Los Banos Municipal Code Ch. 2 Auction Sales

For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:

"Auctioneer"

shall mean every person who shall offer for sale in the City at public auction, either as principal or agent, to the highest bidder on the spot any article of merchandise or property except livestock, farm produce, and used farm machinery.

"Itinerant merchant or itinerant vendor of goods"

shall mean a person, whether as principal or agent, who engages in a temporary or transient business in the City selling goods, wares, and merchandise and who, for such purpose, leases or occupies a room, store buildings, structure, or place in the City for the exhibition or sale of such goods, wares, and merchandise, and such person shall not escape the payment of a higher license tax by temporarily associating him or herself with any local merchant, dealer, or tradesman or by conducting such temporary or transient business in connection with, or as a part of, or in the name of any local dealer, merchant, or auctioneer.

"Sale by public auction",

without limiting the generality of the term, shall mean and include a sale in which, instead of the bidders making increasingly higher bids for articles of merchandise, the seller or auctioneer announces a price at which he or she will sell one or more articles of merchandise and then, if no sale occurs, increasingly adds additional articles of merchandise to those originally offered, with or without varying the previously announced price, until a buyer is finally induced to buy the accumulated articles at the price fixed.

(§§ 1, 4 (b), and 12, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

No person shall advertise for sale, sell, dispose of, or offer for sale at public auction, or cause or permit to be advertised, offered for sale, sold, or disposed of at public auction, any goods, wares, or merchandise, whether the same shall be their own property or the property of someone else, without first complying with the provisions of this chapter and obtaining the licenses provided for in Section 11-2.07 of this chapter.

(§ 1, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

Any person desiring to conduct or hold an auction sale shall make an application therefor to the City Clerk. Such application shall set forth the following information:

(a) The time during each day and the number of days, weeks, or months the applicant desires to hold or conduct such auction;

(b) The full name of the applicant and his or her residence address and the names of all persons interested in the conduct or holding of the auction;

(c) The name of the auctioneer;

(d) The place where the auction shall be held;

(e) The length of time for which the permit is desired;

(f) Whether the applicant has been previously engaged in a like or similar business and, if so, the places where he or she has previously conducted such auction sales; and

(g) Such other information as the City Clerk shall deem reasonable and necessary to establish the truth of each and all such statements.

(§ 2, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

The application for a permit to conduct or hold an auction sale shall have attached thereto a complete inventory of all goods to be sold at the auction. Such inventory shall show whether or not the goods are owned by the applicant or are being sold by him or her on consignment, designating particularly the consigned goods. The inventory shall also set forth the grade, quality, kind, and cost price of each article. There shall also be attached to such application an affidavit stating that all of the statements contained in the application and in the inventory are true and correct. If the applicant shall be a corporation, the affidavit may be made by the president, general manager, secretary, or treasurer of the corporation.

(§ 2, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

The application for a permit to conduct or hold an auction sale shall be filed with the City Clerk, and, if the statements therein contained are found to be true and the required license fees have been paid, the City Clerk shall issue to the applicant a permit for the length of time designated, not to exceed, however, a period of three months.

(§ 2, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

No person in the City shall conduct a sale by public auction, as defined in Section 11-2.01 of this chapter, until he or she shall have first obtained an auctioneer's license from the City Clerk.

(§ 4 (a), Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

(a) Auctioneers. The license fee for any person conducting, carrying on, or managing the business of an auctioneer shall be Twenty-Five and No/100ths ($25.00) Dollars per quarter; provided, however, if the person by or for whom the auctioneering is done is an itinerant merchant or itinerant vendor of goods, wares, or merchandise, the license fee shall be Fifty and No/100ths ($50.00) Dollars per day. Any person who has received a license as an auctioneer shall not permit another person to conduct an auction under his or her license.

(b) Auction Sales. The license fee for every person conducting, carrying on, or managing an auction sale of goods, wares, merchandise, or real estate shall be Ten and No/100ths ($10.00) Dollars per day; provided, however, no license shall be required for an auction sale conducted pursuant to an order of any court or judge or under the authority of any mortgage or deed of trust.

(§ 4 (b) and (c), Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

(a) Suspension. The City Clerk shall have the authority to suspend any license and permit issued pursuant to the provisions of this chapter for violations of the provisions of this chapter. Such suspensions shall continue only during the pendency of the trial of the action for the violation alleged.

(b) Revocation. Each and every day a violation of the provisions of this chapter continues or occurs shall be deemed a separate offense, and, in the addition to the penalty set forth in Chapter 2 of Title 1 of this Code, the City Clerk, upon proof of the conviction of the applicant, shall revoke the license and permit under which an auction is being held. It shall thereafter be unlawful for any such person whose license and permit are so revoked to hold or conduct any auction sale unless he or she shall make an application and procure a new license and permit for such purpose.

(§ 9, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

(a) Compliance Required. No person, other than a licensed auctioneer who shall have complied with the provisions of this section, shall hold, conduct, carry on, or maintain any auction room or place for holding public auction sales, or advertise or hold him or herself out to the public as an auctioneer, or conduct, carry on, or maintain any sale of goods by public auction, bona fide or otherwise.

(b) Permits Required. No person shall engage in the calling of auctioneer in the City unless a permit therefor shall first have been procured from the Chief of Police. Any citizen of the United States and of the State of good moral character may become an auctioneer within the City and be authorized to sell real and personal property at public auction if such permit has been procured, and if such person has filed a bond pursuant to the provisions of subsection (c) of this section for the faithful performance of his or her duties, and on payment of the license tax set forth in Section 11-2.07 of this chapter. Such permit may be granted to a firm or corporation provided such firm or corporation shall designate a member of the firm or corporation as auctioneer who shall comply with the provisions of this section. The permit shall not be transferable, and it shall not be loaned or used by any other person except as set forth in this section.

(c) Bonds. The auctioneer's bond shall be in the sum of Five Thousand and No/100ths ($5,000.00) Dollars, shall be payable to the City, and shall be executed by a surety company authorized to transact a surety business in the State. The bond shall be approved by the City Attorney, shall be filed in the office of the City Clerk, and shall inure to the benefit of the City and any person aggrieved or damaged by any act of the auctioneer.

(d) Compliance with Filed Inventories. No person to whom an auctioneer's permit has been granted, or the auctioneer, or any other person shall sell or offer for sale any article not listed in the inventory, or sell or offer for sale any article listed in the inventory without first giving the City Clerk an opportunity to check the same against the inventory filed with the application, or make any representation concerning the quality or grade of the article contrary to that set forth in the inventory. The person to whom the permit is granted shall pay the City Twelve and No/100ths ($12.00) Dollars for each day, or fraction thereof, the representative of the City Clerk attends such sale.

(e) Employment of Criers. Any auctioneer may employ a crier at any sale; provided, however, the auctioneer shall be responsible for the acts of any person substituting for him or her, or any employee or crier, upon his or her bond.

(f) Invoices of Sales. It shall be the duty of the person whose merchandise is being sold at public auction to give each and every purchaser of an article, the selling price of which amounts to or exceeds Two and 50/100ths ($2.50) Dollars, an invoice containing a full description of the article and the selling price thereof, together with a statement giving each and every warranty under which the article was sold. Duplicate copies of such invoices shall be kept.

(g) Records. Each auctioneer shall keep a record book in which he or she shall enter all sales, the amount paid, and the date of each sale. Such record book shall be open at all times for inspection by members of the Police Department and any person interested therein.

(h) Violations: Penalties. For every violation of the provisions of this chapter, or of his or her duty as an auctioneer, such auctioneer shall forfeit to the City the sum of Two Hundred Fifty and No/100ths ($250.00) Dollars, which shall be recoverable upon his or her bond, in addition to any other penalty provided for violations of the provisions of this chapter. Any such fines shall be paid into the City Treasury for the use of the general fund.

In addition to the other penalties provided for the violation of any of the provisions of this section by any auctioneer, or by any other person with an auctioneer's knowledge and consent or connivance, the license of such auctioneer shall be revoked.

Any person aggrieved or damaged by any act of an auctioneer in the City in violation of or contrary to the provisions of this chapter may have an action against such auctioneer and his or her bondsmen upon his or her official bond therefor.

(§ 13, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

No person shall be permitted to have or sell at auction any goods, wares, or merchandise not listed or included in the inventory filed with the application for the permit to conduct or hold an auction sale; provided, however, such person, upon filing with the City Clerk a supplemental inventory in the same form as the original inventory, may sell such additional goods, wares, or merchandise as may be included in the supplemental inventory. Such supplemental inventories may be filed from time to time as desired.

(§ 3, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

(a) False Statements. No person acting as an auctioneer shall make any statements which are false in any particular or which have the tendency to mislead any person present, or make any misrepresentation whatsoever as to the quality, quantity, character, present condition, value, cost, general selling price, or whether the property is new or secondhand, or partly so, of any property offered for disposal by auction sale.

(b) Bankrupt and Damaged Stock. No person shall sell, or attempt to sell, by auction, or advertise for sale by auction, any goods, wares, or merchandise by falsely representing or pretending that such goods, wares, and merchandise are in whole or in part a bankrupt or insolvent stock, damaged goods, or goods saved from a fire, or make any false statement as to the previous history, ownership, quality, or character of such goods, wares, and merchandise.

(c) Substitutions. No person shall offer for sale at auction any article and induce its purchase by any bidder and afterwards substitute any article in lieu of that offered to and purchased by the bidder, except with the bidder's knowledge and consent.

(§ 5, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

No person shall act, or cause or induce anyone else to act, as a by-bidder or what is commonly known as a "capper," "booster," or "shiller" at any auction or place where any auction shall take place, or offer to make any false bid, or offer any false bid to buy, or pretend to buy, any article sold or offered for sale at any auction. It shall be the duty of the auctioneer to make some description of the person making a bid, and to point to or designate the position of the bidder on the premises, each time a bid is announced.

(§§ 6 and 7, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

It shall be the duty of the person whose merchandise is being sold at public auction to give each and every purchaser of an article, the selling price of which amounts to or exceeds Two and 50/100ths ($2.50) Dollars, an invoice containing a full description of the article and the selling price thereof, together with a statement giving each and every warranty under which the article was sold. Duplicate copies of such invoices shall be kept.

(§ 8, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

(a) Permits Required. No person shall sell, dispose of, or offer for sale at public auction, or cause or permit to be sold, disposed of, or offered for sale at public auction, any platinum, gold, silver, plated ware, precious stones, semi-precious stones, watches, or other jewelry, whether the same shall be his or her own property or whether he or she shall sell the same as an agent or employee of another, until a permit for such sale shall have first been obtained from the Council. Such sales shall be permitted only where a merchant is bona fide disposing of his or her stock for the purpose of retiring from business.

(b) Permits: Applications. Not less than 30 days nor more than 60 days prior to the commencement of any jewelry stock auction sale the merchant shall file with the City Clerk a sworn written application for a permit. The application shall set forth the following information:

(1) The place of the proposed sale;

(2) The date or dates on which the applicant desires to hold a jewelry auction; and

(3) The name of the auctioneer who will conduct the auction.

(c) Permits: Applications: Inventories. There shall be attached to the application, in duplicate, a detailed inventory, item by item, of the goods, wares, and merchandise to be sold, the wholesale value or cost to the applicant of each item, and the quality and grade thereof. Each item of merchandise shall be numbered separately in the inventory, and the number in the inventory shall correspond to the number physically attached to such item. Such inventory shall be accompanied by a statement, sworn to by the applicant, that all of the merchandise described in the inventory is a bona fide part of the applicant's stock in trade and was not secured, purchased, or brought into his or her place of business for, or in anticipation of, such sale; that no other merchandise will be brought into his or her place of business after the date of the filing of the application; that no merchandise will be sold or offered for sale which is not set forth in the inventory; and that each of the statements made in the inventory are true and correct to his or her own personal knowledge.

(d) Permits: Applications: Deposits. The application shall be accompanied by a cash deposit with the City Clerk in the amount of Five Hundred and No/100ths ($500.00) Dollars, which amount shall be retained as a penalty in the event of a violation by the applicant of any of the provisions of this chapter. Any such penalty shall be in addition to the penalties otherwise provided for violations of the provisions of this chapter.

(e) Permits: Applications: Investigations. Upon the receipt of an application for a jewelry auction permit, the City Clerk shall investigate and report to the Council his or her findings as to the character of the applicant and the auctioneer and the bona fide nature of the proposed sale. The City Clerk shall check each item of the inventory submitted with the actual item in the applicant's place of business, shall make an investigation to ascertain the truthfulness of the application, shall determine whether the merchandise described in the inventory is a bona fide part of the applicant's stock in trade and not secured, purchased, or brought into such place of business for, or in anticipation of, such sale, and shall determine whether the applicant is bona fide disposing of his or her stock for the purpose of retiring from business. The applicant shall pay the City Twelve and No/100ths ($12.00) Dollars for each day, or fraction thereof, the City Clerk is engaged in such investigation. Such sum shall be deducted from the deposit made by the applicant pursuant to the provisions of subsection (d) of this section, and the amount of the deposit, after the deduction of the fees for the investigation by the City Clerk, shall be repaid to the applicant upon the written order of the City Clerk after the conclusion of the auction.

(f) Permits: Terms: Extensions. Except as otherwise provided in this subsection, such sales shall not continue for more than 30 days in all from their commencement. All permits granted pursuant to the provisions of this section shall expire within 60 days from the date of issuance. No sale at public auction shall be held during the month of December of any year. If the applicant has not been able to dispose of his or her stock, as shown on the inventory filed with his or her application, within the 30 days permitted by the original permit, and if he or she shall file a request with the Council for an extension of the permit for a period of not more than 30 additional calendar days, the Council may, by a four-fifths vote, grant such request. Such extension shall not include any portion of the month of December of any year.

(g) Days of Sales. Every sale at public auction of the stock on hand of such merchants shall be held on successive days, Sundays and legal holidays excepted.

(h) Hours of Sales. No auction sale of jewelry shall be conducted at public auction between the hours of 6:00 p.m. and 8:00 a.m.; provided, however, the Council, in the exercise of its discretion, may change or extend the hours for the holding of such auction sales.

(§ 11, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

The provisions of this chapter shall not apply to any auction held for charitable or benevolent purposes or for any church fair, festival, or bazaar; nor to any auction held or conducted by any public officer pursuant to the provisions of any law of the United States or State; nor to any auction of livestock, farm produce, or used farm equipment in an auction yard established for the purpose of selling livestock, farm produce, or used farm equipment.

(§§ 10 and 14, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)

Any person violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor and, upon conviction, shall be punishable as set forth in Chapter 2 of Title 1 of this Code.

(§ 15, Ord. 390, as amended by § 4, Ord. 1161, eff. February 17, 2018)