LEGAL CORNER: Who’s That Knocking at My Door?

John Dolgetta, Esq. | July 14, 2016

John Dolgetta, Esq.
John Dolgetta, Esq.

Recently, in many communities throughout the Hudson Valley, there has been an increased incidence of door-to-door solicitation being engaged in by businesses and businesspersons, such as cable companies, real estate agents and real estate developers. These businesses and businesspersons are going to the homes of residents, without notice or valid permits, ringing doorbells and knocking on doors in an attempt to solicit business, sign up new customers and make offers to purchase homes from the residents. There have also been allegations made that these individuals and businesses are engaging in “blockbusting,” which is illegal under federal and New York State law. While the law clearly prohibits “blockbusting,” solicitation is not illegal and, provided one complies with the local laws of the municipality, it is permitted.

In response to the increased soliciting, canvassing and peddling, local communities, such as Orangetown and Clarkstown in Rockland County, have enacted new local ordinances establishing non-solicitation lists and registries. Door-to-door solicitation, canvassing and peddling are not new phenomena and many municipalities throughout New York State have enacted, in one form or another, ordinances that regulate these activities. However, due to the pressure tactics being used, some local municipalities and residents introduced and passed local laws to curtail and control door-to-door solicitation. These laws allow residents who do not wish to be solicited to register on a non-solicitation registry and the new laws provide for increased fines and penalties.

‘Blockbusting’ is Illegal

“Blockbusting” refers to a practice, usually engaged in by real estate agents, real estate investors and real estate developers, used to frighten homeowners into selling their property by telling them that persons who are members of a particular protected class (e.g., minorities) are moving into their neighborhood, which will cause their property value to decline. This causes homeowners to become fearful and makes them sell their property at a loss. The people engaging in this practice profit from buying the property at the lower price and then selling it to the particular protected class at a higher price. It is important to note that this practice is illegal under both federal and New York State law. Section 296 of the New York State Human Rights Law Subsection 3-b (entitled Unlawful Discriminatory Practices), provides that:

 “[i]t shall be an unlawful discriminatory practice for any real estate broker, real estate salesperson or employee or agent thereof or any other individual, corporation, partnership or organization for the purpose of inducing a real estate transaction from which any such person or any of its stockholders or members may benefit financially, to represent that a change has occurred or will or may occur in the composition with respect to race, creed, color, national origin, sexual orientation, military status, sex, disability, marital status, or familial status of the owners or occupants in the block, neighborhood or area in which the real property is located, and to represent, directly or indirectly, that this change will or may result in undesirable consequences in the block, neighborhood or area in which the real property is located, including but not limited to the lowering of property values, an increase in criminal or anti-social behavior, or a decline in the quality of schools or other facilities.”

Federal law (see 42 U.S.C. Section 3604 (e)) provides that “…it shall be unlawful…, [f]or profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.” While it is clear that activities which constitute “blockbusting” are illegal, simply because the real estate agents engage in solicitation or canvassing, such activities are not deemed to be by their nature automatically illegal.

 Is ‘Door Knocking’ or Solicitation Illegal?

As stated earlier, door-to-door solicitation is not illegal. Solicitation, canvassing and peddling are permitted provided one complies with requirements of the local ordinances. Nearly all municipalities have “Peddling and Solicitation” laws and require that a “solicitor,” “canvasser” or “peddler” obtain a permit or license from the municipality before engaging in any form of solicitation, canvassing or peddling.

According to Section 143.4 of the Peddling and Soliciting Ordinance of the Village of Airmont, a “solicitor and canvasser” is defined as “[a]ny person, principal or agent engaging in door-to-door solicitation at homes, businesses or in any public place or street or from any premises not an established place of business, or order for sale of goods, wares, commodities or other merchandise, including books or periodicals, or for the performance of future services, or for the making, manufacturing or repairing of any article or thing whatsoever for future delivery.” Clearly, this definition would apply to real estate agents as they would be “engaging in door-to-door solicitation…for the performance of future services….” Many of the ordinances from other municipalities have similar definitions.

Once it is established that one is deemed to be a “solicitor,” “peddler” or “canvasser” under the local ordinance then that person must obtain a permit or license. Each municipality has different requirements and it is incumbent upon the individual and/or business to review the specific ordinance of each municipality to ensure that he, she or it complies with the requirements of that particular municipality.

Many of the ordinances require that detailed information be provided as part of the license application. Again, using the Village of Airmont’s ordinance as an example, some of the information required is as follows: (i) name and address of the applicant; (ii) the physical description of the applicant; (iii) “a detailed description of the particular business, trade or occupation for which the license is requested;” (iv) “the name and address of the person, firm or corporation, if any, he represents; the names and addresses of all partners, if a partnership; the names and addresses of the principal officers, if a corporation; and the name and address of a person upon whom a legal process and notice may be served;” (v) “prior arrests and the disposition thereof;” (vi) “references as to the applicant’s good character;” (vii) “if peddling or soliciting is to be conducted as a team, group or other organized party under single leadership or direction, control or sponsorship, the above-required personal information shall also be supplied as to such leader or person in charge and with respect to each such other person, employee or agent so involved;” and (viii) “if such applicant represents or is the agent for a principal, there shall be appended to the application a letter or other evidence of authorization or agency from the principal describing the nature and scope of such applicant’s authority.” (See Village of Airmont Ordinance, Chapter 143, “Peddling and Soliciting”). It is clear from these requirements that real estate brokerage firms, as well as individual brokers and agents, are required to obtain permits if an agent or agents from a particular firm would like to engage in door-to-door solicitation.

Many of the ordinances also require that the municipalities conduct criminal background checks as well (e.g., Village and Town of Harrison [see http://ecode360.com/8312619]; City of Rye [see http://ecode360.com/6973732]). The information required as part of the application is extensive and unless the laws are complied with and licenses are obtained, real estate agents are not permitted to simply go door-to-door to solicit new business and clients.

 The Non-Solicitation Registry
Significant Penalties for Violators

As indicated earlier, several town, villages and cities throughout the area have enacted ordinances, which allow residents to register with the municipality on its “non-solicitation registry” or “non-solicitation list.” The most recent municipalities to do so were the Town of Orangetown on April 21, 2016 (which became the first municipality in Rockland County to enact a “Non-Solicitation Registry”) and the Town of Clarkstown on June 21, 2016. Other municipalities that have also had similar “Non-Solicitation Registry” laws on the books for some time now include the City of White Plains, the Town and Village of Harrison, the Town of New Castle and the City of Rye. The municipalities will also provide residents with badges, stickers or signs to make solicitors aware that they and their properties are off limits.

It is important to note that the fines and penalties for a violation of the newly enacted “Non-Solicitation Registry” laws are severe. In Orangetown, any person who violates the law will face the following penalties: “A. For a first offense, a fine of not less than $500 and not more than $1,500; B. For a second offense within 24 months, as measured from occurrence to occurrence, a fine of not less than $1,500 and not more than $3,500; and C. For a third, or more, offense within 24 months, a fine of not less than $3,500 and not more than $10,000, or imprisonment not to exceed 30 days, or both.”

In Clarkstown, Section 208-18 of the “Peddling, Hawking and Soliciting” law provides that a first time offender may be fined up to $2,500, a second time offender (if found guilty within 18 months of the first offense) will be fined no less than $2,500 up to $5,000, a third time offender (if found guilty within 18 months of the second offense) will be fined not less than $7,500 up to $10,000, and a fourth time offender or more (if found guilty within 18 months of the third offense) shall be punished by a fine of no less than $10,000 and not more than $15,000. The ordinance further provides that “[t]he continuation of an offense…shall constitute, for each day the offense is continued, a separate and distinct violation hereunder.” These penalties are substantial and can even lead to imprisonment.

Real estate agents and brokerage firms need to be aware of these laws and need to be sure that they comply with their requirements. Many real estate agents and brokerage firms may want to use these techniques and solicit door-to-door; however, before they do so, they need to check with their municipalities and see what is required. Before an agent or broker knocks on a person’s door, he or she needs to think twice, be aware of what the law requires and the consequences for any violation.

 

The foregoing article is for informational purposes only and does not confer an attorney-client relationship.

 

John Dolgetta, Esq.
Legal Corner author John Dolgetta, Esq. is the principal of the law firm of Dolgetta Law, PLLC. For information about Dolgetta Law, PLLC, please visit http://www.dolgettalaw.com. The foregoing article is for informational purposes only and does not confer an attorney-client relationship.”