Duarte Municipal Code Ch. 5.12 Auctions and Sales by Public Outcry

Every place of business in which a public auction is conducted shall be deemed to be an auction house unless such auction is conducted by a person who has been in business therein for a period in excess of ninety days and the auction therein is conducted as an incident to the closing or liquidation of the business or the liquidation of the stock and such auction is held daily until the business or stock of merchandise of the business is disposed of, not to exceed three days, in any calendar year, in which case, the owner of the business and the auctioneer shall join in an affidavit reciting the facts and circumstances of such sale which affidavit shall be filed with the director of finance of the city of Duarte with the application for license for such auction sale, or sales, and in which case, the license fee shall be as hereinafter provided in Sections 5.12.040 to 5.12.100.

(Ord. 72 § 1, 1960)

Every person conducting, managing or carrying on an auction sale in an auction house or place of business where goods, wares, merchandise or personal property of any kind are regularly sold or disposed of for value by public auction shall pay in advance a license fee as established by city council resolution. Each separate location shall have a separate license.

(Ord. 72 § 2, 1960)

(Ord. No. 926, Exh. A, 11-12-2024)

Each applicant for a license to conduct an auction house which sells or deals in personal property or proposes to accept any personal property on consignment for sale, shall post with the director of finance prior to the issuance of such license a cash or surety company, or other bond satisfactory to the city attorney, in the sum of five thousand dollars in the form prescribed and subject to the conditions hereinafter set forth in Section 5.12.260 relative to sales by public outcry.

(Ord. 72 § 3, 1960)

"Auction sale" means a sale of property by public outcry to the highest bidder and all such sales in the city of Duarte shall be conducted only by a person or persons licensed pursuant to this chapter.

(Ord. 72 § 4 (part), 1960)

No license shall be granted to a public auctioneer unless it shall appear in his application duly sworn to that such person has been a bona fide resident of the state of California for a period of at least one year immediately preceding the filing of his application.

(Ord. 72 § 4 (part), 1960)

Each applicant for a license shall pay a sum established by resolution of the city council to the city of Duarte at the time of filing his original application which sum shall be retained by the city as compensation for making an investigation of the statements and the references contained in the application. If the license is denied, the sum shall be retained by the city for its investigation. If the license is granted no further sum need be paid for the balance of the first license year.

(Ord. 781 § 1 (part), 2006; Ord. 72 § 4 (part), 1960)

The license may be renewed annually upon the payment of an additional investigation fee each year and payment of the license fee, and any such license may be revoked or suspended for cause after a hearing by the city council without refund.

(Ord. 781 § 1 (part), 2006; Ord. 72 § 4 (part), 1960)

"Auctioneer" means and includes any person who by public outcry sells or offers to sell to the highest bidder any of the property hereinafter described, or any person who conducts an auction sale in the city of Duarte where any and all persons who choose to do so are permitted to attend and offer bids, or any person who shall advertise as a public auctioneer, or in any manner hold himself out as such, or who shall receive fees or a commission for services as such.

(Ord. 72 § 4 (part), 1960)

Any person holding or conducting an auction sale of real or personal property except in an auction house as defined in Section 5.12.010 shall pay to the director of finance a fee of twenty-five dollars per day for each and every day or portion of any day that such auction sale is held; provided, however, that in the case of the closing of a business or the liquidation of the stock of a business which business has been operating in the city of Duarte for a period of time in excess of one year, auction sales may be held in connection therewith in the place of business for not to exceed three consecutive business days upon the payment of one license fee of twenty-five dollars. Provided, further, however, that an affidavit containing the matters set forth in Section 5.12.010 is attached to a certified copy of the inventory of all articles to be offered for sale at any such auction and filed with the application for such license. Said affidavit shall further recite that not more than ten percent of the said items on inventory has been added to the stock or merchandise within the period of thirty days immediately preceding the application for license.

(Ord. 72 § 4(b), 1960)

The provisions of Sections 5.12.040 to 5.12.090 shall not apply to an auction sale conducted solely for charitable purposes. No auction sale shall be deemed to be a sale for charitable purposes unless more than seventy-five percent of the gross proceeds of the sale are donated to a recognized charity, or charitable institution, and no auction sale shall be deemed to be a sale for charitable purposes unless approved as such by the director of finance of the city of Duarte.

(Ord. 72 § 4(c), 1960)

Nothing herein contained shall be construed as requiring any fee of any public officer who, in pursuance of his duty as such public officer, shall conduct within the city an auction sale pursuant to any law of the state of California or any of its subdivisions or of the United States of America.

(Ord. 72 § 5, 1960)

No auction sale for the sale of goods, wares, or merchandise or personal property shall be held in any residential district in the city of Duarte, and all auction sales, except for the sale of real property, are required to be held in the retail business district, commercial, business or manufacturing zones.

(Ord. 72 § 6, 1960)

Notwithstanding the provisions of Section 5.12.120, the city manager may grant a permit for an auction sale to be held in a residential district if such sale is occasioned by the fact that the occupant of the residential premises involved is moving permanently from such premises. Only goods, wares, merchandise or personal property belonging to such occupant, and which has been kept at such premises by such occupant in conjunction with his residence therein, shall be sold at such auction sale. The city manager may prescribe such additional terms and conditions for such permit as he may deem reasonable in conjunction with the granting of such permit.

(Ord. 438 § 1, 1978)

Every auctioneer and person selling goods, wares or merchandise at auction in the city of Duarte shall be deemed to warrant that all representations made in the course of such sale are true and correct, and that the purchase price of any article purchased will be returned to any purchaser upon proof satisfactory to the city council or any court that any false or misleading statement or representation has been made concerning the article or concerning the auction sale by the auctioneer or by any person managing or carrying on the auction sale.

(Ord. 72 § 7(a), 1960)

It shall be unlawful for any person to sell, dispose of, or offer for sale in the city of Duarte, at public auction, or cause or permit to be sold, disposed of, or offered for sale in the city of Duarte at public auction, any items of personal adornment made of or containing new or secondhand platinum, gold, new silver, or new plated ware, precious stones, or semiprecious stones, watches or other jewelry, whether the same shall be their property, or whether they shall sell the same as the agents or employees of others; provided, that the foregoing provisions of this section shall not apply to judicial sales or sales made by executors or administrators or sales made by or in behalf of licensed pawnbrokers or unredeemed pledges in the manner provided by law, not to the sale at public auction of the stock on hand of any person or persons who shall, for the period of one year next preceding such sale, have been continuously in business in the city of Duarte as a retail or wholesale merchant of platinum, silver, or plated ware, precious stones or semiprecious stones, watches or other jewelry; nor to the sale at public auction of such stock on hand of any person or persons as described above where the stock has been purchased by a holder of an auction house license under this chapter and is sold and announced as a part of such stock or merchandise not to a sale at public auction where the entire proceeds of such sale are given to a charity as approved by the director of finance of the city. No such sale except in an auction house shall be conducted between sunset and sunrise.

(Ord. 72 § 7(b), 1960)

It shall be unlawful for any person to offer for sale or sell either for himself or for another at public auction any jewelry or article of personal adornment unless there is securely attached to the article so offered for sale for sold, a tag, or card, or label bearing accurate reference to the source of such article, to the person or estate or dealer or manufacturer for whom the auctioneer is selling such article or from whom such article has been obtained for sale by the auctioneer. The auctioneer shall at the end of every twenty- four hours forward to the chief of police by mail or otherwise an itemized account of all sales of jewelry made by him for each twenty-four hour period correctly setting forth the source for which or from which each article was sold. This itemized statement shall be subscribed by the auctioneer conducting the sale and any false statements submitted by said auctioneer to the chief of police shall be sufficient cause for suspension or revocation of the permit or license of the auctioneer. The provisions of this section shall not apply to sales the entire proceeds from which go to a regularly organized charity approved by the director of finance of the city of Duarte.

(Ord. 72 § 7(c), 1960)

Whenever any person advertises as offering for sale at public auction any goods or articles other than jewelry from a designated or named estate or source, no person shall offer for sale such goods or articles, unless a tag, card, or label shall be securely attached to the goods or articles bearing accurate reference to the designated or named estate or source.

(Ord. 72 § 7(d), 1960)

It shall be the duty of every auctioneer each day at the beginning of such auction sale, to fully state the terms and conditions upon which the sale or sales will be made and when the buyer must settle for the article so purchased.

(Ord. 72 § 7(e); May 31, 1960)

It shall be the duty of the person whose merchandise is thus being sold at public auction and the auctioneer to give each and every purchaser of an article the selling price of which amounts to the sum of one dollar or more, an invoice, containing a full description of the article, the selling price thereof, together with a statement giving each and every warranty under which the article was sold. Duplicate copies of said invoices shall be kept.

(Ord. 72 § 7(f); May 31, 1960)

The provisions of Sections 5.12.130 to 5.12.200 shall not apply to an auction sale conducted solely for charitable purposes. No auction sale shall be deemed to be a sale for charitable purposes unless more than seventy-five percent of the gross proceeds of the sale are donated to a recognized charity or charitable institution, and no auction sale shall be deemed to be a sale for charitable purposes unless approved as such by the director of finance of the city of Duarte.

(Ord. 72 § 7(g); May 31, 1960)

On all sales or consignments of goods, wares, or merchandise to an auctioneer, or to an auction house, or to an auction gallery, payment in full shall be made to the seller or consignor after any sale of any such article upon demand or in any event within thirty days after payment therefor by the purchaser thereof. If the sale of any lot on consignment of goods, wares, or merchandise is extended over a period of time in excess of ten days, payment in full shall be made to the seller or consignor within thirty days from the sale of any item contained in the lot or consignment and payment therefor by the purchaser thereof.

(Ord. 72 § 7(h); May 31, 1960)

No auctioneer or person conducting, managing or carrying on any auction sale in the city of Duarte shall make any false or misleading statement or representation, either verbally or in writing, concerning the article sold or proposed to be sold at such sale or concerning the sale.

(Ord. 72 § 8(a); May 31, 1960)

No person carrying on or conducting, or assisting in carrying on or conducting an auction sale shall:

(a) Knowingly and intentionally make any statement which is false in any particular, or which has a tendency to mislead any person present, or to make any misrepresentation whatsoever or at all, as to the quality or quantity or character or present condition or value or cost or general selling price, whether new or secondhand, or partly so, of any property offered for disposal by auction sale.

(b) Have or employ or permit any person to be or take part in, or for any person to act as a capper or by-bidder, booster, or puffer, or to make any fictitious or fraudulent bid, or bid not made in good faith, or not intended to be consummated by a sale at any auction sale of property.

(c) Ring any bell or sound any other loud or noisy instrument for the purpose of attracting attention to any auction sale.

(d) Offer or attempt to dispose of any property at any auction sale in blind packages or any property not at the time actually exhibited to public view, or to the view of the person bidding on the same, except that property which is specifically permitted to be sold by statute of the state of California.

(e) Offer or attempt to dispose of goods, wares, or merchandise at an auction sale between sunset and sunrise, unless such goods, wares or merchandise have been on display during the daylight business hours within ten days preceding such sale or unless such goods, wares or merchandise are displayed upon request.

(f) Refuse, fail or neglect to deliver complete and immediate possession to the purchaser of any property upon the payment of the purchase price thereon, at the conclusion of such auction sale.

(g) Substitute any article in lieu of the article offered to and purchased by the bidder, except with the bidder's knowledge and consent.

(h) Sell or offer for sale at public auction any property whatsoever without having a valid and unrevoked license therefor, as required by this chapter.

(Ord. 72 § 8(b); May 31, 1960)

No auctioneer or person conducting, managing or carrying on an auction sale in the city of Duarte shall use any person as a false bidder for the purpose of increasing the price of any article offered for sale at said auction. No person shall make a false bid or any other than a bona fide bid at any auction sale.

No auctioneer or person carrying on or conducting or assisting in carrying on or conducting an auction sale shall have or employ or permit any person to be or take part in, or act as a capper, or by-bidder or booster, or puffer, or make any fictitious or fraudulent bid or bid not made in good faith or not intended to be consummated by a sale at any auction sale of property.

(Ord. 72 § 9; May 31, 1960)

No person shall sell, offer for sale, expose for sale or solicit offers to purchase any jewelry, watches, clocks, binoculars, optical instruments, cameras, luggage, leather goods, cigarette cases, plastic goods, imitation leather goods, compacts, mechanical pens and pencils, precious stones, semiprecious stones, gold, silver, platinum or plated ware, by public outcry addressed collectively to a group of three or more persons assembled for the purpose of conducting sales of any of the aforesaid articles in any enclosed store or premises in the city of Duarte without first obtaining a permit from the director of finance. No person shall merchandise any of the aforesaid articles by means of public outcry on any of the streets or sidewalks of the city and the director of finance shall not issue a license for such purpose.

(Ord. 72 § 10; May 31, 1960)

Without limiting the generality of the term "merchandising by public outcry," such activity shall include selling, exposing for sale, offering for sale or soliciting purchasers by means of audible solicitation addressed collectively to a group of three or more persons, which group has been assembled for the purpose of merchandising any of the articles set forth in Section 5.12.240.

(Ord. 72 § 11, 1960)

Before receiving or acting upon any application for the granting of a permit to merchandise by means of public outcry any of the personal property described in Section 5.12.240, the director of finance shall require the following:

(a) FEE. The payment an application fee established by resolution of the city council.

(b) FIXED PLACE. An application filed by the applicant showing that the applicant is to conduct his merchandising by public outcry activities at a fixed address.

(c) SIGNATURE. Said application for a permit must be signed by the applicant. If the applicant is a partnership, it must be signed by all members of the partnership; if applicant is a corporation, it must be signed by a duly authorized officer on behalf of the corporation. Where the applicant is a corporation or a partnership, the application must contain the names and addresses of all the corporation officers, or the partners, as the case may be.

(d) VERIFICATION. The application shall be verified by the applicant. If the applicant is a partnership, the application must be verified by a partner; if the applicant is a corporation, it shall be verified by one of the officers.

(e) PUBLICATION. The application shall be published one day a week for four consecutive weeks in a newspaper of general circulation in the city of Duarte.

(f) NOTICE. The applicant shall cause to be posted a notice of intention to merchandise any or all of the articles mentioned in Section 5.12.240 by means of public outcry on the premises for which application for a permit is sought for a period of thirty days prior to issuance of any permit. The notice shall be posted in two conspicuous places on the premises so as to be visible from the sidewalk for a distance of at least fifty feet therefrom.

(g) BOND. Every applicant at the time of making application and every person who has heretofore been engaged and hereafter engages in merchandising by public outcry any or all personal property mentioned in Section 5.12.240 shall file, within thirty days hereafter, and thereafter maintain, a bond in the sum of five thousand dollars, which bond shall run to the city of Duarte and to any person who shall sustain any injury covered by the bond. Such bond shall be executed by the person seeking the permit hereunder as principal and by a corporation which is licensed by the insurance commissioner of this state to transact the business of fidelity and surety insurance as surety or in lieu of the surety corporation bond, applicant may deposit either five thousand dollars in cash or United States Government bonds of the current market value in the sum of five thousand dollars. The bond shall be conditioned that the principal will indemnify any and all persons for any loss suffered by the misrepresentation of the principal as to the quality of worth of the goods offered for sale, lack of title to any of the goods, breach of warranty of the merchantability or quality of any of the goods sold, or for falsely representing that the goods sold were part of stock in trade damaged by fire or the closing out of stock in trade of applicant or some other person. The bond shall furthermore be conditioned that the obligor herein will conform to and abide by the provisions of this chapter regulating merchandising by public outcry. The bond shall not be void on the first recovery, but may be sued and recovered on from time to time by any persons aggrieved until the whole penalty is exhausted. Such bond shall remain in full force and effect until the permit of the principal is revoked or until the bond is canceled by the surety. The surety may cancel said bond and be relieved of further liability for causes of action arising thereafter by giving fifteen days written notice to the director of finance and to the obligor at his last known place of business. The total aggregate liability on said bond shall be limited to five thousand dollars. Any person who sustains an injury covered by said bond may, in addition to any other remedy that he may have, bring an action in his own name on the bond for the recovery of any damage sustained by him; provided, however, that no such action may be brought and maintained after the expiration of one year from the time of the occurrence of any such alleged dishonest act or breach or condition of the bond.

(h) REFERENCES. Such application shall be accompanied by the signature of three resident freeholders certifying to the good moral character and reputation of the applicant and of the person or persons making application.

(i) FINGERPRINTING. At the time of filing such application, the applicant and all persons directly or indirectly interested in the permit if granted, including the members of any firm or copartner and the officers of any corporation, shall be fingerprinted by the police department.

(j) PRIOR CONVICTIONS. If any such person shall be found to have a prior criminal record of committing any felony, theft, obtaining money or property by false pretense, embezzlement or violating any of the provisions of this chapter or any other law regulating merchandise by public outcry, the application for such permit shall be denied.

(Ord. 781 § 1 (part), 2006; Ord. 71 § 12, 1960)

Upon receipt of the application as provided in Section 5.12.260, the director of finance shall forward the same to the chief of police who shall investigate the character and business of the applicant and the location at which the applicant proposes to engage in the business as stated in the application. Upon compliance with the requirements set forth in Section 5.12.260, the director of finance may issue a permit for expiration one year from the date of issuance; provided, however, that no permit may be issued to any applicant not of good character, good reputation and moral integrity, nor to any applicant proposing to conduct his business within a district not so permitted by the general zoning ordinance. The director of finance in his discretion may refuse to issue a permit to any person, who has heretofore violated any provisions of this chapter regulating merchandising by public outcry, or to any applicant under charge thereof. Notwithstanding such discretion in the director of finance, where a revocation of permit has occurred, the director of finance may not grant a new permit to any such permittee for a period of two years following such revocation.

(Ord. 72 § 13, 1960)

In the event that the bond filed in accordance with Section 5.12.260 shall be cancelled by the surety thereon, the obligor in whose favor such bond was filed shall, at any time within ten days after notice of such cancellation file a new bond, and if such new bond is not filed within such period of ten days, the permit shall be terminated as of the date of cancellation of the bond and be revoked thereupon without the requirement of action on the part of the director of finance or otherwise.

(Ord. 72 § 14, 1960)

The applicant from and after the granting of a permit to merchandise by public outcry shall at all times maintain an inventory of his stock in trade together with an itemization of cost price. On or before the tenth day of each and every third successive month following the granting of the permit, the applicant shall forward to the chief of police by registered mail, return receipt requested or by personal service thereof, an itemized inventory of the stock in trade of the permittee as it existed on the first day of the month, together with an itemization of purchases made by the permittee for the three-month period preceding said inventory and the cost of the article purchased. This itemized statement shall be subscribed by the permittee himself if permittee is an individual; by a general partner, if permittee is a copartnership, or by one of its officers if permittee is a corporation. The parties subscribing the itemized statements must make and subscribe an oath to be attached thereto that the itemized statement contains a true and itemized account of the articles together with their cost, constituting the inventory of the permittee as of the date mentioned and in addition a true statement of the purchases and their cost of articles, added to permittee's stock in trade for the month preceding the date of inventory.

(Ord. 72 § 15; May 31, 1960)

No person merchandising by means of public outcry any of the articles mentioned in Section 5.12.240 shall grossly misrepresent the quality or worth of the articles offered for sale, or falsely represent that the goods offered for sale are part of the stock in trade damaged by fire or closing out stock in trade of permittee or some other person.

(Ord. 72 § 16; May 31, 1960)

Every person engaged in the business of merchandising by public outcry any of the articles listed in Section 5.12.240 shall pay a license fee in the sum of five hundred dollars per year payable in advance from date of issuance of the permit to the director of finance of the city of Duarte. License fees paid under the provisions of this section shall not be prorated or refunded.

(Ord. 72 § 17; May 31, 1960)

Provisions of Sections 5.12.240 through 5.12.310 inclusive, shall not apply to duly licensed auctioneers or to sales made pursuant to requirements of court order or any law.

(Ord. 72 § 17; May 31, 1960)