HomeMy WebLinkAbout2.a. Appeal of Solicitor License4ROSEMOUNTEXECUTIVE SUMMARY
CITY COUNCIL
City Council Special Meeting: November 9, 2010
AGENDA ITEM: Appeal of Solicitor License
MA SE TION: HfAl
V1 .
PREPARED BY: Gary Kalstabakken, Chief of Police
Amy Domeier, City Clerk
AGENDA NO. 2A.
ATTACHMENTS: City Code 3 -5 (portions), City Attorney
email message regarding Criminal
APPROVED BY:
Offenders Rehabilitation Act
RECOMMENDED ACTION: Motion to direct staff to prepare findings of fact to support the
denial of the solicitor license to Mr. Daniel Smith and to present the findings at the next City
Council Meeting for consideration.
OR
Motion to reverse the denial of the solicitor license to Mr. Daniel Smith and direct staff to
issue the license to Mr. Smith.
ISSUE
On October 8, 2010, an Application for Business Solicitation License was submitted on behalf of
Frontline Marketing by Mr. Todd Ernst. Frontline Marketing was contracted by Charter Communications
to solicit on behalf of Charter for cable services. One of the persons listed to be licensed under Frontline
Marketing is Daniel Charles Smith. Mr. Smith was denied a license based upon his criminal history. Smith
has appealed the denial.
BACKGROUND
Rosemount City Code 3 -5 regulates the licensing of peddlers, solicitors and transient merchants. Frontline
Marketing meets the definition of solicitor because the employees of Frontline Marketing go house -to-
house or from place -to -place to solicit orders for Charter Communications cable services.
The City Code in 3 -5 -6 (B) lists reasons that a license shall be denied and in section three (3) it states:
"The conviction of the applicant within the past five (5) years from the date-,of application for any
violation of any federal or state statute or regulation, or any local ordinance,�which adversely reflects on
the person's ability to conduct the business for which the license is being sought in an honest and legal
manner. Violations shall include, but not be limited to, burglary, theft, larceny, swindling, fraud, unlawful
business practices, and any form of actual or threatened physical harm against another person." A
background check of Smith's criminal convictions led to his denial based upon this section.
Mr. Smith has two (2) misdemeanor convictions in the prior five years that were taken into consideration
and led to the denial of his application for a license. The first is a conviction for the Violation of a
Harassment Restraining Order. This conviction occurred on July 10, 2006. A harassment order is issued
by the court after a hearing in front of a judge. In general, an order is only issued if there is a finding that
some level of harassment has occurred and the respondent is then restrained from committing further acts
of harassment against the petitioner. Mr. Smith's conviction indicates that there was harassment that
occurred prior to the order being issued and then that Smith continued the harassment after the restraining
order was issued. The second conviction is for terroristic threats and harassment — stalking that occurred
on September 9, 2007 and a subsequent court conviction on March 10, 2008.
After reviewing the conviction data of Mr. Smith, it was determined that a denial of his license was
required under City Code 3 -5 -6 (B) (3). The convictions clearly meet the "any form of actual or threatened
physical harm against another person" language in the Code.
The solicitor license has been issued to Frontline Marketing and other persons are soliciting under their
license. However, Mr. Smith was denied a license due to his convictions in 2006 and 2008.
Mr. Smith, as a" person aggrieved by the action..." did file an appeal of the denial. In his letter of appeal,
Smith raises three issues, which are discussed below.
Solicitor License Issued in 2009 — This is accurate; however, the license should not have been issued last year
either based upon Smith's criminal convictions. In reviewing the application materials from 2009, it
appears the only explanation is that police staff missed the applicable conviction data. While Smith was
granted a license in 2009, it should be noted that a different Frontline Marketing employee was denied a
license in 2009 for a related criminal conviction.
Smith's Work History — Mr. Smith argues that his work history of thousands of contacts with customers
without a complaint is evidence of his ability to work as a solicitor. Rosemount's City Code is specific in
time frame that convictions shall be considered and the denial is based on Smith's convictions.
No License is Needed Because of an Exemption in City Code — The City Code provides an exception for the
establishment of a regular route for the delivery of commodities or providing of such services to regular
customers. This exemption has consistently been interpreted to mean a regular route, such as Schwan's as
Smith references in his letter of appeal. Another example is the delivery of milk and milk products
through a home delivery service. Charter Communications provides cable services that are not a part of a
route. Furthermore, Frontline Marketing does not provide services that are being offered to the
customers. Frontline is contracted by Charter to sell Charter's services. Staff does not believe this
exemption fits Frontline Marketing's and Smith's situation.
City Attorney LeFevere has prepared a document explaining the Criminal Offender's Rehabilitation Act as
it applies to this matter. The document is attached for Council review.
RECOMMENDATION
Staff recommends that the Council conduct a hearing on Mr. Smith's appeal of the solicitor license. At the
conclusion of the hearing, Council may either direct staff to issue a license to Mr. Smith or direct staff to
prepare findings in support of the denial to be considered at the next Council Meeting.
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Sterling Codifiers, Inc.
3 -5 -6: INVESTIGATION AND LICENSE ISSUANCE:
Page I of 1
A. There will be a fourteen (14) day waiting period between the application and issuance of the license
during which period of time the chief of police shall make such investigation of the applicant's business
moral character as the chief of police shall deem necessary for the protection of the public good. The
license may be issued by the city clerk when the foregoing investigation is completed.
B. The issuance of the license shall be denied for the following causes:
1. Failure of the applicant to obtain and show proof of having obtained any required county or state
license or registration;
2. Failure of the applicant to truthfully provide any of the information requested by the city as a part of
the application, or the failure to sign the application, or the failure to pay the required fee at the time
of application, or the failure to provide the required liability insurance information;
3. The conviction of the applicant within the past five (5) years from the date of application for any
violation of any federal or state statute or regulation, or any local ordinance, which adversely reflects
on the person's ability to conduct the business for which the license is being sought in an honest and
legal manner. Violations shall include, but not be limited to, burglary, theft, larceny, swindling, fraud,
unlawful business practices, and any form of actual or threatened physical harm against another
person;
4. The revocation within the past five (5) years of any license issued to the applicant for the purpose of
conducting business as a peddler, solicitor or transient merchant;
5. The applicant is found to have a bad business reputation. Evidence of a bad business reputation
shall include, but not be limited to, the existence of more than three (3) complaints against the
applicant with the Better Business Bureau, the attorney general's office, or other similar business or
consumer rights office or agency, within the preceding twelve (12) months, or six (6) complaints filed
against the applicant within the preceding five (5) years. (Ord. XVI.55, 6 -7 -2005)
http:// www. sterlingcodifiers. com lcodebooklgetBookData.php ?id= §ion id= 168538 &keywords= 11/10/2010
Sterling Codifiers, Inc. Page 1 of 2
3 -5-4: EXCLUSIONS:
Except as provided in subsection G of this section, no person shall be required to obtain a license in the
following instances:
A. A solicitor doing business by appointment.
B. A solicitor taking orders for the future door to door delivery of newspapers.
C. Salespeople selling goods to retail or wholesale stores or to professional or industrial establishments.
D. The conduct of "garage sales" or "rummage sales ".
E. No license shall be required for vendors as a preliminary step to the establishment of a regular route
service for the sale and delivery of such commodities or the providing of such services to regular
customers.
F. School aged children selling items for fundraisers.
G. Any canvassing, soliciting or fundraising for the purpose of charitable organizations if such an
organization is registered with the state department of commerce pursuant to the provisions of
Minnesota statutes, sections 309.515, 309.52, and 309.53 as a charitable organization or exempted
pursuant to the provisions of Minnesota statutes 309.515, provided documentation is filed with the city
clerk giving the following information:
1. Name and address of the organization;
2. Name, address and physical description of the person seeking to register on behalf of the
organization;
3. Names and addresses of all of the officers and no more than four (4) directors of the organization;
4. Period during which canvassing, solicitation or fundraising is to be carried on;
5. Purpose of the cause for which registration is sought; and
6. Evidence of registration with the department of commerce or exemption from registration pursuant
to Minnesota statutes 309.515.
htip:// www. sterlingcodifiers. com lcodebooklgetBookData.php ?id= §ion id= 168536 &keywords= 11/10/2010
Message
Kalstabakken, Gary
From: LeFevere, Charlie L. [clefevere @Kennedy - Graven.com]
Sent: Tuesday, November 09, 2010 4:01 PM
To: Kalstabakken, Gary
Cc: Domeier, Amy
Subject: Solicitor's appeal
Gary,
As part of its consideration of this matter, the Council needs to take into account the Criminal Offender's
Rehabilitation Act (Minnesota Statutes, Chapter 364) (the "Act').
Under the Act no person shall be disqualified from pursuing any occupation for which a license is required
solely, or in part, because of a prior conviction of crimes unless the crimes directly relate to the position of
employment sought.
The statute specifies what factors must be considered by the City in determining whether a conviction
directly relates to the position to be licensed. These include:
the nature and seriousness of the crime or crimes for which the individual was convicted;
2. the relationship of the crime or crimes to the purposes of regulating the occupation for which the
license is sought;
3. the relationship of the crime or crimes to the ability, capacity, and fitness required to perform the
duties and discharge the responsibilities of the occupation.
Even if the convictions directly relate to the occupation for which a license is sought, the applicant cannot
be disqualified if the person can show competent evidence of sufficient rehabilitation and present fitness
to perform the duties for which the license is sought. Again, the statute specifies the kinds of evidence
that may be used to provide evidence of rehabilitation and considered by the Council. The documentary
evidence specified by the statute includes the following:
a copy of the local, state, or federal release order; and
2. evidence showing that at least one year has elapsed, since release from any local, state, or
federal correctional institution without subsequent conviction of a crime; and evidence showing
compliance with all terms and conditions of probation or parole; or
3. a copy of the relevant Department of Corrections discharge order or other documents showing
completion of probation or parole supervision.
The statute also requires that, in addition to documentary evidence, the City must consider any evidence
presented by the applicant regarding:
1.' the nature and seriousness of the crime or crimes for which convicted;
2. all circumstances relative to the crime or crimes, including mitigating circumstances or social
conditions surrounding the commission of the crime or crimes;
3 the age of the person at the time the crime or crimes were committed;
4. the length of time elapsed since the crime or crimes were committed; and
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Message
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5., all other competent evidence of rehabilitation and present fitness presented, including, but not limited to, letters of
reference by persons who have been in contact with the applicant since the applicant's release from any local, state, or
federal correctional institution.
After considering all of the evidence presented by the applicant at the hearing, if the Council determines that the convictions
directly relate to the position for which the license is sought and the applicant has not submitted sufficient evidence of
rehabilitation, the Council may deny the license. However, the statute requires that the City must notify the individual in writing of
the following:
the grounds and reasons for the denial or disqualification;
2. the applicable complaint and grievance procedure as set forth in Minnesota Statutes, Section 364.06;
3. the earliest date the person may reapply for a position of public employment or a license; and
4. that all competent evidence of rehabilitation presented will be considered upon reapplication.
Therefore, if the Council decides after consideration of all of these factors that the license should be approved, it could do so by
simple motion. However, if the Council determines that the license should be denied, it should direct staff to prepare a written
decision for consideration by the Council at its next meeting.
Charlie
Charles L. LeFevere
Kennedy and Graven, Chartered
470 U. S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
Telephone: (612) 337 -9215
Fax: (612) 337 -9310
clefevereAkennedy - graven. corn
11/10/2010