O-2024-42 Amending Article 4.03 of Chapter 4 by updating terms and conditions related to door-to-door commercial solicitation in the TownTOWN OF PROSPER, TEXAS
ORDINANCE NO. 2024-42
AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS, REPEALING
EXISTING ARTICLE 4.03, "SOLICITORS AND ITINERANT MERCHANTS;
HANDBILL DISTRIBUTION," OF CHAPTER 4, "BUSINESS REGULATIONS,"
OF THE CODE OF ORDINANCES OF THE TOWN OF PROSPER, TEXAS, AND
REPLACING IT WITH A NEW ARTICLE 4.03, "SOLICITORS AND ITINERANT
MERCHANTS; HANDBILL DISTRIBUTION"; MAKING FINDINGS; PROVIDING
FOR A PENALTY; PROVIDING FOR REPEALING, SAVING AND
SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE; AND
PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF.
WHEREAS, the Town of Prosper, Texas ("Town") has deemed it necessary and in the
best interest of the Town and its residents to repeal existing Article 4.03, "Solicitors and Itinerant
Merchants; Handbill Distribution," of the Town's Code of Ordinances and replace it with an
updated ordinance regarding solicitation, itinerant merchants and handbill distribution, in full
compliance with state and federal case law relative thereto; and
WHEREAS, it is the desire and intent of the Town Council to fully comply with existing
jurisprudence on these issues while protecting the health and safety of Town residents who
interact with solicitors and itinerant merchants; and
WHEREAS, the Town Council has further determined that it will be advantageous and
beneficial to Prosper and its inhabitants to amend Article 4.03 as described below.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS:
SECTION 1
The findings set forth above are incorporated into the body of this Ordinance as if fully set
forth herein.
SECTION 2
From and after the effective date of this Ordinance, existing Article 4.03 "Solicitors and
Itinerant Merchants, Handbill Distribution," of Chapter 4, "Business Regulations," of the Code of
Ordinances of the Town of Prosper, Texas, is hereby repealed in its entirety and replaced with a
new Article 4.03 "Solicitors and Itinerant Merchants, Handbill Distribution," of Chapter 4, "Business
Regulations," of the Code of Ordinances of the Town of Prosper, Texas, to read as follows:
"ARTICLE 4.03. SOLICITORS AND ITINERANT MERCHANTS, HANDBILL DISTRIBUTION
DIVISION 1. GENERALLY
Sec.4.03.001 Purpose.
This article and shall be deemed an exercise of the police powers of the state and of the
town, in full compliance with the First Amendment to the United States Constitution and applicable
jurisprudence, for the public safety, comfort, convenience, and protection of the town and the
citizens thereof, and all of the provisions of this article shall be constructed for the accomplishment
of that purpose.
Sec.4.03.002 Definitions.
(a) The following words and phrases, when used in this article, shall have the
meanings ascribed to them by this subsection:
Agent means a person who undertakes to transact some business or manage some affair
for another person by the authority and on the account of the latter.
Badge means photographic identification permit issued by the police department of the
town.
Business day means any calendar day except Saturday, Sunday or any state or national
holiday.
Canvasser means a person who engages in canvassing activities.
Canvassing or canvassing activity means the act of:
(1) Traveling either by foot or vehicle, going door-to-door, house -to -house, building -
to -building; or
(2) Occupying space in or traveling on or through any public place in the city;
Charitable purpose means philanthropic or other nonprofit objectives, including the benefit
of poor, needy, sick, refugee or handicapped persons; the benefit of any patriotic or veterans'
association or organization; the benefit of any fraternal, social or civil organization; or the benefit
of any educational institution. "Charitable purpose" shall not be construed to include:
(1) The direct benefit of the individual making the solicitation;
(2) The benefit of any political group or political organization that is subject to financial
disclosure under state or federal law; or The benefit of any church or religious society or order;
(3) The benefit of any church or religious society or order.
Consumer means an individual who seeks or acquires real or personal property, services,
money, or credit for personal, family or household purposes.
Consumer transaction means a sales transaction in which one or more of the parties is a
consumer.
Handbill means any printed or written matter, any sample or device, dodger, circular,
leaflet, pamphlet, paper, booklet, or any other printed or otherwise reproduced original or copies
of any matter or literature that is commercial in nature or has a commercial intent.
Handbill distribution means traveling either by foot or vehicle, going door-to-door, house -
to -house or building -to -building without personally contacting persons to distribute or leave on or
at each premises handbills for any purpose.
Ordinance No. 2024-42, Page 2
Handbill distributor means any person engaging or engaged in the business for hire or
gain of distributing handbills, other than newspapers distributed to subscribers thereof, and any
person receiving compensation directly or indirectly for the distribution of such handbills.
Home solicitation transaction means a consumer transaction for the purchase of goods,
services, or realty, payable in installments, or in cash, in which the merchant engages in a
personal solicitation of the sale to the consumer at a residence, and the consumer's agreement
or offer to purchase is given at the residence to the merchant. A home solicitation transaction
shall not include a sale made pursuant to a preexisting revolving charge account or retail charge
agreement, or a sale made pursuant to prior negotiations between the parties at a business
establishment at a fixed location where goods or services are offered or exhibited for sale, or a
sale of realty in which transaction the purchaser is represented by a licensed attorney or in
which the transaction is being negotiated by a licensed real estate broker.
town.
Local business means a business located and operated within the corporate limits of the
Merchant means a party to a consumer transaction other than a consumer.
Police department means the police department of the Town.
Political purpose means any form of communication related to a political issue, a particular
candidate to a position or nonpartisan office, a political committee, as defined by state law, or to
a political party.
Religious organization means an organization that is dedicated to the support of a church,
religious society, or any other religious sect, group, or order.
Religious purpose means the use of money or property for the support of a church,
religious society or other religious sect, group, or order.
Solicitation means conduct whereby a person or its agent, member, or representative:
(1) Either orally or in writing, asks for a ride, employment, property, financial aid,
money, or any article representing monetary value, for any purpose;
(2) Whether orally or in writing, sells or offers to sell goods, services, publications, or
subscriptions;
(3) Distributes without remuneration goods, services, publications, or subscriptions; or
(4) Solicits signatures on a petition or opinions for a survey.
a. The term "solicitation" shall include persons engaged in the delivery of
handbills or circulars door to door for the solicitation of money, products, services or other items
of pecuniary value. An offer of membership in any organization is expressly excluded.
b. All terminology used in this article and not specifically defined above shall
retain its meaning in conformance with applicable publications of the American National
Standards Institute (ANSI) or its successor body and/or the latest volume of Webster's Collegiate
Dictionary.
Ordinance No. 2024-42, Page 3
Sec 4.03.003 Unlawful solicitation and handbill distribution.
(a) No person, directly or through an agent, shall canvass or solicit in person from
house to house in the town, to sell or attempt to sell goods, merchandise, wares, services or
anything of value or to take or attempt to take orders for the future delivery of goods, merchandise,
wares, or any personal property of any nature whatsoever, or take or attempt to take orders for
services to be furnished or performed in the future, without first having a written permit therefor,
unless the solicitation is for charitable purposes.
(b) Subject to Division 2 of this article, it shall be unlawful for any person, directly or
through an agent or employee, to distribute or cause to be distributed, deposited, placed, thrown,
cast, scattered, handed out or circulated any handbill in or upon any premises within the corporate
limits of the town without first having obtained a permit for such distribution.
(c) It shall be unlawful to solicit funds or distribute handbills after sundown and before
9:00 a.m.
(d) Subject to Division 2 of this article, it shall be unlawful for any person, directly or
through an agent or employee, to solicit funds or distribute handbills after the expiration of any
permit issued as hereinafter provided.
(e) Subject to Division 2 of this article, it shall be unlawful for the person registering or
applying, or the agents or employees thereof, to solicit funds or distribute handbills for a purpose
other than that set out in the registration statement or application upon which the permit was
issued.
(f) It shall be unlawful for any person who shall solicit funds or distribute handbills in
the town to represent that the issuance of a permit by the town constitutes an endorsement or
approval of the solicitation or distribution by the town or its officers or employees.
(g) It shall be unlawful for any person to distribute or cause to be distributed,
deposited, placed, thrown, cast, scattered, handed out or circulated any handbill in or upon any
premises which are temporarily or continuously uninhabited or vacant.
(h) It shall be unlawful for any person to distribute or cause to be distributed,
deposited, placed, thrown, cast, scattered, handed out or circulated any handbill upon any
premises which are inhabited and not otherwise posted as provided for in subsection (i) below,
except by:
(1) Handing or transmitting such handbill directly to the owner, occupant, or
any other person then present in or upon such premises; or
(2) Placing or depositing the handbill in a secure manner to prevent such
handbill from being blown or drifting about the premises, except that mailboxes may not be used
when prohibited by federal postal laws or regulations.
(i) It shall be unlawful for any person to distribute or cause to be distributed,
deposited, placed, thrown, cast, scattered, handed out or circulated any handbill upon any
premises if requested not to do so by the owner, occupant, or any other person then present in
or upon such premises, or if there is placed on such premises, in a conspicuous place upon or
near the main entrance to the residence, a weatherproof card, not less than three inches by four
Ordinance No. 2024-42, Page 4
inches in size bearing the words "no trespassing," "no peddlers," "no advertisements," "no
solicitation," no handbills," or any similar notice indicating in any manner that the occupants of
such premises do not desire to be molested or to have their right of privacy disturbed, or to have
any such handbill left upon such premises. The letters on such cards shall be not less than two-
thirds of an inch in height.
Q) It shall be unlawful for any person to distribute or cause to be distributed,
deposited, placed, thrown, cast, scattered, handed out or circulated any handbill in any place,
under any circumstances, which does not have printed on the cover, front or back thereof, the
name, address and telephone number of the handbill sponsor who caused the same to be
distributed; provided, however, that in the case of a fictitious person or club, in addition to such
fictitious name, the true names and addresses of the owners, managers, or agents for the fictitious
person or club sponsoring such handbill shall also appear thereon.
Sec. 4.03.004 Penalty for violation.
Any person violating any of the provisions or terms of this article shall be deemed guilty of
a misdemeanor and, upon conviction, shall be punished by a fine not to exceed the sum of
$500.00 for each offense, and each and every day such violation shall continue be deemed to
constitute a separate offense. Allegation and evidence of a culpable mental state is not required
for proof of any offense defined by this article.
Sec 4.03.005 Supervision of child solicitors.
It shall be unlawful for any person to use any children 13 years of age or less for any type
of solicitation or handbill distribution purposes unless the child or children are actively supervised
by an adult individual at least 18 years of age, who has obtained the permit required by this article,
or is the agent of the individual who obtained the permit. In all cases the supervising adult shall
always be within 100 yards of the child solicitor.
Sec. 4.03.006 Permit —Grounds for denial or revocation.
(a) The police department may deny a permit to any applicant for good cause, which
shall include but not be limited to, the following:
(1) being a fugitive from justice, including any outstanding arrest warrant;
(2) submission of an incomplete application for a permit; or
(3) providing false and/or misleading statements on a permit application.
(b) Failure to comply with any of the provisions of this article shall constitute grounds
for denial or revocation of any permit sought to be issued or issued in accordance with the
provisions of this article.
Sec.4.03.007 Appeals.
Should an applicant or registrant be denied a permit, or have a permit revoked, he/she
may appeal that action to the Town Manager by submitting a letter and/or related documentation
within ten days of the denial or revocation, specifying the reasons why the permit should have
been granted.
Ordinance No. 2024-42, Page 5
The Town Manager shall consider the reasons for the denial or revocation of a permit and
shall render a decision on the appeal within 21 days of the date the appeal was received by the
Town Manager. The decision of the Town Manager shall be final. No new application for a permit
will be considered for six months after denial or revocation, unless said denial or revocation is
without prejudice or is conditional and the conditions have been satisfied as determined by the
chief of police.
Sec. 4.03.008 Sale of merchandise on public right-of-way.
It shall be unlawful for any person to peddle, solicit, sell, offer for sale, or exhibit for sale
any merchandise upon any public sidewalk, street, street right-of-way, parkway, or other public
right-of-way.
Sec. 4.03.009 Affirmative defense and exemption.
(a) It shall be an affirmative defense to prosecution under this article if the person is
occupying the public right-of-way for the purpose of selling newspapers or publications of other
printed material which deal with the dissemination of information or opinion; however, this defense
is not available if said act occurred upon the paved surface or shoulder of any public street,
highway or road.
(b) The provisions of this article shall not apply to:
(1) The regular delivery of newspapers or magazines or other items which
have been subscribed to by the persons receiving them or by occupants of the premises to
which they are delivered;
(2) The interruption of service notices by utility companies;
(3) The distribution of mail by the United States government; and
(4) The service of any lien foreclosure or governmental notices of any
character distributed by the town or any other governmental entity.
Sec.4.03.010 Exhibiting sign or card prohibiting solicitors and handbill
distributors.
(a) A person desiring that no merchant or other person engage in handbill distribution
or a home solicitation at his/her premises shall exhibit, in a conspicuous place upon or near the
main entrance to the premises, a weatherproof sign or card, not less than three inches by four
inches in size bearing the words "no trespassing," "no peddlers," "no advertisements," "no
solicitation," "no handbills," or any similar notice indicating in any manner that the occupants of
such premises do not desire to be molested or to have their right of privacy disturbed, or to have
any such handbill left upon the premises. The letters on such sign or cards shall be not less than
two-thirds of an inch in height.
(b) Every person upon going onto any premises shall first examine the premises to
determine if any notice prohibiting solicitation or handbill distribution is exhibited upon or near the
main entrance to the premises. If notice prohibiting soliciting or handbill distribution is exhibited,
the person shall immediately depart from the premises without distributing, placing, or depositing
Ordinance No. 2024-42, Page 6
any handbill or disturbing the occupant, unless the visit is the result of a request made by the
occupant.
(c) No person shall go upon any premises and ring the doorbell, or rap or knock upon
the door or create any sound in a manner calculated to attract the attention of the occupant of the
premises, for the purpose of securing an audience with the occupant and engaging in or
attempting to engage in a solicitation or distribution transaction, if a sign or card, as described in
this section, is exhibited in a conspicuous place upon or near the main entrance to the premises,
unless the visit is the result of a request made by the occupant.
(d) No person, other than the owner or occupant of the premises, shall remove,
deface, or render illegible a sign or card placed by the occupant pursuant to this section.
(e) Any merchant who has gained entrance to a premises, or audience with the
occupant, whether invited or not, shall immediately depart from the premises without disturbing
the occupant further when requested to leave by the occupant.
Secs 4.03.011-4.03.040 Reserved.
DIVISION 2. NONCHARITABLE SOLICITATION AND HANDBILL DISTRIBUTION
Sec.4.03.041 Exception.
The provisions of this division shall not apply to a person engaged in a solicitation for a
charitable purpose, a political purpose or a religious purpose.
Sec. 4.03.042 Permit application.
(a) Any person desiring to make home solicitation transactions or distribute handbills
within the town shall file a written application for a permit to do so with the town's Police
Department, which application shall show:
(1) The name, date of birth and address of the person applying and desiring to
make home solicitations.
(2) No person younger than 18 years of age shall conduct any solicitation
within and upon public rights -of -way within the town.
(3) Whether the person applying is a natural person, partnership, corporation
or association, and:
a. If a natural person, the business or residence address and
telephone number must be given.
b. If a partnership, the names of all partners and the principal business
address and telephone number of the partnership and the address and telephone number of each
partner must be given.
C. If a corporation, the person applying must:
i. State whether it is organized under the laws of this state or
is a foreign corporation;
Ordinance No. 2024-42, Page 7
ii. Show the mailing address and telephone number of the
principal place of business;
iii. Show the mailing address, business location, telephone
number and name of the individual in charge of the town office of such corporation, if any;
such corporation; and
V. State the names of all officers and directors or trustees of
V. If a foreign corporation, state the place of incorporation.
d. If an association, the application must:
i. Show the association's principal business address, and
telephone number, if any;
ii. Show names and principal business or residence addresses
and telephone numbers of all members of the association unless they exceed ten in number, in
which case the application shall so state and the person registering may alternatively list the
names of principal business or residence addresses and telephone numbers of the officers and
directors or trustees of the association; and(iii)lf the association is part of a multistate organization
or association, the mailing address and business location of its central office shall be given, in
addition to the mailing address and business location of its local office.
(4) The names, mailing addresses and telephone numbers of all individuals
who will be in direct charge or control of the solicitation of funds or distribution of handbills.
(5) The time period within which the solicitation of funds or distribution of
handbills is to be made, giving the date of the beginning of solicitation and its concluding date.
(6) A description of the methods and means by which the solicitation of funds
or distribution of handbills is to be accomplished.
(7) The names of other communities in which the applicant has made home
solicitations or distribution of handbills in the past six months.
(8) The nature of merchandise to be sold or offered for sale or the nature of
the services to be furnished.
(9) Whether such applicant, upon any such order so obtained, will demand,
accept or receive payment or deposit of money in advance of final delivery.
(10) Each applicant shall provide proof of identification through submission of a
valid driver's license or other valid/official photo ID.
(11) A statement to the effect that if a permit is granted, such permit will not be
used or represented to be an endorsement or approval by the town or any of its officers or
employees.
(12) Any other information which the town deems necessary for the
administration of this division.
Ordinance No. 2024-42, Page 8
a. The application must be signed by the applicant, if the person
applying is an individual; if the applicant is a partnership, by the partner charged with disbursing
the funds solicited or overseeing the handbill distribution; if the applicant is a corporation or an
association, by its officer charged with disbursing the funds solicited or overseeing the handbill
distribution. The individual signing the application shall sign the application and swear before an
officer authorized to administer oaths that he/she carefully read the application and that all the
information contained therein is true and correct.
b. The application must be accompanied by a copy of a valid state
sales tax certificate, if applicable.
C. Information provided by the applicant in accordance with the
provisions of this division shall be subject to verification by the Police Department. Such
application shall also be satisfactory written proof of the individual's authority to represent the
partnership, corporation, association or business entity.
Sec. 4.03.043 Permit fee generally.
Every application shall be accompanied by a nonrefundable application fee of $50.00
subject to change by resolution by town council in order to compensate the town for the cost of
administering this division, and such fee will not be refunded if a permit is not issued. No permit
provided for by this division shall be issued until such fee has been paid by the applicant.
Sec. 4.03.044 Permit fee exemptions.
The permit fee required for the issuance of a permit under the provisions of this division
shall not be required of the following:
(1) Ordinary commercial travelers who sell or exhibit for sale goods, wares or
merchandise to persons selling and dealing in the same within the town.
(2) Persons offering for sale agricultural products, meats, poultry or other
articles of food grown or produced by such persons.
(3) The provisions of this article shall not apply to public utility companies or
others operating under franchises granted by the town, insurance salespeople, real estate sales
people, and others licensed by the state, political groups or organizations which are subject to
financial disclosure under state or federal law.
(4) The provisions of this article shall not apply to commercial agents dealing
with local business establishments in the usual course of business.
(5) Persons engaged in interstate commerce.
Sec. 4.03.045 Permit issuance, duration and form.
(a) After review of the application to determine its compliance with section 4.03.042
above, and within ten business days of the receipt of the application, unless it is determined that
the applicant has provided false or incomplete information on its application, the Police
Department shall either issue a permit, or notify the person applying that the application does
Ordinance No. 2024-42, Page 9
not comply with the requirements of section 4.03.082 above and specifically point out what
information or explanation has not been furnished that is required before a permit can be issued.
(b) A permit requested under this division shall be issued for the length of time
requested, not to exceed one year.
(c) The town shall prescribe the form of the permit. Each such permit shall be printed
in black and the following shall be printed thereon: "The issuance of this permit is not an
endorsement by the Town of Prosper or any of its officers or employees." Each permit shall bear
a permit number which is the same as the files containing the application filed by the applicant.
Sec. 4.03.046 Identification.
(a) Each solicitor and handbill distributor shall carry with him/her and produce upon
request the following information and identification:
(1) Authorization to represent the permittee by holding a copy of the permit
issued by the town;
(2) copy of the valid state sales tax certificate, if applicable; and
(3) A valid driver's license or other valid/official photo ID.
(4) Upon issuance of the badge by the police department, the following
requirements shall apply:
a. The badge issued shall be in such form and requirement so as to
fully identify the person soliciting and will bear a photographic likeness of the solicitor and shall
contain an expiration date.
b. The badge shall be valid only for the person to whom it is issued
(nontransferable). Each solicitor is also required to carry a state approved picture identification
card or a state driver's license as proof of identification.
C. The badge issued shall be carried/displayed by the solicitor in plain
sight while he is engaged in soliciting.
d. The badge is and shall remain the property of the town and may be
revoked and required to be surrendered at any time for any false or misleading information on the
permit application, for violation of any town ordinance, including the provisions set forth in this
article, and for violation of any state or federal law.
Sec. 4.03.047 Revocation of permit.
Any permit issued under this article may be revoked by the police department for any of
the following reasons:
1. Fraud or misrepresentation in the application for a permit;
2. Fraud or misrepresentation in the course of conducting solicitation activities;
3. Conducting solicitation activities contrary to the conditions of the permit; or
Ordinance No. 2024-42, Page 10
4. Conducting solicitation activities in such a manner as to create or constitute a danger to
the public health, safety or welfare.
Upon revocation, the police department shall deliver written notice to the permit holder
stating the action taken and the reasons supporting such action. The written notice shall be
delivered to the permit holder's place of business or mailed to the permit holder's last known
address. The chief of police or designee shall have the authority to seize any and all permit
badges possessed by persons conducting business as a solicitor while the official notification
process is underway. At such time, any and all solicitation activities conducted under the authority
of that permit shall cease. Any appeal of such revocation shall be subject to the provisions of
section 4.03.007.
Sec. 4.03.048 Public disclosure.
All applications, whether or not a permit has been issued, shall be public record and shall
be available for inspection by members of the public during regular business hours, and copies
may be obtained at cost."
SECTION 3
Any person, firm, corporation, or business entity violating this Ordinance or any provision
thereof, or as amended, shall be deemed guilty of a misdemeanor, and upon conviction thereof
shall be fined any sum not exceeding Five Hundred Dollars ($500.00). Each continuing day's
violation under this Ordinance shall constitute a separate offense.
SECTION 4
Should any section, subsection, sentence, clause, or phrase of this Ordinance be declared
unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any
and all remaining portions of this Ordinance shall remain in full force and effect. Prosper hereby
declares that it would have passed this Ordinance, and each section, subsection, clause, or
phrase thereof irrespective of the fact that any one or more sections, subsections, sentences,
clauses, and phrases be declared unconstitutional or invalid.
SECTION 5
All provisions of any ordinance in conflict with this Ordinance are hereby repealed to the
extent they are in conflict; but such repeal shall not abate any pending prosecution for violation of
the repealed ordinance, nor shall the appeal prevent a prosecution from being commenced for
any violation if occurring prior to the repealing of the ordinance. Any remaining portions of said
ordinances shall remain in full force and effect.
SECTION 6
This Ordinance shall become effective from and after its adoption and publication as
required by law.
Ordinance No. 2024-42, Page 11
DULY PASSED, APPROVED, AND ADOPTED BY THE TOWN COUNCIL OF THE
TOWN OF PROSPER, TEXAS, ON THIS 11TH DAY OF JUNE, 2024.
David F. Bristol, Mayor
ATTEST:
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Michelle Lewis Sirianni, Town Secretary
APPROVED AS TO FORM AND LEGALITY:
Terrence S. Welch, Town Attorney
Ordinance No. 2024-42, Page 12