Chapter 9. Licenses and Permits
Sec. 9-53. Transient merchants.
(1) Registration required. It shall be unlawful for any transient merchant to engage in sales within the City of Marshfield without being registered for that purpose as provided in this section.
(2) Definitions. For purposes of this section, the following definitions shall apply:
Charitable organization shall include any benevolent, philanthropic, patriotic, or eleemosynary person, partnership, association or corporation, or one purporting to be such. Clerk means the city clerk.
Merchandise shall include personal property of any kind, and shall include merchandise, goods, or materials provided incidental to services offered or sold. The sale of merchandise includes donations required by the seller for the retention of goods by a donor or prospective customer.
Permanent merchant means any person who, for at least six months prior to the consideration of the application of this section to such merchant, (i) has continuously operated an established place of business in the local trade area among the communities bordering the place of sale, or (ii) has continuously resided in the local trade area among the communities bordering the place of sale and now does business from his/her residence.
Transient merchant means any individual who engages in the retail sale of merchandise at any place in this state temporarily, and who does not intend to become and does not become a permanent merchant of such place. For purposes of this section, sale of merchandise includes a sale in which the personal services rendered upon or in connection with the merchandise constitutes the greater part of value for the price received, but does not include a farm auction sale conducted by or for a resident farmer of personal property used on the farm, or the sale of produce or other perishable products at retail or wholesale by a resident of this state.
(3) Exemptions. The following shall be exempt from all provisions of this section:
- Any person delivering newspapers, fuel, dairy products or bakery goods to regular customers on established routes;
- Any person selling merchandise at wholesale to dealers in such merchandise;
- Any person selling agricultural products which the person has grown;
- Any permanent merchant or employee thereof who takes orders at the home of the buyer for merchandise regularly offered for sale by such merchant in this city and who delivers such merchandise in their regular course of business;
- Any person who has an established place of business where the merchandise being sold is offered for sale on a regular basis, and in which the buyer has initiated contact with, and specifically requested, a home visit;
- Any person who has had, or one who represents a company which has a current open account with a city customer;
- Any person selling or offering for sale a service unconnected with the sale or offering for sale of merchandise;
- Any person selling creations of art or craft, whether paintings, drawings, photographs, pottery, other goods or similar works of art, provided that such creations may be sold only by the creating artist and only in locations not otherwise prohibited under this Code;
- Any person holding a sale required by statute or by order of any court and any person conducting a bona fide auction sale pursuant to law;
- Any employee, officer or agent of a charitable organization who engages in direct sales for or on behalf of such organization, provided that there is submitted to the clerk proof that such charitable organization is registered under § 440.42 Wis. Stats. Any charitable organization engaging in the sale of merchandise and not registered under § 440.42 Wis. Stats., or which is exempt from that statute's registration requirements, shall be required to register under this section. This exemption shall also extend to an individual defined in the term "transient merchant" in subsection (2) of this section who is under the direct sponsorship and supervision of a charitable organization, but such organization shall be entitled to an exemption of this kind for not more than four events per year and shall pay a fee for such privilege of $25.00 per year;
- Any person who claims to be a permanent merchant, but against whom complaint has been made to the clerk that such person is a transient merchant; provided that there is submitted to the clerk proof that such person has leased for at least one year, or purchased, the premises from which he/she has conducted business in the market area for at least six months prior to the date the complaint was made;
- Any individual licensed by an examining board as defined in § 15.01(7) Wis. Stats.;
- This section does not apply to transient merchants while doing business at special events which are under the supervision and control of a local organization or business, or during special events specifically authorized by the council, provided that:
- Transient merchants exempt under this section must be sponsored by a stated local organization or business.
- The sponsoring organization or business shall be responsible for all activities of the transient merchant.
(4) Registration. Procedures for registration shall be as follows:
- Applicants for registration must complete and return to the clerk, at least 15 days prior to issuance of the registration, a form furnished by the clerk which shall require the following information:
- The complete name, permanent address, telephone number and temporary address of each person or employee to be engaged in sales activities.
- A physical description of each person or employee to be engaged in sale activities, including age, height, weight and color of hair and eyes.
- Name, address and telephone number of the person that the transient merchant represents or is employed by, or whose merchandise is being sold.
- Temporary address and telephone number from which business will be conducted, if any.
- Nature of business to be conducted and a brief description of the merchandise, and any services offered.
- Proposed methods of delivery of merchandise, if applicable.
- Make, model and license number of any vehicle to be used by the applicant in the conduct of his/her business.
- Most recent cities, villages or towns, not to exceed three, where the applicant conducted his/her business.
- Place where the applicant can be contacted for at least seven days after leaving this City.
- Statement as to whether the applicant or any employee to be engaged in sales has been convicted of any crime or ordinance violation related to the applicant's transient merchant business within the last five years, and the nature of the offense and the place of conviction.
- Applicants shall present to the clerk for examination:
- A driver's license, or other proof of identity as may be reasonably required, for each employee to be engaged in sales activities.
- A state certificate of examination and approval from the sealer of weights and measures where the applicant's business requires use of weighing and measuring devices approved by state authorities.
- A Wood County permit or license where the applicant's business involves the handling of food or clothing and is required to be certified under state law; such certificate to state that the applicant is apparently free from any contagious or infectious disease, dated not more than 90 days prior to the date the application for license is made.
(5) License fees. License fees shall be as follows:
- Application for a temporary transient merchant license may be made for a period of two days, four days, or six months, or for an annual license. Time limits for temporary licenses are for consecutive days.
- The fee for issue of a transient merchant license shall be as follows:
- Two-day temporary license . . . . . . . . . . . . . . . . . . . . . . $ 50.00
- Four-day temporary license. . . . . . . . . . . . . . . . . . . . . . . 100.00
- Six-month temporary license . . . . . . . . . . . . . . . . . . . . . . 250.00
- Annual license. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500.00
- In addition to license fees, the applicant shall pay an investigation fee of $10.00 per each employee to be engaged in sale activities, which fee shall be nonrefundable if the application is denied.
(6) Bond. A bond shall be required as follows:
- A transient merchant shall post a cash bond in lawful money of the United States in the amount of $500.00 with the clerk at the same time the registration form is filed with the clerk. A transient merchant shall name all persons upon whose behalf the bond shall be posted. Buyers or donors who wish to cancel their transaction or claim a refund as permitted in § 423.202 Wis. Stats. may do so by presenting within the time limits to the clerk the goods purchased or the credit papers, and the clerk shall refund to the donor/buyer the amount paid to the seller. The clerk shall deduct from the bond any amount so refunded plus $5.00 for each refund made as a handling charge. The clerk shall store the goods and papers upon which the refund was grounded, and notify the seller, by first class mail, at the address provided in the registration form. Twenty days after such notice is mailed the clerk may sell or destroy such goods and papers, crediting any money received therefor to the seller's bond account. Once the bond has been depleted below $400.00 the direct seller shall, upon written notice thereof by first class mail, within ten days after mailing of such notice, replenish the bond or forfeit the registration. No direct seller shall conduct activities within the city once such notice has been mailed until such time as the fund is replenished unless the registration is revoked, in which case no further sales shall take place.
- As an alternative to the cash bond required in subsection (6)(a) of this section, the transient merchant may present a surety bond in the amount of $2,000.00 from a reputable bonding firm. The bond shall name all persons for whom the bond is posted. Refunds to customers for any returns of merchandise to the city clerk shall be paid by the bonding firm or transient merchant to such customers. Claims for refunds shall be within the time limits of § 423.203 Wis. Stats. The clerk shall store the goods and papers upon which the refund was grounded and notify, by first class mail, the seller and bonding firm at the address provided in the registration form and on the bond. No transient merchant shall conduct activities in the city if evidence of a refund is not received by the clerk within 20 days of the mailing of such notice of returned merchandise. The clerk shall retain such returned goods until sufficient evidence is received that money has been refunded to those buyers who returned merchandise. Upon receipt of sufficient evidence, the clerk shall advise the transient merchant by first class mail to obtain the stored merchandise. Twenty days after such notice is mailed the clerk may sell or destroy such goods and papers, with any money received from the sale to be paid to the transient merchant or the bonding company based on payment of the refund to the customer.
- The applicant shall sign a statement appointing the clerk his/her agent to accept service of process in any civil action brought against the applicant arising out of any sale or service performed by the applicant in connection with the direct sales activities of the applicant, in the event the applicant cannot, after reasonable effort, be served personally.
- The cash bond may be refunded to a transient merchant, together with accrued interest, upon written request, provided such refund will not be made earlier than 90 days after such merchant has ceased doing business in the city.
(7) Record check. A record check shall be made in accordance with the following:
- Upon payment of the fee and the signing of the statement, the clerk shall refer it immediately to the chief of police who may make a complete records check of the statements made in such registration. The registration shall be valid for the licensing dates applied for, not to exceed one year from date of issue subject to subsequent refusal as provided in subsection (7)(b) of this section. If the merchant shall apply for a second temporary license in the same calendar year, and the persons who shall be engaged in sales under such license are identical to those persons identified on the prior application for a temporary license, the city may, at the city clerk's discretion, waive the investigation fee required under subsection (5)(c) of this section.
- The clerk shall refuse to register the applicant if it is determined, pursuant to the investigation above, that: the application contains any material omission or materially inaccurate statements; complaints of a material nature have been received against the applicant by authorities in the most recent cities, villages or towns, in which the applicant conducted similar business; the applicant was convicted of a crime, statutory violation or ordinance violation within the last five years, the nature of which is directly related to the applicant's fitness to engage in direct selling; or the applicant failed to comply with any applicable provision of subsection (4)(b) of this section.
- If the chief of police determines from the investigation of the application that the interest of the city or of the inhabitants of the city require protection against possible misconduct of the licensee, the chief of police may recommend to the license committee that a cash bond of $500.00 be required running to the city conditioned upon the licensee's full compliance with the ordinances of the city and guaranteeing to any citizen of the city doing business with him that the property purchased will be delivered according to the representation of the applicant provided that such action to recover on any such bond shall be commenced within one year after the expiration of the license of the principal.
(8) Appeal. Any person refused or denied registration may appeal the denial through the appeal procedure provided by ordinance or resolution of the council, or if none has been adopted, under the provisions of §§ 68.07—68.16 Wis. Stats.
(9) Regulation of transient merchants. Transient merchants shall comply with the following:
- Prohibited practices. Prohibited practices are the following:
- A transient merchant shall be prohibited from: calling at any dwelling or other place between the hours of 9:00 p.m. and 9:00 a.m. except by appointment; calling at any dwelling or other place where a sign is displayed bearing the words "no peddlers," "no solicitors," or words of similar meaning; calling at the rear door of any dwelling place; or remaining on any premises after being asked to leave by the owner, occupant or other person having authority over such premises.
- A transient merchant shall not misrepresent or make false, deceptive or misleading statements concerning the quality, quantity, or characteristics of any merchandise offered for sale; the purpose of his/her visit; his/her identity or the identity of the organization he/she represents. A charitable organization transient merchant shall specifically disclose what portion of the sale price of the merchandise being offered will actually be used for the charitable purpose for which the organization is soliciting. Such portion shall be expressed as a percentage of the sale price of the merchandise.
- No transient merchant shall conduct sales on any sidewalks or streets within the city. Where sales are made from vehicles all traffic and parking regulations shall be observed.
- No transient merchant shall make any loud noises or use any sound amplifying device to attract customers if the noise produced is capable of being plainly heard outside a 100-foot radius of the source.
- No transient merchant shall allow rubbish or litter to accumulate in or around the area in which he/she is conducting business.
- Disclosure requirements. Disclosure requirements are as follows:
- After the initial greeting and before any other statement is made to a prospective customer, a transient merchant shall expressly disclose his/her name, the name of the company or organization he/she is affiliated with, if any, and the identity of merchandise or services he/she offers to sell and present the permit issued by the city clerk's office.
- If any sale of merchandise is made by a transient merchant, or any offer for the later delivery of merchandise is taken by the seller, the buyer shall have the right to cancel the transaction if it involves the extension of credit or is a cash transaction of more than $25.00, in accordance with the procedures set forth in § 423.203 Wis. Stats.; and the seller shall give the buyer two copies of a typed or printed notice of that right. Such notice shall conform to the requirements of § 423.203(1)(a), (b) and (c), and (2) and (3) Wis. Stats.
- If the transient merchant takes a sales order for the later delivery of merchandise, he/she shall, at the time the order is taken, provide the buyer with a written statement containing the terms of the agreement; the amount paid in advance whether full, partial, or no advance payment is made; the name, address and telephone number of the seller; the delivery or performance date; and whether a guarantee or warranty is provided and, if so, the terms thereof.
- If the business is being conducted from a vehicle or stationary structure, the certificate of registration or facsimile thereof shall be displayed prominently thereon. The permit issued by the clerk's office shall be displayed also.
(10) Records. The chief of police shall report to the clerk all convictions for violation of this section, and the clerk shall note any such violation on the record of the registrant convicted.
(11) Revocation of registration. Procedures for the revocation of the registration shall be as follows:
- Registration may be revoked by the council after notice and hearing, if the registrant made any material omission or materially inaccurate statements in the application for registration; made any fraudulent, false, deceptive or misleading statement or representation in the course of engaging in transient sales; violated any provision of this section; or was convicted of any crime or ordinance or statutory violation which is directly related to the registrant's fitness to engage in selling.
- Written notice of the hearing shall be served personally on the registrant at least 72 hours prior to the time set for the hearing; such notice shall contain the time and place of the hearing and a statement of the acts upon which the hearing will be based.
(Code 1982, § 12.05; Ord. No. 959, § 4—6, 4-9-2002; Ord. No. 974, § 1, 2, 4-8-2003)
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