Duarte Municipal Code Ch. 5.28 Closing Out Sales, Etc

For the purpose of this chapter only the following words and terms shall be deemed to mean and be construed as follows:

CLOSING OUT SALE.

The phrase "closing out sale" shall mean:

(a) Any sale of, or any offer to sell, to the public, or any group thereof, merchandise on order, in transit or in stock, in connection with a declared purpose as set forth by advertising that such sale is anticipatory of or to avoid the termination, liquidation, revision, 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

(b) All sales advertised to be "adjuster's sale," "adjustment sale," "assignee's sale," "bankrupt sale," "benefit of administrator's sale," "benefit of creditor's sale," "benefit of trustee's sale," "building coming down sale," "closing out sale," "creditors committee sale," "creditor's 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," "liquidation sale," "loss of lease sale," "mortgage sale," "outselling sale," "receiver's 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

(c) All sales advertised in a manner calculated 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

(d) All sales accompanied by notices or advertising indicating that the premises are available for purchase or lease or are otherwise to be vacated; and

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

ADVERTISE, ETC. The terms "advertise," "advertisement," "advertising," "published," "publication," shall mean 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 display, billboard display, poster and radio announcement.

FAKE SALE. The term "fake sale" shall mean any one of the following:

(a) The sale of goods, wares or merchandise at auction or otherwise to agents or other persons purchasing the same for or on behalf of the owner or other person interested in the selling thereof.

(b) The offering for sale of goods, wares or merchandise of a different quality, brand, or bearing a different trademark than the merchandise previously advertised for sale.

(c) The sale of any goods, wares, or merchandise misrepresented as to quantity or quality or otherwise.

(d) The sale or offering for sale of any goods, wares, or merchandise transported or brought into the city of Duarte, and not constituting the original legitimate stock of goods, wares and merchandise of a place of business within the city, as the legitimate stock of goods, wares and merchandise of such place of business, at a closing out sale as herein defined.

Nothing herein shall be deemed to prevent, nor shall it be considered unlawful to sell the existing stock of goods, wares and merchandise of any place of business at a closing out sale, but the bringing of a new stock into any such place of business or the adding of new stock to such existing stock of goods, wares and merchandise and selling or offering to sell such new stock or added stock of such goods, wares, and merchandise at said place of business at a closing out sale, is hereby declared unlawful and to be a fake sale within the meaning thereof.

PERMIT. The term "permit" shall mean a permit issued pursuant to this chapter.

PERMITTEE. The term "permittee" shall mean any person to whom a permit has been issued pursuant to this chapter.

PROFESSIONAL SALES PROMOTER. The term "professional sales promoter" shall mean any person who for pecuniary compensation or consideration received, or to be received conducts, manages or carries on or is engaged in the business of or holds himself out as engaged in the business of conducting, managing or carrying on special sales promotion campaigns for the sale of goods, wares or merchandise including but not limited to closing out sales as defined in this chapter, half-price sales, clearance sales, drastic reduction sales, and the like; provided, however, that pecuniary compensation or consideration as used herein, shall include, but shall not be limited to, participation on a percentage basis in the proceeds of any such sale.

(Ord. 72 § 57; May 31, 1960)

It shall be unlawful for any person to advertise or otherwise represent to the public, in any manner whatsoever, a reduction in the price of any goods, wares, merchandise, service, facility, or accommodation of whatsoever kind offered to the public, whether such price reduction is represented in complete price figures or by percentage of reduction under a previous price where the reduction is not based upon a price customarily charged by other vendors in the community for the articles or services so offered to the public.

(Ord. 72 § 58; May 31, 1960)

It shall be unlawful for any person to advertise or conduct a closing out sale as herein defined without first obtaining a permit therefor from the director of finance of the city of Duarte in the manner hereinafter provided.

(Ord. 72 § 59; May 31, 1960)

The provisions of this chapter are intended to augment and be in addition to the provisions of the city ordinances providing for a business license tax. Whenever the provisions of this chapter impose a greater restriction upon persons, premises or practices than is imposed by the general business license regulations, the provisions of this chapter shall control.

(Ord. 72 § 60(a); May 31, 1960)

Any person who has held a sale, as regulated under the provisions of this chapter, at the location stated in the application, within one year last past from the date of such application shall not be granted a permit.

(Ord. 72 § 60(b), 1960)

Where a person applying for a permit under the provisions of this chapter operates more than one place of business the permit issued shall apply only to the one store, or branch specified in the application and no other store or branch shall advertise or represent that it is cooperating with it, or in any way participating in such sale, nor shall the store or branch conducting such sale advertise or represent that any other store or branch is cooperating with it or participating in any such sale.

(Ord. 72 § 60(c), 1960)

The provisions of this chapter shall not apply to or affect the following persons:

(a) Persons acting pursuant to an order or process of a court of competent jurisdiction.

(b) Persons acting in accordance with their powers and duties as public officials.

(c) Duly licensed auctioneers, selling at auction.

(d) Any publisher of a newspaper, magazine or other publication, who publishes in good faith, any advertisement, without knowledge of its false, deceptive or misleading character, or without knowledge that the provisions of this chapter have not been complied with.

(Ord. 72 § 60(d), 1960)

(a) WRITTEN INFORMATION REQUIRED. A person desiring to conduct a sale regulated by this chapter shall make a written application to the director of finance setting forth and containing the following information:

(1) The true name and address of the owner of the goods to be the object of the sale.

(2) The true name and address of the person from whom he purchased the goods to be sold and the price therefor, and if not purchased, the manner of such acquisition.

(3) The address of the place where such sale is to be held.

(4) The nature of the occupancy, whether by lease or sublease and the effective date of termination of such occupancy.

(5) The dates of the period of time in which the sale is to be conducted.

(6) A full and complete statement of the facts in regard to the sale, including the reason for the urgent and expeditious disposal of goods thereby and the manner in which the sale will be conducted.

(7) The means to be employed in advertising such sale together with the proposed content of any advertisement.

(8) An itemized stock list of inventory of the goods, wares, and merchandise to be offered for sale, together with the cost at which the goods, wares and merchandise was obtained by the owner thereof, or person conducting such sale. All goods, wares and merchandise listed upon the inventory herein required shall be so described in detail by 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.

(b) BONA FIDE ORDERS. All goods included in the inventory shall have been purchased by the applicant for resale on bona fide orders without cancellation privileges and shall not comprise goods purchased on consignment.

(c) RECENTLY PURCHASED GOODS. The inventory shall not include goods ordered in contemplation of conducting a sale regulated under the provisions of this chapter. Any unusual purchase, or additions to the stock of goods of the business hereby affected within thirty days before the filing of an application hereunder shall be deemed to be of such character.

(d) PROPERTY VALUATION. Personal property valuation for personal property tax purposes during the three taxable years preceding the date of the application shall be shown.

(e) STOCK PURCHASE PLACE. The place where such stock was purchased or acquired, and if not purchased, the manner of such acquisition, and in the case of stock placed upon the premises within thirty days prior to such sale, the time of acquisition of such stock shall be shown.

(f) NAME OF OWNER. The name of the owner of the goods, wares and merchandise to be offered for sale; and if the sale is to be conducted by a person not the owner of the goods, then the name of the person conducting such sale shall be shown.

(g) ADVANCE FILING. The application must be filed at least thirty days in advance of the beginning of the sale.

(h) GOODS ORDERED AFTER FILING. No goods or merchandise ordered subsequent to the date of filing of the application shall be offered for sale at any sale regulated hereunder. All goods or merchandise on order on the date of the filing of the application shall be canceled to the extent that the applicant has the contractual right to do so.

(Ord. 72 § 61, as amended by Ord. 84; May 22, 1961)

Upon the filing of the application, the director of finance may make or cause to be made an examination, audit or investigation of the applicant and his affairs in relation to the proposed sale. If the director of finance finds that the statements in the application are true, that the inventory is complete, that the advertising set forth is not false, fraudulent, deceptive, or misleading in any respect and that the methods to be used by the applicant in conducting the sale are not such as, in the opinion of the director of finance, will work a fraud upon the purchasers, the director of finance shall approve the issuance to the applicant of a permit to conduct such sale in accordance with the provisions of this chapter otherwise the director of finance shall recommend denial of the application. The director of finance may refuse a permit because of the insufficiency of the information set forth in the application, but in such event the director of finance shall grant the applicant permission to file an amended application.

No permit may be issued to any applicant not of good character, good reputation and moral integrity. The director of finance may further refuse to issue a permit to any person who has heretofore violated any provisions of this chapter. Upon approval the director of finance shall issue a permit.

(Ord. 72 § 62, 1960)

Any applicant for a permit under the provisions of this chapter shall submit to the director of finance with his application a permit fee established by resolution of the city council, together with a corporate surety bond, payable to the city in the penal sum of one thousand dollars, conditioned upon the compliance with the provisions of this chapter.

(Ord. 781 § 1 (part), 2006; Ord. 443 § 12, 1978: Ord. 72 § 63, 1960)

A permit shall be issued under the provisions of this chapter on the following terms:

(a) PERMIT PERIOD—RENEWAL. The permit shall authorize the sale described in the application for a period of not more than thirty consecutive days; provided, however, that the director of finance may, upon application therefor, accompanied by a renewal fee of one hundred dollars, renew the permit once for a period of not to exceed thirty days. Such application for renewal shall set forth a complete list of goods listed in the original application and remaining unsold, and shall not contain any goods, wares or merchandise not named in such original application. Upon receipt of such application for renewal the director of finance shall cause an investigation to be made at once, and if satisfied of the truth of the statements therein contained, shall grant such renewal.

(b) NATURE OF SALE. The permit shall authorize only the one type of sale described in the application at the location named therein.

(c) SALEABLE GOODS. The permit shall authorize only the sale of goods described in the inventory attached to the application.

(d) NONTRANSFERABILITY. Any permit herein provided for shall not be assignable or transferable.

(Ord. 72 § 64, 1960)

A permittee shall:

(a) Adhere to Inventory. Make no additions whatsoever during the period of such sale, to the stock of goods set forth in the inventory attached to the application for the permit.

(b) Address Properly. Refrain from employing any untrue, deceptive or misleading advertising.

(c) Adhere to Advertising. Conduct such sale in strict conformity with any advertising or holding out incident thereto.

(d) Keep Duplicate Inventory. Keep available at the place of sale a duplicate copy of the inventory submitted with the application and shall present such duplicate to inspecting officials upon request.

(e) Segregate Noninventoried Goods. Keep any other goods separate and apart from the goods listed in the filed inventory as being objects of sale and shall make such distinction clear to the public by placing tags on all inventoried goods in and about the place of sale appraising the public of the status of all such goods.

(f) Revised Daily Inventory. At the close of business each day the stock inventory shall be revised and items on such list disposed of during such day shall be noted thereon. Suitable books and records shall be kept by the permittee and shall be open at all times to inspection by the director of finance or his authorized representatives.

(g) Hours of Sale. Conduct the closing out sale for which a permit has been issued only between the hours of eight a.m. and nine-thirty p.m.

(Ord. 72 § 65, 1960)

No goods, wares or merchandise shall be permitted to be offered for sale at the place of business where such sale is to be conducted other than those items listed in the inventory filed with the application for the permit.

(Ord. 72 § 66, 1960)

The director of finance shall at all times have the power to make an examination or investigation of the business and the books, records and accounts, and other papers pertaining thereto, of any person theretofore permitted or authorized to conduct a sale regulated by the provisions of this chapter.

(Ord. 72 § 67, 1960)

The director of finance shall have the power to revoke at any time any permit granted to accordance with the provisions of 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 a manner as to conceive or defraud the public, or if:

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

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

(c) He 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;

(d) He has added, caused to be added, or permitted to be added any goods, wares or merchandise not described in the original inventory;

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

(Ord. 72 § 68, 1960)

It shall be unlawful for any person to engage in the business of a professional sales promoter as herein defined in the city of Duarte without first obtaining a license therefor from the director of finance in the manner provided in Sections 5.28.170 through 5.28.210.

(Ord. 72 § 69, 1960)

Any person desiring to engage in the business of professional sales promoter in the city shall make a written application to the director of finance setting forth and containing the following information:

(a) The true name and address of the applicant;

(b) A succinct statement of facts showing that the applicant, if not a corporation or an unincorporated firm, association or partnership is of good character and reputation, or if the applicant be a corporation that each of its managing officers and agents is of good character and reputation, or if the applicant be an unincorporated association, firm or partnership, that each of its members is of good character and reputation;

(c) The name and address of the person by whom the applicant will be employed or in whose behalf the applicant will conduct such sales promotion together with the dates or times during which such sales will be conducted and a description of the merchandise to be sold.

(Ord. 72 § 70, 1960)

At the time of filing with the director of finance an application for a license, the applicant shall file and thereafter maintain with the director of finance a good and sufficient bond in the sum of one thousand dollars running to the city executed by the applicant and a surety company authorized to do business in the state of California, to be approved by the city attorney. Said bond shall be conditional upon the strict compliance by the principal with the provisions of this chapter.

(Ord. 72 § 71, 1960)

Any applicant for a professional sales promoter's license shall submit to the director of finance with his application a fee of five hundred dollars.

(Ord. 72 § 72, 1960)

Upon receipt of an application for a license to do business as a professional sales promoter, the director of finance shall make such investigation of the applicant and its or his affairs as he shall deem advisable. If from such investigation the director of finance shall be satisfied that the applicant is of good character, reputation and moral integrity, or that every managing officer or agent of the applicant, if the applicant is a corporation, is of good character, reputation and moral integrity, or if the applicant is an unincorporated association, firm or partnership, each member thereof is of good character, reputation and moral integrity, he shall issue a license. Otherwise, the director of finance shall recommend denial of the application and he shall refuse to issue a license.

(Ord. 72 § 73, 1960)

All licenses issued under the provision of this chapter shall be subject to the condition that all advertising, signs or publications issued or published or employed in conjunction with any sale promoted by the permittee, shall clearly, exactly and specifically state that such sale is under the direction of and is being promoted by the permittee, stating his full name as "professional sales promoter under license from the city of Duarte." Such statement shall be in type not smaller than one-third the size of the type used for the name of the person, firm or corporation selling the goods, wares or merchandise offered for sale.

(Ord. 72 § 74, 1960)