8159-10ORDINANCE NO. 8159-10
AN ORDINANCE OF THE CITY OF CLEARWATER,
FLORIDA, RELATING TO SOLICITING ON PUBLICLY-
OWNED STREETS, GARAGES, AND PARKING LOTS;
AMENDING SECTION 28.041(3), CODE OF ORDINANCES,
TO EXEMPT SOLICITORS FROM OBTAINING LIABILITY
INSURANCE UNDER SPECIFIED CONDITIONS AND TO
CLARIFY THE CONDITIONS UNDER WHICH
SOLICITATIONS SHALL BE PERMITTED; AMENDING
SECTION 28.041(4), CODE OF ORDINANCES, TO
PROVIDE AN AGGRIEVED APPLICANT A RIGHT TO
APPEAL THE DENIAL OF A PERMIT; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the Department of Highway Safety and Motor Vehicles of the
State of Florida, as of February 1, 2010, has provided 884,803 currently valid
decals for motor vehicles in Pinellas County; and
WHEREAS, Pinellas County is the most densely populated county in the
State of Florida; and
WHEREAS, the Tampa Bay area has the second highest incident of
pedestrian fatalities in the State of Florida, and City of Clearwater has the third
highest among local governments with the Tampa Bay area; and
WHEREAS, the orderly flow of motorized traffic is a major concern in
congested urban areas, particularly because an obstruction or delay in traffic at one
point along a traffic artery results in delays and backups far down the roadway; and
WHEREAS, a public safety hazard has been identified with persons
approaching motor vehicles to solicit charitable contributions, business, or
employment from the occupants of motor vehicles being operated on public streets
in Clearwater; and
WHEREAS, unlike the oral advocacy of ideas, or even the distribution of
free literature, successful solicitation from drivers distracts them from their
primary duty to watch the traffic and potential hazards in the road, observe all
traffic control signals or warnings, and prepare to move through the intersection
because the individual is required to respond to the solicitor by, for example,
searching for currency, passing it along to the solicitor, securing any change
returned, replacing a wallet or closing a purse, and then returning proper
attention to the full responsibilities of operating a motor vehicle; and
WHEREAS, there are numerous and diverse methods of soliciting
available in the city that provide ample alternatives for solicitation, including
Ordinance No. 8159-10
soliciting pedestrians on the sidewalk, canvassing door-to-door, telephoning
individuals, or direct mailing; and
WHEREAS, the Ordinance is narrowly aimed at the disruptive nature of
soliciting the occupants of motor vehicles being operated on public streets and is
not intended to restrict the communication of ideas, including the distribution of
free literature to occupants of motor vehicles or even the solicitation of the
occupants of motor vehicles that are lawfully parked; and
WHEREAS, failure to restrict solicitations of the occupants of motor
vehicles being operated on public streets will endanger the health, safety, and
general welfare of the public by permitting unsafe pedestrian movement within
travel lanes, sudden stoppage or slowdown of traffic, rapid lane changing, turns,
and other dangerous traffic movement, increased vehicular accidents, and
motorist injuries and fatalities; and
WHEREAS, although the City Council has a substantial governmental
interest in enhancing traffic safety and ensuring the free flow of traffic, the
Council also seeks not to sweep too broadly in its prohibitions so as not to
burden more speech than is necessary to promote its governmental interest; and
WHEREAS, the City Council has determined that a balance can be
reached between its governmental interest in enhancing traffic safety and
ensuring the free flow of traffic and a solicitor's First Amendment right to solicit by
authorizing street solicitations when the solicitors comply with the conditions set
forth below; and
WHEREAS, the City Council recognizes that some solicitors may not be
able to comply with the insurance requirements contained in Section 28.041(3);
and
WHEREAS, the City Council wants to ensure that any party denied a
solicitor's permit is afforded prompt judicial review; now therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA:
Section 1. Section 28.041, Clearwater Code of Ordinances, is amended
to read as follows:
Section 28.041 Soliciting, collecting, etc., upon streets.
(3) A An person, an organization, or person acting on behalf of the organization
shall be exempt from subsection (1) under the following conditions:
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(a) The person, organization1 or person acting on behalf of the organization must
provide the following to the chief of police who shall approve the request within 5
business days from the date that all of the following information is provided:
1. No fewer than 14 calendar days prior to the proposed solicitation, the name
and address of the person or organization that will perform the solicitation and
the name and address of the person or organization that will receive funds from
the solicitation.
2. A plan foF the safety of all peFsens paFkipatiRg on the selmoitation, as well as
place.
2.3: Specific details of the location or locations of the proposed solicitation and
the hours during which the solicitation activities will occur.
3.4. Proof of commercial general liability insurance against claims for bodily injury
and property damage occurring on streets, roads, or rights-of-way or arising from
the solicitor's activities or use of the streets, roads, or rights-of-way by the
solicitor or the solicitor's agents, contractors, or employees. The insurance shall
have a limit of not less than $1 million per occurrence for the general aggregate.
The certificate of insurance shall name the City of Clearwater as an additional
insured and shall be filed with the Office of the Chief of Police no fewer hater than
14 days heuFs prior to before the date of the solicitation.
4. The requirements of insurance contained in subparagraph (a)3. shall be
waived where the applicant presents evidence of financial disability or inability to
obtain an insurance company that will provide the insurance. Financial disability
shall mean lack of present funds with which to pay the premium associated with
the policy of insurance described in this section.
(b) Organizations or persons meeting the requirements of subparagraphs (a)1.4.
may solicit for a period not to exceed 10 cumulative days within 1 calendar year.
(c) All solicitations shall occur during daylight hours only.
(d) Solicitation activities shall not interfere with the safe and efficient movement
of traffic and shall not cause danger to the participants or the public.
(e) No person engaging in solicitation activities shall persist after solicitation has
been denied, act in a demanding or harassing manner, or use any sound or
voice-amplifying apparatus or device.
(f) All persons participating in the solicitation shall be at least 18 years of age
and shall possess PiGtUFe identifiraatk?n.
(g) Signage providing notice of the solicitation shall be posted at least 500 feet
before the site of the solicitation.
Ordinance No. 8159-10
(4) Any applicant who has been denied an exemption by the chief of police shall
have the right of appeal to the city manager. The applicant shall file with the city
clerk a written request for a hearing, which should include the grounds for such
appeal and the complete name, address, and telephone number of the applicant.
Upon the filing of a written request for a hearing, the city clerk shall notify the city
manager or city manager's designee, who shall conduct a hearing within 20
calendar days from the date of the filing of the request. At least 10 calendar days
prior to the hearing, the city clerk shall send the applicant notice of the date and
place of the hearing by regular U.S. Mail to any address included on the written
request for a hearing and shall also attempt to contact the applicant at any
telephone number included on the written request for a hearing to inform the
applicant of the date and place of the hearing. If the applicant did not include an
address or a telephone number on the written request for a hearing or if the
applicant wants to know the status of the appeal, the applicant can obtain
information about the date and place of the hearing by contacting the city clerk at
(727) 562-4091 or in person at 112 South Osceola Avenue, 2nd floor,
Clearwater, Florida. At the hearing, the applicant shall have an opportunity to
present evidence, to cross-examine witnesses, and to be represented by
counsel. The City shall have the burden of proof by clear and convincing
evidence and the decision of the city manager or city manager's designee shall
be based solely on the evidence presented at the hearing. The city manager or
designee shall file a written decision with the city clerk's office within 5 calendar
days from the date of the hearing. The written decision shall contain the findings
of fact upon which the decision was based and the legal basis for the decision.
The city clerk shall send the applicant a copy of the decision by regular U.S. Mail
to any address included on the written request for a hearing and shall also
attempt to contact the applicant at any telephone number included on the written
request for a hearing to inform the applicant that the decision has been filed. If
the applicant did not include an address or telephone number on the written
request for a hearing or if the applicant wants to know the status of the appeal,
the applicant can obtain information about whether a decision was filed, as well
as a copy of the decision, by contacting the city clerk at (727) 562-4091 or in
person at 112 South Osceola Avenue, 2nd floor, Clearwater, Florida. The
decision by the city manager or city manager's designee shall be final and
conclusive, subject to judicial review by common-law certiorari in the Circuit
Court for Pinellas County.
(4) (5) If any provision of this section is declared invalid for any reason, such
invalidity shall not affect any of the remaining provisions of this section.
Ordinance No. 8159-10
Section 2. This ordinance shall take effect immediately upon adoption.
PASSED ON FIRST READING
PASSED ON SECOND AND FINAL
READING AND ADOPTED
Approved as to form:
V94A. AWA-
Robert . Surette
Assistan City Attorney
May 20, 2010
June 17, 2010
Frank V. Hibbard
Mayor
Attest:
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