Modesto Municipal Code Art. 7 Sale of Jewelry at Auction

The following words and phrases when used in this article shall have the meaning hereafter specified unless a different meaning clearly appears from the text.

(a) "Jewelry" shall include platinum, gold, silver, plated ware, precious stones, semi-precious stones, watches, clocks, and other articles of jewelry.

(b) "Auction," "public auction," and "auction sale" shall mean and include a sale or offering for sale of any jewelry as hereinabove defined to the highest bidder in any building, or in or on any street or alley, private premises, or in any other place, where any and all persons who choose are permitted to attend and offer bids. The terms "auction," "public auction" and "auction sale" shall also include a sale in which, instead of the bidders making increasingly higher bids for an article or articles of merchandise, the seller or auctioneer announces a price at which he 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.

(Sec. 1, Ord. 913-N.S., as amended by Sec. 1, Ord. 997-N.S.)

It shall be unlawful for any person to sell, offer for sale or advertise for sale at public auction in the City, any jewelry as hereinabove defined. Provided, however, that any person who has been engaged in the business of selling such jewelry at retail in the City continuously for a period of not less than one year, may obtain a permit as herein after provided, to conduct a public auction of such article for the purpose of disposing of his stock on hand and of closing out his business. Any such person so obtaining such permit shall be subject to all the regulations and restrictions contained in this article.

(Sec. 2, Ord. 913-N.S.)

The applicant for a permit to conduct a public auction of jewelry shall make application therefor not less than thirty (30) days previous to the intended auction to the City Clerk of the City, and at the time of such application shall pay a minimum filing fee of Twenty-five ($25.00) Dollars, provided, that if the net inventory exceeds the sum of Five Thousand ($5000.00) Dollars, then, in that event, the fee shall be Twenty-five ($25.00) Dollars plus Five ($5.00) Dollars for each One Thousand ($1000.00) Dollars or fraction thereof of net inventory exceeding Five Thousand ($5000.00) Dollars. Such application shall be in writing on forms provided by the City Clerk and under oath, showing all the facts in regard to the closing out of applicant's business, and showing all the facts in regard to conducting the sale at public auction and the place of conducting the same, including an inventory of the goods, wares and merchandise to be sold at said proposed sale, the quality, quantity and grade of each item, the wholesale value thereof, and a statement of the names of the persons from whom the jewelry so to be sold was obtained, the date of the delivery of such jewelry to the person applying for the permit, and the place from which such jewelry was last taken and all details necessary to fully identify the jewelry, together with such other information as may be required by the City Clerk.

Such application shall specify the proposed period of time over which such proposed sales as public auction shall continue, which period shall not exceed thirty (30) days, Sundays and legal holidays excluded. Provided, that if it shall be made to appear upon sworn application to the City Clerk at any time during said period of thirty (30) days, that all the jewelry described and inventoried in the original application has not been sold, accompanied by a statement or inventory of what remains thereof, a permit supplemental to that provided for may be issued by said City Clerk upon the same terms and conditions as said original permit, granting authority to continue such sale for a further period of thirty (30) days.

Upon receipt of such application, the City Clerk shall refer the same to the Chief of Police for investigation and report.

After receipt of the report of the Chief of Police, if the City Clerk shall be satisfied that applicant and the person who is to conduct said proposed auction sale are of good moral character, that said proposed auction sale is for the purpose of disposing of applicant's stock in trade and closing out his business, that the jewelry proposed to be sold at the public auction is a bona fide part of applicant's stock in trade and not secured, purchased or brought into his place of business for or in anticipation of said proposed sale, that neither applicant nor any of its officers, directors or members have violated this article, and that the advertising and conducting of such sale will not be injurious to the peace, health, safety or welfare of the people of said City, he may issue a revocable permit to the person applying for the same to advertise and conduct a sale at public auction, upon the applicant's filing the bond hereinafter provided for.

The making of any abnormal purchase by the applicant within a period of six (6) months prior to the application for a permit under this article shall prima facie be deemed made for the purpose of disposing of the same at such proposed public auction and shall be just cause for denial of the permit.

The City Clerk in considering the application and the attending facts shall exercise a reasonable and sound discretion in granting or denying the permit applied for.

(Ord. 913-N.S.)

No such permit shall be granted until the applicant shall have filed with the City Clerk a surety bond in the sum of Two Thousand, Five Hundred and no/100ths ($2,500.00) Dollars, conditioned for the faithful performance of all the provisions of this article and all other applicable laws of the City and of the State pertaining to auctions and closing-out sales, and shall also indemnify any purchaser at said public auction who suffers any loss by reason of any misrepresentations or deception made or practiced by applicant, his agents, servants, or employees, either at the time of making said sale or through any advertisement of any character whatsoever printed or circulated by the principal, his agents, servants or employees.

Such bond shall contain the further provisions that it inures to the benefits of any and all persons who may be damaged by reason of any failure on the part of the person or persons named therein to comply with the provisions of said bond, and that any person or persons so damaged may maintain an action thereon against the person or persons named in said bond, and the surety or sureties upon said bond, and that said bond may be sued and recovered upon in several actions until the whole penalty is exhausted.

In lieu of a bond executed by a surety corporation, the applicant may file a similar bond in the amount of Five Thousand and no/100ths ($5,000.00) Dollars executed by the applicant and two personal sureties. Such sureties must be residents of this County and State, and must own real property in said county of an assessed value of not less than the penalty of the bond, and must be worth at least the penalty of the bond over and above their just debts and liabilities, exclusive of property exempt from execution. The affidavit of each surety, setting out facts showing the qualifications of the sureties as aforesaid, must accompany the bond.

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

The corporate surety bond, personal property bond or a savings and loan certificate and share shall be in a form approved by the City Attorney.

(Ord. 913-N.S., amended by Ord. 546-C.S., effective 12-25-62)

Whenever the City Clerk finds that the holder of a permit hereunder has violated any of the conditions or provisions of this article, or any other law pertaining to his operations, or that the permit was obtained by misrepresentations, that he has failed to maintain the bond required by this article, or that said auction is being conducted in a manner which will be injurious to the peace, health, safety or welfare of the people of the City, he may revoke said permit upon giving the holder thereof forty-eight (48) hours previous notice in writing by personal service upon him or upon the auctioneer conducting said auction, or by mail addressed to him at his place of business in the City, or the place where said auction is being conducted as shown on his application. It shall be unlawful for any person to conduct an auction sale as herein defined after his permit to do so shall have been revoked.

(Sec. 5, Ord. 913-N.S.)

Should any applicant or applicants be dissatisfied with the action of the City Clerk not to grant a permit or for the revocation of a permit, then said applicant may make written objection to the Council of the City, setting up the grounds of dissatisfaction. Upon the receipt of such objection, the Council shall set the matter for hearing at its next regular meeting giving written notice thereof to the applicant. Upon such hearing the Council may sustain, suspend or over-rule the decision of the City Clerk and its decision shall be final and conclusive. Pending the hearing before the Council, the decision of the City Clerk shall remain in full force and effect and any reversal thereof by the Council shall not be retroactive but shall take effect as of the date of the Council's decision.

(Sec. 6, Ord. 913-N.S.)

It shall be unlawful for the holder of a permit hereunder or for his agents, servants or employees to sell or offer for sale at auction any jewelry to which there is not attached a card or label containing a true and correct statement plainly written or printed in the English language specifying the kind and quality of metal of which such article is made or composed, or the percentage of karat or purity of such metals. If such articles are plated or overlaid, then such tag or label shall contain a true statement of the kind of plate. When precious stones are sold or offered for sale at auction, as such or as part of an article of jewelry, such statement shall set forth the true name of said stones. When imitations of precious or semiprecious stones are offered for sale or sold at auction, as such or as part of an article of jewelry, said imitations shall be described or defined as synthetic or imitations of such stones as they purport to represent. When watches or clocks are sold or offered for sale at public auction the true names of the manufacturers shall be stated in writing and no parts of the movements or mechanism thereof shall be substituted or contain false or misleading names or trade marks, neither shall secondhand or old movement be offered for sale in new cases without a true statement to that effect. Used and rebuilt watches shall be so indicated. Such card, tag or label shall remain securely attached to any such article of merchandise, shall be delivered to the purchaser as a true and correct description and representation of the article sold and shall be deemed prima facie evidence of intent to defraud in case such written statement is not a true and correct description or representation of such article sold.

(Sec. 7, Ord. 913-N.S.)

No article of jewelry shall be sold or offered for sale or advertised for sale at public auction which is an addition to the stock on hand of the holder of a permit hereunder or which is not included in the inventory filed with the City Clerk with the application for a permit hereunder.

(Sec. 8, Ord. 913-N.S.)

It shall be unlawful for any permittee, his agents, servants, or employees to make any statements which are false in any particular, or which have a tendency to mislead, or to make any misrepresentations whatsoever with reference to any article of jewelry sold or offered for sale at public auction.

(Sec. 9, Ord. 913-N.S.)

It shall be unlawful for any auctioneer or for any person conducting a sale of jewelry at public auction to use any person as a false bidder for the purpose of increasing the price of any article offered for sale at such auction.

It shall be unlawful for any person to make or offer a false bid or any other than a bona fide bid at a public auction or to act as a by-bidder or what is commonly known as a "capper," "booster" or "shiller" at any auction, or falsely to pretend to buy any jewelry at an auction sale.

(Ord. 913-N.S.)

(a) It shall be unlawful for any auctioneer, conducting an auction sale, or its agents, servants or employees to ring a bell or cause or permit the same to be rung in or about the front of the premises, or in any place on or near said premises where the same may be heard on the public street or sidewalk in front of said premises where there is conducted an auction sale, before, after or during such sale for the purpose of attracting the public to such auction sale.

(b) It shall be unlawful for any auctioneer, or person conducting an auction sale, or its agents, servants or employees, to use a searchlight or similar light or to solicit or permit the soliciting by music, singing or loud or unusual noises to be made or done for the purpose of attracting the public to an auction sale.

(Ord. 913-N.S.)

It shall be unlawful for any person to conduct or allow, permit or suffer to be conducted any auction sale between the hours of 6:00 p.m. of any day and 8:00 a.m. of the following day.

(Ord. 913-N.S.)

Nothing in this article contained shall apply to any public officer or officer of any court, who in pursuance of his duty as such officer, shall conduct within the City an auction sale pursuant to any law of the State or of the United States of America, or the lawful order of any court nor to the sale or offering for sale of unredeemed pledges or chattels in the manner provided by law, by pawnbrokers, loan companies or others, the sale or offering for sale for the purpose of satisfying a lien, or any other sale or offering for sale at auction where the same is specifically authorized or provided by law.

(Ord. 913-N.S.)