Chapter 6.18

BUSINESS SALES

Sections:

• 6.18.010 Definitions.

• 6.18.020 Permit - Required.

• 6.18.030 Exemptions.

• 6.18.040 Permit - Application - Examination - Issuance conditions - Fee.

• 6.18.050 Permit - Scope and term - Renewal. 6.18.060 Restrictions on activities authorized by permit.

• 6.18.070 Loss of identity of goods or merchandise.

• 6.18.080 Display of permit and authorization to examine merchandise.

For the purpose of this Chapter 6.18 only, the following words and terms shall be deemed to mean and be construed as follows:

• A. "Advertise," "advertisement," "advertising," "publish," "publication," means 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 in this section, 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.

• B. "Permit" means a permit issued pursuant to this chapter.

• C. "Permittee" means any person to whom a permit has been issued pursuant to this chapter.

• D. "Sale" means:

  1. Any sale of, or any offer to sell, to the public, or any group thereof, goods, wares or merchandise on order, in transit or in stock, in connection with a declared purpose as set forth by advertising that such sale is anticipatory to the termination, liquidation, revision, windup, discontinuance, removal, dissolution or abandonment of the business or that portion of the business conducted at any location; and

  2. 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

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§ 6.18.040

3. All sales advertised to be "adjuster's sale," "adjustment sale," "assignee's sale," "bankrupt sale," "benefit of administrators sale," "benefit of creditors sale," "benefit of trustees sale," "building coming down sale," "closing out sale," "creditors' committee sale," "creditors' 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," "receivers' sale," "reorganization sale," "salvage sale," "selling out sale," "smoke sale," "smoke and water sale," "trustees' sale," "quitting business sale," "wholesale closing out sale," "we quit sale," "we give up sale," "fixture 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

4. 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

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

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

(Prior code §§ 6701.1 - 6701.5.)

No person shall hereafter publish or conduct any sale of the type herein defined without first obtaining a permit therefor from the chief of police of the city in the manner hereinafter provided in this chapter.

(Prior code § 6701.6; Ord. 21472.)

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 officers, such as sheriffs and marshals;

• C. Duly licensed auctioneers selling at an auction;

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

• E. Persons engaged in the business of buying and selling secondhand, distressed, bankrupt or liquidated stock or similar merchandise in bulk lots for purposes of resale and having a fixed place of business for such purpose in the city.

• (Prior code § 6701.13.)

• A. No permit to conduct a sale as defined herein shall be granted except upon written application to the chief of police, signed and verified before a person authorized to administer oaths, by the person who intends to conduct such sale, and each application shall set forth and contain the following information:

  1. Description, by street location and kind of building, of the location at which sale is to be held;

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2. The nature of the occupancy, whether by ownership, lease or sublease, and if by lease or sublease, the effective date of the termination of such tenancy;

3. A copy of all advertisements proposed to be used in connection with such sale, and a statement of the means or methods of advertising to be used in advertising such sale;

4. The facts in regard to the insurance, bankruptcy, insolvency, assignment, mortgage foreclosure, administration, receivership, trusteeship, removal, executorship removal, or other cause advertised to be the reason for the proposed sale;

5. An inventory or statement, in such form and in such detail as the chief of police may require, setting forth the amount and description of goods, wares and merchandise to be sold at such sale, and, when required by the chief of police, the date of acquisition of such goods, wares or merchandise, the persons from whom obtained, and the place from which said goods were last taken;

6. Such additional information as the chief of police may require.

• B. The chief of police may require that all goods, wares and merchandise listed upon the inventory or statement 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.

• C. Upon the filing of the application, the chief of police may make or cause to be made an examination, audit or investigation of the applicant and his affairs, in relation to the proposed sale.

• D. If the chief of police 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 chief of police, will work a fraud upon the purchasers, the chief of police may issue to the applicant a permit to conduct such sale in accordance with the provisions of this chapter; otherwise the chief of police shall deny the application and refuse said permit. The chief of police may refuse a permit because of the insufficiency of the information set forth in the application, but in such event the chief of police shall grant the applicant permission to file an amended application.

he applicant a permit to conduct such sale in accordance with the provisions of this chapter; otherwise the chief of police shall deny the application and refuse said permit. The chief of police may refuse a permit because of the insufficiency of the information set forth in the application, but in such event the chief of police shall grant the applicant permission to file an amended application.

• E. No application for any such permit shall be accepted by the chief of police for filing unless accompanied by a filing fee in the amount as set forth in the schedule of fees established by resolution of council, no part of which shall be refundable.

• F. Each permit issued under the provisions of this chapter shall have printed, written or stamped on the face thereof the following:

  • "This permit is granted by the chief of police of the City of San José and accepted by the permittee upon the condition that such permittee comply with and abide by all the provisions of Chapter 6.18, Section 6.18.010 to 6.18.090 inclusive, of Title 6 of the San José Municipal Code." with a line thereunder for signature by the permittee and a witness.

• G. At the time of the delivery of said permit, such statement must be signed by the permittee in the presence of an employee of the City of San José, who shall sign as a witness.

• (Prior code § 6701.7; Ord. 21285.)

Any permit issued under the provisions of this chapter shall authorize the one type of sale named in the application, at the place named therein, for a period of not more than sixty calendar days, and shall permit the sale of goods only which are set out in said application, all of which goods throughout

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§ 6.18.080

the duration of the sale must be definitely separated from any other goods displayed at, or within the store or place of business, and all advertising, signs or notices referring to or calling attention to the sale must be confined to the display, or displays, of goods involved in the sale. Provided, however, that the chief of police may, upon a verified application therefor, renew said permit for a period of not to exceed thirty days, upon the payment of a renewal fee in the amount as set forth in the schedule of fees established by resolution of council. Such verified petition 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 chief of police shall cause an investigation to be made at once, and if satisfied of the truth of the statements therein contained, the chief of police shall grant such renewal, which shall be endorsed and signed as provided for the original permit. The chief of police may renew any original permit in the manner above provided not to exceed two times, upon the payment of the renewal fee; provided, however, that the chief of police may not issue permits or renewals which will allow the conduct of any sale or sales of any kind or kinds named in this chapter at any one location for more than one hundred twenty calendar days in any one twelvemonth period.

(Prior code § 6701.8; Ord. 21285.)

• A. Such permit shall be valid only for the advertising, representation and sale of the particular goods, wares or merchandise described in the original application therefor, and at the particular time and particular place stated therein, and by the particular applicant, and any renewal, replenishment or substitution of such goods, wares or merchandise, or change of such time or place for such sale, or change of person conducting the sale, shall be unlawful and shall render such permit void. No

person in contemplation of conducting any such sale or special sale, or during the continuance of such a sale, shall order any goods, wares or merchandise for the purpose of selling them at such sale, and any unusual purchase or additions to the stock of such goods, wares or merchandise, within sixty days before the filing of such application for a license to conduct such a sale, shall be presumptive evidence that such purchase or additions were made in contemplation of such sale and for the purpose of selling them at such sale.

• B. Each sale of goods, wares or merchandise which were not inventoried and described in said original application shall constitute a separate offense under this chapter.

(Prior code § 6701.9.)

Any removal of any goods, wares or merchandise inventories and described in the original application form from the place of sale mentioned in such application shall cause such goods to lose their identity as the stock of any of the sales defined in this chapter, and no permits thereafter will be issued for the conducting of a sale of any such goods, wares or merchandise in such manner as to identify them with the store, store name, store owner or location referred to in the original application. (Prior code § 6701.10.)

Upon commencement and throughout the duration of any sale, as herein defined, the said permit shall be prominently displayed near the entrance to the premises. A duplicate original of the application and stock list pursuant to which such permit was issued shall at all times be available to the chief of police, or to his inspector and investigators, and the permittee shall permit such inspector and investigators to examine all merchandise in the premises for comparison with such stock list. (Prior code § 6701.11.)

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§ 6.18.090

Suitable books and records shall be kept by the permittee and shall at times be available to the inspector and investigators. At the close of business each day the stock list attached to the application shall be revised and those items disposed of during such day shall be so marked thereon. (Prior code § 6701.12.)