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Ordinance 82-2297ORDINANCE NO. 82-2297 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH REPEALING CHAPTER 38 OF THE CITY CODE; ENACTING A NEW SOLICITATIONS CHAPTER TO CONSIST OF SECTIONS 38-1 THROUGH 38-15 TO GOVERN SOLICITATIONS WITHIN THE CITY OF MIAMI BEACH; PROVIDING FILING AND REGISTRATION REQUIREMENTS; PROVIDING FOR ISSUANCE OF PERMITS; PROVIDING FOR HEARING PROCEDURES; PROVIDING FOR FEES; PROVIDING FOR ENFORCEMENT OF "NO SOLICITORS" SIGNS; PROVIDING PENALTIES; PROVIDING FOR RULE- MAKING AUTHORITY; PROVIDING AN EFFECTIVE DATE: BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH FLORIDA: SECTION 1 LEGISLATIVE PURPOSE: The City Commission of the City of Miami Beach Florida finds, based on the recommendations of the City Attorney, the Police Chief and the City Manager, that the City's existing Charitable Solicitations Ordinance is no longer consistent with recently enacted State laws, is inadequate to protect the public from current solicitations acti- vities within the City, and may be inconsistent with federally - secured rights. The City Commission adopts this ordinance for the purpose of protecting residents and visitors within the City of Miami Beach by requiring full disclosure of material information by solicitors operating within the City. It is the Commission's intent that the requirements hereunder be strictly construed and enforced by the Solicitations Committee, the Office of the City Manager, the Police Department, and the courts to ensure full disclosure of all material facts by all persons soliciting within the City of Miami Beach. SECTION 2 Chapter 38, Miami Beach Code, is hereby repealed and replaced by Sections 38-1 through 38-15 below, to be entitled and known as the "Solicitations Chapter" of the City of Miami Beach Code. Sec. 38-1. Definitions 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, organi- zation 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 re- quests for contributions within, at, or adjacent to any public event or public forum. The term "soli- citation" shall also include the request for contri- butions 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 re- ceives any contribution. "Solicitations" shall not include requests made by telephonic, television, radio, mailings, posters or other similar indirect and non -personal written or electronic communica- -1- OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139 tions. "Solicitations" shall also include the sale or offer, or attempt to sell or offer, any advertis- ing, 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 human- ities, civic or public interest purpose, function, organization, party, activity or movement. d. "Income" means the gross amount of contributions re- ceived from the public by an organization during its fiscal year. e. "Person" means any individual, school, party, church, religious or other association, organiza- tion, trust, foundation, group, association, part- nership, corporation, society or other entity. f. "Professional solicitor" means 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 esta- blishment within the State shall not be deemed to be a professional solicitor. However, any bona fide salaried officer or employee of a charitable organi- zation who engages in the solicitation of contribu- tions in any manner for more than one charitable organization shall be deemed a professional solici- tor. Sec. 38-2. Solicitations Board. A twelve -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 Better Business Bureau of South Florida, the Miami Beach Chamber of Commerce, and the Miami Beach Jaycees (the latter three 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 60 days after the following City Commission election. The Board shall choose its own chairman. The Board shall receive, inves- tigate and maintain on file with the City all materials submitted or collected in connection with solicitations 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 (Sec. 38-2 amended at request of Commiss:i,oner Fromberg) -2- OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139 ,, ,P;er rules, and may summon witnesses, hear testimony, conduct hearings, and do and perform all other acts which may be necessary and proper within the scope of its duties and functions under this Chapter. The Board shall have the right to obtain investigative assistance from the Miami Beach Police Department as reasonably needed by the Committee to perform its duties under this Chapter. Sec. 38.3 Recommendations of Board. Upon receipt and review of the properly certified forms described below or required by Board rules, and upon such investigation as it deems appropriate, 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 mis- represented material facts. Sec. 38-4. Issuance of Permits; Hearing Procedures. In the event the Board denies an application for a per- mit, the applicant may appeal the denial to the City Manager and after hearing, a written statement shall be issued by the City Manager stating his decision and ex- plaining the basis for it. No permit shall be denied ex- cept for violations of, or failures to satisfy, the re- quirements of this Ordinance or the Board's rules adopted under Section 38-13 below, or for misleading or deceptive activities or statements or misrepresentation, conceal- ment or nondisclosure of material facts, or for other good cause. 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, by properly adopted rule, the Solicita- tions Board may reduce or eliminate any of these disclo- sure requirements, provided such a rule is applied equal- ly to all applicants of the same class. 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 seek- ing 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 organiza- -3- ECf,RED VI CTIA r'QNINl2't+' Rev. 2/17/82 OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139 tion or entity has received tax-exempt status from the United States Internal Revenue Service. 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 as- sociated organizations. f. A precise description of the manner(s) in which so- licitations will be made or contributions sought. g. Whether the person has previously solicited in the City of Miami Beach, and if so, when. h. Whether the person has ever been enjoined or prohi- bited from soliciting contributions in any loca- tion. i. A statement of how income, if any, has been used in the two prior years. j. The name and addresses of all professional solici- tors involved with the applicant. k. The names and addresses of all officers and direc- tors or other persons responsible for the activities of the applicant. 1. The names and addresses of all persons having finan- cial responsibility for the applicant, including those having custody of all contributions obtained. m. A specific description of all salaries, overhead and fund-raising costs. n. Whether the applicant is registered as a corporation in the State of Florida. o. Whether the applicant employs an accountant or ac- counting firm, and if so, the names thereof. P. Whether the applicant has a current financial re- port, and if so, a copy of said financial report. q. Such other information as niay be reasonably required by the Solicitations Board pursuant to its rule- making authority under Section 38-12. r. The dates on which the applicant intends to solicit. Sec. 38.7 Registration Forms. 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 per- son responsible for the organization, may be required by the Board to certify under oath, in notarized form, that all information furnished therein is true and correct. The person submitting the form may also be required by the Board to submit a summary of financial activities of the person or organization seeking to solicit or obtain contributions within the City of Miami Beach, disclosing the applicant's use of contributions in the two imme- -4- OFFICE OF THE CITY ATTORNEY • 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139 diately prior years and its projected or estimated use of funds for the current year. Sec. 38.8 Issuance of Solicitations Permits. A numbered solicitations permit may be issued, pursuant to Sections 38-3 and 38-4 above, for specific dates or for a period not exceeding one year, to be determined by the Board. A11 solicitors or persons seeking contribu- tions 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 num- ber 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 per- mit, 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 $25.00 for the permit. Sec. 38.10 Enforcement of "No Solicitor" Signs. Any home owner, business or tenant seeking to exclude so- licitors 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 crimi- nal penalties which may exist. Sec. 38.11 Receipts for Contributions. It shall be unlawful for any person to solicit contribu- tions without providing each donor or contributor a signed receipt for any contribution exceeding $10. 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 organization granted tax-exempt status by the Internal Revenue Service pursuant to 26 U.S.C. §501(c)(3) and (4)(1981); (v) any person or entity properly registered by the Secretary of State pursuant to Chapter 496, Fla. Stat. (1981); (vi) any fund raising by political candi- dates or political organizations registered under or sub- ject to the provisions of Chapters 111 or 106, Fla. Stat. (1981), Chapter 10, Art. I, Miami Beach Code, or equivalent local, State or Federal campaign fund-raising laws. However, no organization 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 solicit on Miami Beach, or be granted a permit to solicit on Miami Beach, which spends in excess of 3-0 % of its income on salaries, operating expenses and/or cost of professional solici- tors; this latter requirement shall not apply to any or- ganization primarily engaged in the advocacy or the dis- semination of information on matters of public concern. The Solicitations Board may require any organization to submit an audited financial statement with such informa- tion as may be appropriate to verify compliance with this requirement. Sec. 38.12 (vi) amended at regLest of Commissioner Haber) -5- Rev. 2/17/82 OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139 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, 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, to govern the conduct of its meet- ings and all hearings under Section 38-4. The Board is specifically authorized to adopt rules by majority vote to govern the conduct of its members, including removal of members who fail to attend three or more scheduled Board meetings without good cause. The Solicitations Board may permit temporary solicitations without regis- tration, or by means of lesser registration requirements, in cases of actual hardship, provided prior written rules are adopted for this purpose and approved by the City At- torney. The Solicitations Board may also adopt written rules designed to reasonably limit the absolute number of solicitors engaged in solicitation activities in the City at any one time. 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 contribu- tor. Sec. 38.15 Penalties. Any person or organization violating any of the provi- sions of this ordinance 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 $500 shall be imposed; (ii) Upon conviction for the second offense, a fine not ex- ceeding $1,000 and a sentence of imprisonment not exceed- ing 3 days shall be imposed; (iii) Upon conviction for the third and subsequent offenses, a fine not exceeding $5,000 and a sentence of imprisonment not exceeding 30 days shall be imposed. SECTION 3: EXPENDITURES. Funds appropriated by the Commission from general operating contin- gency funds to finance the operations of the Solicitations Board, shall be used by the Board for secretarial, telephone, investiga- tive, accounting, duplication, mailing, recording and transcription services, and other similar administrative expenses. All tees or fines paid to the Board under this Chapter shall go to the general revenues of the City of Miami Beach. (Sec. 38.15 amended at request of Commissioner Fromberg and Miami Beach Police Department - 12/14/81) -6- OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE • MIAMI BEACH, FLORIDA 33139 SECTION 4: OTHER ORDINANCES. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 5: SEVERABILITY. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not effect the validity of the remaining portions of this Or- dinance. SECTION 6 EFFECTIVE DATE. This Ordinance shall take effect twenty (20) days after its adop- tion, on March 9 , 1982. PASSED and ADOPTED this 17th day of February , 1982. 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