Alhambra Municipal Code Ch. 5.12 Fire, Bankrupt and Closing Out Sales

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ADVERTISE, ADVERTISEMENT, ADVER-TISING, PUBLISH, PUBLICATION. Any and all means, whether oral, written, lettered or printed, used for conveying to the public notice of the conduct of a sale as defined herein, or notice of intention to conduct such sale, including but not limited to oral or written announcements by proclamation or outcry, newspaper advertisement, magazine advertisement, handbill, written or printed notice, printed display, billboard display, poster and radio announcement.

PERMIT. A permit issued pursuant to this chapter.

PERMITTEE. Any person to whom a permit has been issued pursuant to this chapter.

SALE. Any sale of or any offer to sell, to the public, or any group thereof, goods, wares or merchandise on order, in transit or in stock, in connection with a declared purpose as set forth by advertising that such sale is anticipatory to or to avoid the termination, liquidation, revision, windup, discontinuance, removal, dissolution or abandonment of the business or that portion of the business conducted at any location; and

All SALES advertised in any manner calculated to convey to the public the belief that upon the disposal of the goods to be placed on sale, the business or that portion thereof being conducted at any location will cease, be removed, be interrupted, discontinued or changed; and

All SALES advertised to be “adjuster's sale,” “adjustment sale,” “assignee's sale,” “bankrupt sale,” “benefit administrator's sale,” “benefit of creditors' sale,” “benefit of trustees' sale,” “building coming down sale,” “closing sale,” “closing out sale,” “creditors' committee sale,” “creditors sale,” “damaged goods sale,” “end sale,” “executors' sale,” “final days sale,” “fire sale,” “forced out sale,” “forced out of business sale,” “insolvent sale,” “insurance salvage sale,” “last days sale,” “lease expire sale,” “lease expiring sale,” “loss of lease sale,” “mortgage sale,” “outselling sale,” “receiver's sale,” “removal sale,” “reorganization sale,” “salvage sale,” “selling out sale,” “smoke sale,” “smoke and water sale,” “trustee's sale,” “quitting business sale,” “wholesale closing out sale,” “we quit sale,” “we give up sale,” “fixtures for sale,” or advertised by any other expression or characterization closely similar to any of the foregoing and calculated to convey the same meaning; and

All SALES advertised in a manner calcu-lated to indicate that the goods, wares or merchandise to be sold, or any part thereof, have been involved in any business failure or have been derived from a business which has failed, been closed, discontinued or liquidated; and

All SALES accompanied by notice or advertising indicating that the premises are available for purchase or lease or are otherwise to be vacated; and

All SALES accompanied by advertising indicating a business emergency or failure affecting the seller or any previous holder of the goods to be disposed of.

TREASURER. The City Treasurer.

('86 Code, § 5.12.010) (Ord. 2818, passed - - )

No person shall hereafter publish or conduct any sale of the type herein defined without first obtaining a permit therefor from the City Treasurer in the manner hereinafter provided in this chapter.

('86 Code, § 5.12.020) (Ord. 2818, passed - - ) Penalty, see § 1.12.010

(A) No permit to conduct a sale as defined in this chapter shall be granted except upon written application to the City Treasurer at least 30 days before the sale is to commence, signed and verified before a person authorized to administer oaths, by the person who intends to conduct sale, or, in the case of a corporation, by an officer and the manager of the store, and each application shall set forth and contain the following:

(1) Street address and type of building where such sale is to be held;

(2) The nature of the occupancy, whether by ownership, lease or sublease, the effective date of the termination of such tenancy and the name of the owner;

(3) A copy of all advertisements proposed to be used in connection with such sale, and a statement of the means or methods of advertising to be used in advertising such sale;

(4) The facts in regard to the insurance, bankruptcy, insolvency, assignment, mortgage fore-closure, administration, receivership, trusteeship, removal, executorship removal, or other cause advertised to be the reason for the proposed sale;

(5) An inventory or statement, in such form and in such detail as the City Treasurer may require, setting forth the amount and description of goods, wares and merchandise to be sold at such sale, and when required by the City Treasurer the date of acquisition of such goods, wares or merchandise, and the persons from whom obtained and the place from which such goods were last taken.

(6) If the sale implies that the business is closing, a statement that the applicant intends to close and remove from the premises and the time when he intends to do so.

(B) The City Treasurer may require that all goods, wares and merchandise listed upon the inventory or statement shall be so described in detail by the manufacturer's name and lot number, the individual number of articles so numbered, colors, sizes and otherwise, that the identity of such goods with the goods listed on such inventory can be readily determined. The City Treasurer may require that each item listed on the inventory shall be tagged with a label or tag securely attached thereto, on which there is written or printed a number corresponding with that item on the inventory.

(C) Upon the filing of the application, the City Treasurer may make or cause to be made an examina-tion, audit or investigation of the applicant and his affairs in relation to the proposed sale.

(D) No permit shall be issued if any one or more of the following facts or circumstances are found to exist;

(1) That applicant was granted a license hereunder for a closeout type of sale within two years preceding the date of the filing of the application.

(2) That the inventory includes goods, wares, and merchandise purchased by the applicant or added to his or her stock in contemplation of such sale and for the purpose of selling the same at such sale. For the purpose of this division (D)(2), any unusual addition to the stock of such goods, wares and merchandise made within 60 days prior to the filing of such application shall be prima facie evidence that such addition was made in contemplation of such sale and for the purpose of selling the same at such sale.

(3) The acquisition by applicant of a bankrupt stock of goods or similar merchandise lot from another area within six months of application.

(4) That any representation made in the application is false.

(5) That the applicant has not operated as a retail merchant at that location for at least one year prior to date of sale.

(6) That the inventory is incomplete.

(7) That the advertising set forth is false, fraudulent, deceptive or misleading in any respect.

(8) That the methods to be used by the applicant in conducting the sale are such as, in the opinion of the City Treasurer, will work a fraud upon the purchasers.

(9) The applicant or other persons connected with the sale are morally unfit or have been convicted of a crime involving moral turpitude.

(E) The City Treasurer may refuse a permit because of the insufficiency of the information set forth in the application, but in such event the City Treasurer shall grant the applicant permission to file an amended application.

(F) No application, however, shall be denied unless an opportunity for a hearing has been given to the applicant. Notice of the hearing shall be effected by personal delivery of the notice to the applicant or by depositing in the United States mail such notice, directed to the applicant at this address given in the application.

(G) No application for any such permit shall be accepted by the City Treasurer for filing unless accompanied by a nonrefundable filing fee in an amount established by City Council resolution. In addition, the applicant shall be charged for the investigation of the application, and any investigation during the sale at the actual cost of such investigation.

(H) Each permit issued under the provisions of this section shall be printed, written or stamped on the face thereof following: "This permit is granted by the City Treasurer and accepted by the permittee, its officers, agents and employees, upon the condition that such permittee shall comply with and abide by all the provisions of those sections in Chapter 5.12 of the Alhambra Municipal Code," with a line thereunder for signature by the permittee and a witness.

(I) At the time of delivery of the permit, such statement must be signed by the permitted or an officer or manager, in the presence of the City Treasurer or one of his or her deputies.

('86 Code, § 5.12.030) (Ord. 2818, passed - - ; Am. Ord. 3962, passed - - ; Am. Ord. 4587, passed 6-27-11; Am. Ord. 4588, passed 7-11-11)

Any permit issued under the provisions of this chapter shall authorize the one type of sale named in the application, at the place named therein, for a period of up to 30 calendar days, which period may be extended at the discretion of the City Treasurer, and shall permit the sale of goods only which are set out in the application, all of which goods throughout the duration of the sale must be definitely separated from any other goods displayed at, or within the store or place of business; and all advertising, signs or notices referring to, or calling attention to the sale, must be confined to the display, or displays, of goods involved in the sale.

('86 Code, § 5.12.040) (Ord. 2818, passed - - ; Am. Ord. 3962, passed - - ; Am. Ord. 4252, passed - - )

(A) Such permit shall be valid only for the advertising, representation and sale of the particular goods, wares or merchandise described in the original application therefor, and at the particular time and particular place stated therein, and by the particular applicant and any renewal, replenishment or substitu-tion of such goods, wares or merchandise, or change of such time or place for such sale, or change of person conducting the sale, shall be unlawful and shall render such permit void.

(B) No person in contemplation of conducting any such sale or special sale, or during the con-tinuance of such a sale, shall order any goods, wares or merchandise for the purpose of selling them at such sale.

(C) Each sale of goods, wares or merchandise as were not inventoried and described in the original application shall constitute a separate offense under this section.

(D) The City Treasurer is further empowered to make such rules and regulations for the conduct and advertisement of such sale or special sale as in his or her opinion will serve to prevent deception and to protect the public.

('86 Code, § 5.12.050) (Ord. 2818, passed - - ) Penalty, see § 1.12.010

(A) The City Treasurer shall have the power to revoke at any time any permit granted in accordance with this chapter whenever any such sale or special sale is being conducted in violation of any of the provisions of this chapter or in such manner as to deceive or defraud the public, or if;

(1) The holder of any such permit has made any material misstatement in the application for such permit;

(2) He has been guilty of any fraudulent practice, or practices, in the conduct of the sale authorized by such permit;

(3) He or she has failed to include in the inventory required by the provisions of this chapter the goods, wares or merchandise required to be contained in such inventory;

(4) He or she has added, caused to be added, or permitted to be added any goods, wares or merchan-dise not described in the original inventory;

(5) He or she has violated any of the provisions of this chapter or of the laws pertaining to advertising.

(B) No permit shall be revoked for any cause above enumerated until a written complaint has first been filed with the City Treasurer setting forth in ordinary, concise language the charge made against the permit fee. Such complaint shall be verified by the oath of the person making the charge, such verifi-cation to be in the form prescribed by the code of civil procedure for verified pleadings in civil actions. Service of such complaint and notice of hearings shall be done by depositing the same in the United States Mail, addressed to the applicant at his or her address given in the application. Such notice and copy of the complaint shall be served or given to the permittee at least five and not more than ten days prior to the date set for the hearing. At any such hearing the permittee shall be given an opportunity to be heard and defend himself or herself, and he or she may call witnesses in his or her behalf. After conducting such hearing, the City Treasurer may suspend or revoke the permit. If the violations which form the basis of such complaint continue after notification to the permittee, the City Treasurer may suspend the permit until the hearing to consider the revocation of the permit. Such suspension shall be effective immediately upon giving notice thereof to the person in charge at the location of the sale. During such suspension, no person shall conduct any sale of the type herein defined.

('86 Code, § 5.12.060) (Ord. 2818, passed - - )

Any removal of any goods, wares or merchandise inventoried and described in the original application form from the place of sale mentioned in such application shall cause such goods to lose their identity as the stock of any of the sales defined herein, and no permits thereafter will be issued for the conducting of a sale of any such goods, wares or merchandise in such manner as to identity them with the store, store name, store owner or location referred to in the original application.

('86 Code, § 5.12.070) (Ord. 2818, passed - - ) Penalty, see § 1.12.010

Upon commencement and throughout the duration of any sale, as herein defined, the permit issued by the City Treasurer shall be prominently displayed near the entrance to the premises. A duplicate original of the application and stock list pursuant to which such permit was issued, shall at all times be available to the City Treasurer, or to his or her inspector and investigators, and the permittee shall permit such inspector and investigators to examine all merchandise in the premises for comparison with such stock list.

('86 Code, § 5.12.080) (Ord. 2818, passed - - ) Penalty, see § 1.12.010

Suitable books and records shall be kept by the permittee and shall at all times be available to the inspector and investigators. At the close of business each day the stock list attached to the application shall be revised and those items disposed of during such day shall be so marked thereon.

('86 Code, § 5.12.090) (Ord. 2818, passed - - ) Penalty, see § 1.12.010

The provisions of this chapter shall not apply to or affect any publisher of a newspaper, magazine or other publication, who publishes any such advertisement in good faith, without knowledge that the provisions of this chapter have not been complied with.

('86 Code, § 5.12.100) (Ord. 2818, passed - - )

If the applicant operates a similar business, at more than one location, any sale, as defined herein shall include only such goods, wares and merchandise as are usually carried in stock at the location of the sale.

('86 Code, § 5.12.120) (Ord. 2818, passed - - ) Penalty, see § 1.12.010

During the course of any type closing out sale, no orders shall be taken for purchase of items not listed in the inventory submitted with the application.

('86 Code, § 5.12.130) (Ord. 2818, passed - - ) Penalty, see § 1.12.010