Modesto Municipal Code Art. 14 Regulating Going-Out-of-Business Sales, Removal-of-Business Sales and Fire…

For the purposes of this article the following terms, phrases, words, and their derivations shall have the meaning given herein.

(a) "Director" is the Director of Finance of the City of Modesto.

(b) "Fire and other altered goods sale" is a sale held out in such a manner as to reasonably cause the public to believe that upon the disposal of the stock of goods on hand the business will cease and be discontinued, including but not limited to the following sales: Adjuster's; Adjustment; Alteration; Assignee's; Bankrupt; Benefit of Administrator's; Benefit of Creditors'; Benefit of Trustees; Building Coming Down; Closing; Creditor's Committee; Creditor's 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.

(c) "Goods" is meant to include any goods, wares, merchandise or other property capable of being the object of a sale regulated hereunder.

(d) "Removal of Business Sale" is a sale held out in such a manner as to reasonably 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 city or will then continue business from other existing locations in the city.

(Added by Ord. 240-C.S., effective 5-7-58)

A license issued by the Director 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; and

(c) Fire and Other Altered Stock sale.

(Added by Ord. 240-C.S., effective 5-7-58)

(a) Provisions Supplement General Business License Regulations. The provisions of this article are intended to augment and be in addition to provisions of the general business license regulations of the City contained in Title 6 of the Modesto Municipal Code. Whenever the provisions of this article impose a greater restriction upon persons, premises, businesses, or practices than is imposed by the general business license regulations, the provisions of this article shall control.

(b) Interval Between Sales. Any person who has held a sale, as regulated hereunder, at the location stated in the application, within one year last past from the date of such application shall not be granted a license.

(c) Restricted Location. Where a person applying for a license hereunder operates more than one place of business the license 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 the license sale, nor shall the store or branch conducting the license sale advertise or represent that any other store or branch is cooperating with it or participating in any way in the licensed sale.

(d) Persons Exempted. The provisions of this article shall not apply to or affect the following persons:

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

(2) Persons acting in accordance with their powers and duties as public officials;

(3) Duly licensed auctioneers, selling at auction;

(4) 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 ordinance have not been complied with.

(Added by Ord. 240-C.S., effective 5-7-58)

(a) Written Information Required. A person desiring to conduct a sale regulated by this article shall make a written application to the Director 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;

(a) 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;

(b) Goods Purchased for Sale Hereunder. Such inventory shall not include goods ordered in contemplation of conducting a sale regulated hereunder. Any unusual purchase, or additions to the stock of goods of the business hereby affected within ninety (90) days before the filing of an application hereunder shall be deemed to be of such character.

(9) 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 ninety (90) days prior to such sale, the time of acquisition of such stock;

(10) 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.

(Added by Ord. 240-C.S., effective 5-7-58)

Any applicant for a license hereunder shall submit to the Director with his application a license fee of One Hundred and no/100ths ($100.00) Dollars, together with a corporate surety bond, payable to the City in the penal sum of One Thousand and no/100ths ($1,000.00) Dollars, conditioned upon compliance with the provisions of this article.

In lieu of furnishing a corporate surety bond, the applicant may furnish to the City a savings and loan certificate and share in a form approved by the City Attorney as provided by Article 6 of Chapter 4 of Title 2 of the Modesto Municipal Code.

(a) Exemption: Removal Sales. Any applicant for a license to conduct a removal of business sale under this article shall be exempt from payment of a license fee provided applicant files with his application an affidavit containing the following information:

(1) A statement that applicant has engaged in business at the premises where such sale is to be held for a period of not less than one year immediately prior thereto.

(2) A statement that applicant intends to operate said business at a designated new location within the City for a period of not less than one year following the termination of the removal sale.

(Added by Ord. 240-C.S., amended by Ord. 348-C.S., and Ord. 546-C.S., effective 12-25-62)

(a) A license shall be issued hereunder on the following terms:

(1) Licensing Period. This license shall authorize the sale described in the application for a period of not more than sixty (60) consecutive days, Sundays and legal holidays excluded, following the issuance thereof.

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

(3) Salable Goods. The license shall authorize only the sale of goods described in the inventory attached to the application.

(4) Non-Transferability. Any license herein provided for shall not be assignable or transferable.

(Added by Ord. 240-C.S., amended by Ord. 348-C.S., effective 12-31-59)

(a) A license 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.

(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 shall 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.

(6) 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 as prescribed by the Director shall be kept by the permittee and shall be available at all times to the Inspectors of the Director.

(Added by Ord. 240-C.S., effective 5-7-58)

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.

(Added by Ord. 240-C.S., effective 5-7-58)

No sale as herein defined which is in progress at the time this article becomes effective shall be continued more than thirty (30) days thereafter without complying with all of the requirements of this article.

(Added by Ord. 240-C.S., effective 5-7-58)

In addition to other remedies, the City Attorney in the name of and in behalf of the City of Modesto may institute appropriate action or proceedings in any court of competent jurisdiction to restrain or abate violations of the provisions of this article.

(Added by Ord. 240-C.S., effective 5-7-58)

The Director 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 article.

(Added by Ord. 240-C.S., effective 5-7-58)

The Director shall have the power to revoke at any time any permit granted in accordance with the provisions of this article whenever any such sale or special sale is being conducted in violation of any of the provisions of this article, or in such a manner as to deceive 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 article, 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 article or the laws pertaining to advertising.

(Added by Ord. 240-C.S., effective 5-7-58) (Article 14 added by Ord. 240-C.S., effective 5-7-58)