Chapter 4-8 — FIRE AND CLOSING-OUT SALES

Article 1 Definitions

As used in this Chapter, the following words and phrases shall mean:

Advertise, Advertisement, Advertising, Publish, Publication. "Advertise," "Advertisement," "Advertising," "Publish," "Publication" shall mean any and all means, whether oral, written, lettered, or printed, used for conveying to the public notice of the conduct of a closing-out sale, or notice of intention to conduct such sale, including but not limited to oral or written announcement by proclamation or outcry, newspaper advertisement, magazine advertisement, handbill, written or printed notice, printed display, billboard display, poster, and radio announcement.

City Manager. "City Manager" shall mean the City Manager or designee.

Closing-Out Sale or Sale. "Closing-out sale" or "sale" shall mean 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 or to avoid the termination, liquidation, revision, windup, discontinuance, removal, dissolution, or abandonment of the business or that portion of the business conducted at any location; and

(1) 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

(2) All sales advertised to be "Adjuster's Sale," "Assignee's Sale," "Bankrupt Sale," "Benefit or Creditors' Sale," "Closing-Out Sale," Creditors' Sale," "Damaged Goods Sale," "Executors' Sale," "Final Days Sale," "Fire Sale," "Forced Out Sale," "Insolvent Sale," "Insurance Salvage Sale," "Last Days Sale," "Lease Expiring Sale," "Liquidation Sale," "Mortgage Sale," "Removal Sale," "Reorganization Sale," "Salvage Sale," "Selling Out Sale," "Smoke Sale," "Trustees' Sale," "Quitting Business Sale," or advertised by any other expression or characterization closely similar to any of the foregoing and calculated to convey the same meaning; and

(3) 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

(4) All sales accompanied by notice or advertising indicating that the premises are available for purchase or lease or are otherwise to be vacated; and

(5) 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.

Permittee. "Permittee" shall mean any person to whom a permit has been issued pursuant to this Chapter.

Person. "Person" shall mean any individual, corporation, partnership, association or organization and includes any trustee, receiver, assignee, agent or other representative.

Article 2

Permit Required

No person shall publish or conduct any closing-out sale without first obtaining a permit from the City Manager as provided in this Chapter.

No permit to conduct a closing-out sale shall be granted except upon written application to the City Manager, signed and verified by the person who intends to conduct such a sale, and each application shall set forth and contain the following information:

(a) Description by street location at which such sale is to be held;

(b) 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;

(c) 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;

(d) 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;

(e) An inventory or statement, in such form and in such detail as the City Manager may require,
setting forth the amount and description of goods, wares, and merchandise to be sold at
such a sale, and, when required by the City Manager, the date of acquisition of such goods,
wares, or merchandise, the person from whom obtained, the place from which said goods
were last taken, and such other information describing the goods as the City Manager may
require.

The City Manager may make or cause to be made an examination, audit or investigation of the applicant and his or her affairs, in relation to the proposed sale.

If the City Manager finds that the statements in the application are true and complete, 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 same are not such as, in the opinion of the City Manager, will work a fraud upon the purchasers, the City Manager shall issue to the applicant a permit to conduct such sale in accordance with the provisions of this Chapter; otherwise, the City Manager shall deny the application and refuse said permit. No application shall be denied unless an opportunity for a hearing before the City Manager has been given the applicant by a 10 days' notice in writing.

No application for any such permit shall be accepted by the City Manager for filing unless accompanied by a filing fee in the amount set forth by the City Council by resolution, no part of which shall be refundable.

Each permit shall have printed, written, or stamped on the face thereof the following:

"This permit is granted by the City Manager and accepted by the permittee upon the condition that such permittee comply with and abide by all the provisions of the San Leandro Municipal Code."

with a line thereunder for signature by the permittee and a witness. At the time of the delivery of said permit such statement must be signed by the permittee in the presence of the City Manager who shall sign as a witness.

Any permit shall authorize the one type of sale named in the application, at the place named therein, for a period of not more than 60 calendar days, and shall permit the sale of goods only which are set out in said application, all of which goods throughout 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 City Manager may, upon a verified application therefor, renew said permit for a period of not to exceed 30 days, upon the payment of a renewal fee in the amount set forth by the City Council by resolution. 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 City Manager shall cause an investigation to be made at once, and if satisfied of the truth of the statements therein contained, the City Manager shall grant such renewal, which shall be endorsed and signed as provided for in the original permit. The City Manager 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 City Manager may not issue permits or renewals which will allow the conduct of any closing-out sale, or sales, of any kind, or kinds at any one location for more than 120 calendar days in any one twelve (12) month period.

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 closing-out sale, or change of person conducting the closing-out sale, shall be unlawful and shall render such permit void. No person in contemplation of conducting any such closing-out sale or during the continuance of such closing-out sale, shall order any goods, wares, or merchandise for the purpose of selling them at such closing-out sale, and any unusual purchase, or additions to the stock of such goods, wares, or merchandise, within 60 calendar days before the filing of such application for a license to conduct such a closing-out sale shall be presumptive evidence that such purchase or additions were made in contemplation of such closing-out sale and for the purpose of selling them at such closing-out sale.

The City Manager shall have the power to revoke at any time any permit granted in accordance with this Chapter whenever any such closing-out sale is being conducted in violation of any of the provisions of this Chapter or in such manner as to deceive or defraud the public, or if:

(a) The permittee has made any material misstatement in the application for such permit;

(b) The permittee has been guilty of any fraudulent practice or practices, in the conduct of the sale authorized by such permit;

(c) The permittee has failed to include in the inventory required by the provisions of this Chapter the goods, wares, or merchandise required to be contained in such inventory;

(d) The permittee has added, caused to be added, or permitted to be added any goods, wares, or merchandise not described in the original inventory; or

(e) The permittee has violated any of the provisions of this Chapter of any other law pertaining to advertising.

No permit shall be revoked until a hearing has been held by the City Manager. Written notice of the time and place of such hearing, and a brief statement of the grounds for such revocation, shall be served upon the permittee at least five days prior to the date set for such hearing. A person aggrieved by the decision of the City Manager in denying or revoking any permit may, within 10 days after notice of decision of the City Manager is served, appeal to the City Council by filing a written notice of appeal with the City Clerk. The City Council shall forthwith hold a hearing and its decision shall be final. During the pendency of an appeal, the license shall not remain in effect.

Article 3

General(Legislative History: Ordinance No. 938 N.S., Ordinance No 82-038, 5/24/82; Ordinance No. 2002-032, 12/9/02 (Section 4-8-320))

Any removal of any goods, wares, or merchandise inventoried and described in the original application 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 herein, 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.

Upon commencement and throughout the duration of any sale the 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 City Manager and the permittee shall permit the City Manager to examine all merchandise in the premises for comparison with such stock list.

Suitable books and records be kept by the permittee and shall at all times be available to the City Manager. 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.

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 auction; and

(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.

In addition to the revocation of a license pursuant to Section 4-8-235, any violation of the provisions of this Chapter may be abated in the manner provided by Chapter 1-12. For the purposes of enforcement, each sale of goods, wares, or merchandise as were not inventoried and described in said original applications shall constitute a separate offense under this Chapter.