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HomeMy WebLinkAboutOrdinance - 2003-O0019 - Regulating Ice Cream Sales Vehicles Definind Word "Ice Cream Sales Vehicle" - 02/13/2003First Reading February 13, 2003 Item No. 53 ORDINANCE 2003-00019 Second Reading February 27, 200 Item No. 13 AN ORDINANCE REGULATING ICE CREAM SALES VEHICLES USING PUBLICW AYS WITHIN THE CORPORATE LIMITS OF THE CITY OF LUBBOCK, DEFINING THE WORD "ICE CREAM SALES VEHICLE," FOR THE PURPOSE OF THIS ORDINANCE; DESIGNATING THE QUALIFICATIONS OF PERSONS ENTITLED TO DRIVE AN ICE CREAM SALES VEHICLE, REQUIRING A PERMIT; REQUIRING THE FILING OF WRITTEN APPLICATIONS TO OBTAIN A PERMIT; PROVIDING FOR AN APPEAL TO THE LICENSE AND APPEAL BOARD BY APPLICANT WHEN DENIED A PERMIT; MAKING SUCH PERMITS NON- TRANSFERABLE; PROVIDING FEES FOR RENEW AL APPLICATIONS; PROVIDING FOR ISSUANCE OF PERMIT WHEN APPLICANT MEETS QUALIFICATIONS PROVIDED BY ORDINANCE; PROVIDING IDENTIFICATION CARDS FOR PERMIT HOLDERS., PHOTOGRAPHS, EXHIBITION OF SAME IN ICE CREAM SALES VEHICLES BY DRIVERS; PROVIDING 45 DAYS GRACE PERIOD FOR SECURING PERMIT; PROVIDING FOR TEMPORARY PERMITS; MAKING IT UNLAWFUL TO DRIVE AN ICE CREAM SALES VEHICLE OR PERMIT THE SAME TO BE DONE WITHOUT FIRST HA YING SECURED THE PERMIT PROVIDED FOR; MAKING IT UNLAWFUL FOR ANY SUCH ICE CREAM SALES VEHICLE DRIVER TO KNOWINGLY TRANSPORT CERTAIN CLASSES OF PERSONS WITH INTENT TO AID SUCH PERSONS IN THE COMMISSION OF UNLAWFUL ACTS; PROVIDING FOR REVOCATION OF PERMIT; PROVIDING A PENALTY; DIRECTING PUBLICATION OF THE DESCRIPTIVE CAPTION OF THIS ORDINANCE, AND PROVIDING EFFECTNE DATE OF ITS PROVISIONS TEN DAYS AFTER THE SECOND PUBLICATION. WHEREAS, the City of Lubbock has no ordinance establishing qualifications of drivers of ice cream sales vehicles engaged in the business of selling ready-to-eat prepackaged frozen or refrigerated confections, including but not limited to dairy products, directly to consumers within the corporate limits of the City of Lubbock and has no regulatory measures enabling the City to make investigation of persons driving the ice cream sales vehicles, and the City Council finds it to be in the public interest that reasonable regulations be passed so as to authorize investigations to be made concerning the qualifications of ice cream sales vehicles drivers, and that such drivers maintain certain reasonable standards as a condition incident to their continued operation of such vehicles; THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: SECTION 1. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-229, which said Section shall read as follows: "Ice cream sales vehicle means a commercially manufactured, motorized vehicle from which ready-to-eat prepackaged frozen or refrigerated confections, including but not limited to dairy products, are sold directly to consumers." SECTION 2. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-230, which said Section shall read as follows: "It shall be unlawful for any person to drive an ice cream sales vehicle upon or over any street within the corporate limits of the city, without first having obtained from the chief of police a valid ice cream sales vehicle operator's permit." SECTION 3. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-231, which said Section shall read as follows: "Before obtaining an ice cream sales vehicle driver's permit, the applicant shall make a written, signed application therefore to the chief of police accompanied by a fee of thirty dollars ($30.00), payable to the city. Such application shall contain the following information: (1) The full name, age, place of birth and present residential and business addresses of the applicant. (2) The full name of the person or owner for whom the applicant proposes to be employed. (3) The length of the residence of the applicant in the city and the state, and whether he is a citizen of the United States. ( 4) A full personal description of the applicant, including age, height, weight, race, color of eyes, complexion and color of hair, body and facial marks and defects, if any, his complete fingerprints and his photograph, both front and side views. (Fingerprints and photograph to be furnished by police department.) (5) The experience, if any, that the applicant has had as a driver of a motor vehicle; whether married or single; the number of children, if any, in his immediate family; the specific address of his mother and father, if living. (6) Whether applicant has been charged with or convicted of any felony or misdemeanor, and if so, full information concerning each. (7) Whether applicant has been convicted of any violation of any law in the operation of motor vehicles, and if so, full information concerning each." SECTION 4. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-232, which said Section shall read as follows: "No person shall be issued an ice cream sales vehicle driver's permit unless he first produces a valid driver's license issued to him by the State of Texas and a criminal history records information check issued by the Texas Department of Public Safety to the applicant within thirty (30) days prior to the date of the application." SECTION 5. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-233, which said Section shall read as follows: "The chief of police shall investigate or cause to be investigated the character, experience and qualifications of the applicant desiring a city ice cream sales vehicle driver's permit as may be deemed in the best interests of the safety, comfort and health of the general public in the use of the streets by such applicant. The chief of police shall determine whether or not the applicant is qualified for such a city ice cream sales vehicle driver's permit in a manner consistent with such interests. The chief of police shall consider whether the applicant has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of the occupation. In carrying out his duties under this ordinance, the chief of police shall consider: 1. The nature and seriousness of the crime; 2. The relationship of the crime to the purposes for requiring a permit to engage in the occupation; 3. The extent to which a permit might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; 4. The relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the permitted occupation. 5. The extent and nature of the person's past criminal activity; 6. The age of the person when the crime was committed; 7. The amount of time that has elapsed since the person's last criminal activity; evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release; and 8. Other evidence of the person's fitness, including letters of recommendation from: a. Prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; b. The sheriff or chief of police in the community where the person resides; and c. Any other person in contact with the convicted person. SECTION 6. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-234, which said Section shall read as follows: "The fingerprints of each applicant for an ice cream sales vehicle driver's permit under this article shall be checked through local police records and the applicant shall furnish to the police department a copy of the criminal history record check issued by the Texas Department of Public Safety required by this article." SECTION 7. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-235, which said Section shall read as follows: "If the applicant has complied with all of the requirements of this article and if the chief of police determines that the applicant qualified under this article to receive an ice cream sales vehicle driver's permit, the chief of police shall grant such permit." SECTION 8. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-236, which said Section shall read as follows: "The chief of police is authorized to issue an applic~t a temporary ice cream sales vehicle driver's permit for a period not exceeding forty-five (45) days, pending the investigation required by this article, providing other requirements of this article have been satisfied. The chief of police may suspend or revoke such temporary permit for applicant's violation of the public interests as set forth in this article." SECTION 9. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-237, which said Section shall read as follows: "It shall be unlawful for any permitee under this article to drive an ice cream sales vehicle after notice of suspension or revocation of his permit." SECTION 10. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-238, which said Section shall read as follows: "There shall be issued to the applicant, at the time of actual issuance of the ice cream sales vehicle driver's permit, an identification card, which shall be not less than four (4) inches by ten (10) inches in dimension, which card shall contain the full view photograph of the applicant, along with his complete physical description and residence address. The above-mentioned card shall be posted in full view of customers of the ice cream sales vehicle which the driver may be operating." SECTION 11. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-239, which said Section shall read as follow~: "If the chief of police refuses to grant or renew the applicant an ice cream sales vehicle driver's permit, or subsequently suspends or revokes said permit, the applicant shall have the right to appeal to the permit and license appeal board within ten (10) days from the date of such refusal, which appeal shall be perfected by delivering to the city secretary a letter stating that an appeal from the decision of the chief of police is requested. The permit and license appeal board shall, within thirty (30) days after receiving such notice of appeal, hold a hearing thereon, and after the hearing, sustain or reverse the decision of the chief of police. If no appeal is taken from the finding made by the chief of police within the ten-day period provided, the decision of the chief of police shall be final." SECTION 12. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-240, which said Section shall read as follows: "No ice cream sales vehicle driver's permit shall in any manner be assignable or transferable, and each such permit issued shall terminate one year from the date of its issuance; provided, however, that such permit may be renewed from year to year and each application for renewal of such ice cream vehicle driver's permit shall be accompanied by a fee of thirty dollars ($30.00) payable to the city." SECTION 13. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-241, which said Section shall read as follows: "In addition to any other penalty provided by this Code, the chief of police may suspend for a definite period of time not more than six ( 6) months, revoke or deny the renewal of an ice cream sales vehicle driver's permit issued pursuant to the provisions of this article only under one (1) or more of the following conditions: (1) Applicant made any false statement of substance in his application for an ice cream sales vehicle driver's permit. (2) Applicant knowingly aided, abetted or otherwise engaged in the sale or attempted sale of intoxicating liquors, dangerous drugs or controlled substances while performing the duties of an ice cream vehicle driver or while utilizing his ice cream sales vehicle driver's permit, either on or off duty. (3) Applicant knowingly aided, abetted or otherwise engaged in the solicitation or transportation of any persons convicted of any felony or any offense involving moral turpitude, or any offense involving the violation of the Texas Penal Code or the Texas Controlled Substances Act or the Texas Alcohol Beverage Code or any city ordinances governing prostitution or adult entertainment enterprises. ( 4) Applicant acted in any manner to aid, abet or otherwise solicit for prostitutes or any other illegal activity or establishment of any nature. (5) Applicant shall be found guilty or nolo contendere by any court of more than two (2) moving traffic violations within a twelve-month period. (6) The chief of police otherwise disqualified an applicant for an ice cream sales vehicle driver's permit pursuant to the provisions of the Texas Occupations Code, either in the matter of suspension, revocation, or denial of a license or denial of a renewal of a license or permit. If a licensing authority, pursuant to the Texas Occupations Code, suspends or revokes a valid license or denies an applicant a license or the opportunity to be examined for a license because of the applicant's prior conviction of a crime and the relationship of the crime to the license, the licensing authority shall notify the applicant in writing: ( 1) Of the reasons for the suspens10n, revocation, denial, or disqualification; (2) Of the review procedure provided by section this article; and (3) Of the earliest date that the person may appeal. In the event an applicant is refused a license because of his prior conviction of a crime and the relationship of the crime to the permit, pursuant to the provisions of the Texas Occupations Code, the chief of police shall notify the applicant by certified mail, return receipt requested, the person whose license has been suspended or revoked or who has been denied a license or the opportunity to be examined for a license by a licensing authority, who has exhausted administrative appeals, may file an action in the district court of the count in which the licensing authority is located for review of the evidence presented to the licensing authority and its decision." SECTION 14. THAT the Code of Ordinances of the City of Lubbock, Texas, is hereby amended by adding a Section to be numbered 27-242, which said Section shall read as follows: "It shall be unlawful for any person driving an ice cream sales vehicle upon or over any street within the corporate limits of the city , to sell or offer for sale to a consumer any ready-to-eat prepackaged frozen or refrigerated confection, including but not limited to dairy products, at any time earlier than one half ( 1/2) hour before sunrise or later than one half ( 1/2) hour after sunset." SECTION 15. THAT violation of any provision of this Ordinance shall be deemed a misdemeanor punishable as provided by Section 1-4 of the Code of Ordinances of the City of Lubbock. SECTION 16. THAT should any paragraph, section, sentence, phrase, clause or word of this Ordinance be declared unconstitutional or invalid for any reason, the remainder of this Ordinance shall not be affected thereby. SECTION 17. THAT the City Secretary is hereby authorized and directed to cause publication of the descriptive caption of this Ordinance as an alternative method of publication provided by law. AND IT IS SO ORDERED. Passed by the City Council on first reading this 13th day of February , 2003. Passed by the City Council on second reading this 27th day of February , 2003. ATTEST: Reliecca Garza, CitySecretaryO APPROVED AS TO FORM: ~ ~~a~Attomey jk/ordinances/ice cream vendors