8 However, no A person or organization which is not exempt from the registration requirements of this Chapter and which represents that its primary purpose is to provide money or services to the poor, the needy, or other such charitable causes, or for educational or religious purposes, shall not solicit on Miami Beach, or be granted a permit to solicit on Miami Beach, which if it spends in excess of fifty percent of its income on the cost of fundraising oalarics, operating expenses and/or cost of professional solicitors, cxccpt said fifty percent limitation shall not operate as a bar to obtaining a permit when the applicant and/or organization demonstrates the reasonableness of its costs of soliciting, nonetheless, this fifty perccnt requirement shall not apply to any of information on matters of public concern. unless said person or organization provides to the solicitations board information detailing how said monies are spent, with copies of receipts concerning said expenditures (or, if no such receipts are available, an explanation of the reasons why said receipts are not available) . The solicitations board may require any organization to submit an audited annual financial otatcmcnt report with such information as may be appropriate to verify compliance with this requirement. Sec. 38-13. Rule-making authority. The solicitations board is hereby empowered and delegated the authority to adopt, with the approval of the city attorney and the ratification of the city commission, written rules to administer and enforce the provisions of this chapter. The solicitations board shall adopt written rules of procedure, with the approval of the city attorney and the ratification of the city commission, to govern the conduct of its meetings and all hearings under section 38-4 . The board is specifically authorized to adopt rules by majority vote, subject to the city attorney's approval and city commission's ratification, to govern the conduct of its members, including removal of members who fail to attend three or more 9 scheduled board meetings without good cause. The solicitations board may permit temporary solicitations without registration, or by means of lesser registration requirements, in cases of actual hardship, or to reasonably limit the absolute number of solicitors engaged in solicitation activities in the city at any one time, provided prior written rules are adopted for this purpose and approved by the city attorney and ratified by the city commission. Upon adoption by the board of any administrative rule, and the approval of said rule by the city attorney, the rule shall be brought before the Miami Beach city commission for discussion, at which time the city commission shall approve or disapprove the rule by majority vote; a copy of these rules shall be available for public inspection in the city clerk' s office during normal business hours. Sec. 38-14. Prohibited activities. No person subject to this chapter shall harass or seek to intimidate any other person who has indicated a desire not to contribute to a charitable purpose, as defined above. It shall be illegal for any person subject to this chapter to solicit or seek contributions by making false or misleading statements to a prospective contributor. Sec. 38-15. Penalties. Any person or organization violating any of the provisions of this chapter shall be subject to forfeiture or suspension of their permits and may be excluded by the city manager from solicitation activities within the city for a period not exceeding two years, in accordance with properly promulgated rules. In addition, violators may be arrested, charged and prosecuted with a violation of this ordinance and, if convicted, shall be subject to the following penalties: (i) Upon conviction for the first offense, a fine not exceeding five hundred dollars shall be imposed; (ii) Upon conviction for the second offense, a fine not exceeding one thousand dollars and a sentence of imprisonment not exceeding three 10 days shall be imposed; (iii) Upon conviction for the third and subsequent offenses, a fine not exceeding five thousand dollars and a sentence of imprisonment not exceeding thirty days shall be imposed. SECTION 2 . REPEALER All Ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 3. SEVERABILITY If any section, sentence, clause or phrase of this ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this ordinance. SECTION 4. EFFECTIVE DATE This ordinance shall take effect ten (10) days after its adoption, on June 2, , 1990. PASSED and ADOPTED this 23rd day of May 1.y. 047 MA •R ATTEST: CITY uLERK JKO/rg/jcl (Recommended by the Miami Beach Solicitations Board) 1st reading 5/9/90 2nd reading 5/23/90 (as amended) FORM APPROVED LEG k L D By ` J 2 3_`i` s Date 11 • i-1 7. OFFICE OF THE CITY ATTORNEY 0/07. . -dVead , F L O R I D A -frem 81' *�.INCDA��()RATfD*��' P.O. BOX O LAURENCE FEINGOLD ^, �;�h CITY ATTORNEY *R'�Nj6�� MIAMI BEACH. FLORIDA 33'19-2032 TELEPHONE i 305)673-7470 COMMISSION MEMORANDUM ' _SS Ci TELECOPY (305)673-7002 DATE: MAY 1, 1990 TO: Mayor Alex Daoud and Members of the City Commission FROM: Laurence Feingold i City Attorney SUBJECT: AMENDMENTS TO MIAMI BEACH CITY CODE CHAPTER 38 GOVERNING "SOLICITATIONS"" Chapter 38 of the Miami Beach City Code governing "Solicitations" is being amended for the purposes of clarifying certain provisions therein and ensuring conformity of said Chapter to general constitutions guarantees concerning an individual 's or organization's right to solicit. Specifically, the proposed changes to Chapter 38 involve the following: - Amendment to Section 38-1 entitled "Definitions" via the addition thereto of the following defined terms: "cost of fundraising", "religious institutions" , and "educational institutions" ; - Amendment to Section 38-2 entitled "Solicitations Board" by deleting therefrom provisions governing Miami Beach Police investigative assistance; - Amendment to Section 38-4 entitled "Issuance of Permits; Hearing Procedures" by establishing a 30-day time period within which appeals of permit denials to the City Manager shall occur; - Amendment to Section 38-6 entitled "Registration Requirements" by requiring applicants to submit financial reports; - Amendment to Section 38-7 entitled "Registration Forms and Public Disclosure" by providing that all registration statements filed with the City of Miami Beach shall be public records; - Amendment to Section 38-10. 1 entitled "Provisions Cumulative" said Section mandating compliance with this Chapter as well as all other valid and applicable laws pertaining to the solicitation of funds or related activity; - Amendment to Section 38-12 entitled "Exemptions" by adding thereto organizatons or entities with tax-emempt status under Section 501 (c) of the Internal Revenue Code, bonafide religious institutions and educational institutions, and by providing that non-exempt persons or organizations spending in excess of 50% of income on cost of fundraising may solicit upon the provision of detailed information regarding how monies are spent. The attached amendments to Chapter 38 have, been reviewed by 6 the Legal Department and are thus ready for City Commission consideration. AGENDA ` g ITEM _ LF/JKO:jcl DATE 5- QV w a) O U a1 +j \O •-1 N U O • CA P4 J • CL) • —1 ') U) r LH H - O O x z r O H CO J-J O $-a •I-1 a) u J-+ •H cd O U ND TJ 0 a) H rI 'ci +J CU +.J g a) i