Kern County Municipal Code Ch. 5.40 Going-Out-of-Business Sales

For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given in this section. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory, and the word "may" is permissive.

A. "County" means the county of Kern.

B. "License collector" means the sheriff of the county of Kern.

C. "Fire and other altered goods sale" means a sale held out in such a manner as to reasonably cause the public to believe that the sale will offer goods damaged or altered by fire, smoke, water or other means.

D. "Going-out-of-business sale" means a sale held out in such a manner as reasonably to cause the public to believe that, upon the disposal of the stock of goods on hand in a business, the business will cease and be discontinued, or to believe that upon the disposal of the stock of goods on hand in any one (1) or more departments the sale of goods of the kind included in such stock in said department or departments will cease and be discontinued, including but not limited to the following sales: adjuster's; adjustment; assignee's; bankrupt; benefit of administrator's; benefit of creditors; benefit of trustees; building coming down; closing; closing out; creditors' committee; creditors'; end; executor's; final days; forced out; forced out of business; insolvents'; last days; lease expires; liquidation; loss of lease; mortgage sale; receiver's; trustee's; quitting business; and all sales accompanied by notices or advertising indicating the premises are available for purchase or lease or are otherwise to be vacated, and sales accompanied by advertising indicating an emergency or failure affecting the seller or previous owner of goods to be sold.

E. "Goods" means "goods" as defined in Section 2105 of the Uniform Commercial Code as enacted in the state of California.

F. "Person" means any person, firm, partnership, association, corporation, company or organization of any kind.

G. "Removal of business sale" means a sale held out in such a manner as reasonably to cause the public to believe that the person conducting the sale will cease and discontinue business at the place of sale upon disposal of the stock of goods on hand and will then move to and resume business at a new location in the county or will then continue business from other existing locations in the county.

(Ord. G-5837 § 19, 1992; prior code § 6655)

A license issued by the license collector shall be obtained by any person before selling or offering to sell any goods at a sale to be advertised or held out by any means to be one of the following kinds:

A. Going-out-of-business sale;

B. Removal of business sale; or

C. Fire and other altered stock sale.

(Prior code § 6655.1)

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. Persons conducting a sale of the type regulated herein on the effective date of the ordinance codified in this chapter, unless such sale is continued for a period of more than thirty (30) days from and after such effective date, in which event such person, at the lapse of the said thirty (30) day period, shall comply with the provisions of this chapter;

E. 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.

(Prior code § 6655.2(e))

The provisions of this chapter are intended to augment and be in addition to the provisions of other licensing ordinances of the county. Where this chapter imposes a greater restriction upon persons, premises, businesses or practices than is imposed by any other licensing ordinance of the county, this chapter shall control.

(Prior code § 6655.2(a))

A. Any person who has not been the owner of a business advertised or described in the application for a license hereunder for a period of at least four (4) months prior to the date of the proposed sale shall not be granted a license.

B. Exception for Survivors of Businessmen. Upon the death of a person doing business in the county his or her heirs, devisees or legatees shall have the right to apply at any time for a license under this chapter.

(Prior code § 6655.2(b))

Any person who has held a sale, as regulated under this chapter, at the location stated in the application, within one (1) year last past from the date of such application, shall not be granted a license.

(Prior code § 6655.2(c))

Where a person applying for a license under this chapter operates more than one (1) place of business the license issued shall apply only to the one (1) 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 the licensed sale; nor shall the store or branch conducting the licensed sale advertise or represent that any other store or branch is cooperating with it or participating in any way in the licensed sale.

(Prior code § 6655.2(d))

A person desiring to conduct a sale regulated by this chapter shall make a written application to the license collector setting forth and containing the following information:

A. The true name and address of the owner of the goods to be the object of the sale;

B. 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;

C. A description of the place where such sale is to be held;

D. The nature of the occupancy, whether by lease or sublease, and the effective date of termination of such occupancy;

E. The dates of the period of time in which the sale is to be conducted;

F. 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;

G. The means to be employed in advertising such sale together with the proposed content of any advertisement;

H. A complete and detailed inventory of the goods to be sold at such sale as disclosed by the applicant's records. Said inventory shall be attached to and become part of the required application.

1. Bona Fide Orders. All goods included in such 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.

2. Goods Purchased for Sale Hereunder. Such inventory shall not include goods ordered in contemplation of conducting a sale regulated hereunder. Any additions to the stock of goods of the business hereby affected within sixty (60) days before the filing of an application hereunder shall be mentioned by applicant as part of his application, and said application shall set forth the reasons why such additions were made.

(Prior code § 6655.3(a))

Each applicant for a license under this chapter shall submit to the license collector with his application a license fee in an amount equal to five dollars ($5.00) for each and every day for which said license is to be in effect, as computed by reference to such application under Section 5.40.080(E) of this chapter, with a minimum fee for each license application in the amount of forty dollars ($40.00). Each applicant for renewal license under this chapter shall submit to the license collector with his renewal application a renewal license fee in the amount of fifteen dollars ($15.00) for each and every day for which said renewal license is to be in effect, as computed by such application for renewal under Section 5.40.110(A)(1) of this chapter.

(Prior code § 6655.3(b))

Each applicant for a license or renewal license under this chapter shall submit to the license collector with his application for license and renewal license, respectively, a bond conditioned upon the faithful performance of all duties placed upon licensees by this chapter. Said bond shall be in cash or in the form of a bond issued by a corporate surety licensed to do business in the state of California, and shall be in an amount determined as follows: ten percent (10%) of the first twenty-five thousand dollars ($25,000.00) of the inventory cost of the goods to be offered for sale under said license, plus five percent (5%) of the inventory cost of the goods of a value in excess of twenty-five thousand dollars ($25,000.00) but not exceeding one hundred thousand dollars ($100,000.00) to be offered for sale under said license, plus two percent (2%) of the inventory cost of all goods of a value exceeding one hundred thousand dollars ($100,000.00) to be offered for sale under said license.

(Prior code § 6655.3(c))

A license shall be issued hereunder on the following terms:

A. Licensing Period. The license shall authorize the sale described in the application for a period of not more than ninety (90) consecutive days, legal holidays excluded, following the issuance thereof.

1. Renewal Procedure. The license collector shall renew a license for one (1) period of time only, such period to be in addition to the ninety (90) days permitted in the original license and not to exceed thirty (30) consecutive days, legal holidays excluded, when he finds:

a. That the licensee has filed an application for renewal;

b. That the licensee has submitted with the application for renewal a revised inventory showing the items listed on the original inventory remaining unsold and not listing any goods not included in the original application and inventory;

c. For the purposes of this subsection, any application for a license under the provisions of this chapter covering any goods previously inventoried as required hereunder, shall be deemed to be an application for renewal, whether presented by the original applicant or by any other person.

B. Nature of Sale. The license shall authorize only the one (1) type of sale described in the application at the location named therein.

C. Saleable Goods. The license shall authorize only the sale of goods described in the inventory attached to the application.

D. Surrender of General License. Upon being issued a license under this chapter for a going-out-of-business sale, the licensee shall surrender to the license collector all other county business licenses he may hold at that time applicable to the location and goods covered by the application for a license under this chapter.

E. Nontransferability. Any license herein provided for shall not be assignable or transferable.

(Prior code § 6655.4)

A. Upon receipt of an application for a license or an application for a renewal license, the license collector may cause to be made such investigation of the facts contained therein as may, in the discretion of the license collector, be deemed necessary or desirable in the enforcement of this chapter and other licensing ordinances.

B. Each licensee under a license or a renewal license shall be deemed, by acceptance of such license, to have consented to reasonable inspections during the conduct of the sale permitted by any license issued pursuant to this chapter; such inspections, if any, shall be in addition to investigations permitted under subsection A of this section. Such inspections may be of the premises, goods and records of such licensee, may be conducted on more than one (1) occasion, and may be conducted only by the license collector or his agent, or other qualified person or persons designated by order of the board of supervisors.

(Prior code § 6655.6)

A. A licensee hereunder shall:

1. Adhere to Inventory. Make no additions whatsoever, during the period of the licensed sale, to the stock of goods set forth in the inventory attached to the application for license;

2. Advertise Properly. Refrain from employing any untrue, deceptive or misleading advertising. All visual advertising shall include, in a conspicuous manner, the number of the license under which the sale is being conducted together with the expiration date thereof;

3. Adhere to Advertising. Conduct the licensed sale in strict conformity with any advertising or holding out incident thereto;

4. Keep Duplicate Inventory. Keep available at the place of sale a duplicate copy of the inventory submitted with the application, and present such duplicate to inspecting officials upon request;

5. Segregate Non-inventoried 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 apprising the public of the status of all such goods.

B. A licensee under this chapter shall immediately notify the license collector of any additions to inventory which occur during the period a license under this chapter is in effect, whether such additions occur as a result of inadvertence, act or omission of the licensee or other person, or in any other manner.

(Prior code § 6655.5)

Violation of any provision of this chapter is a misdemeanor, and shall be punishable by a fine not exceeding five hundred dollars ($500.00), or by imprisonment in the county jail for a period not exceeding six (6) months, or by both such fine and imprisonment.

(Prior code § 6655.7)