Chapter 5.56 — AUCTION AND CLOSING OUT SALES

For the purpose of this chapter the following words and terms shall be deemed to mean and be construed as follows:

(a)

Fire or Closing Out Sale. Any sale of, or any offer to sell, to the public or any group thereof, any goods, wares, 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.

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.

All sales advertised in a manner 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.

All sales advertised to be "Adjuster's Sale", "Adjustment Sale"; "Assignee's Sale"; "Bankrupt Sale"; "Benefit of Administrator's Sale"; "Benefit of Creditors' Sale"; "Benefit of Trustee's Sale"; "Building Coming Down Sale"; "Closing 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"; "Receiver's Sale"; "Removal Sale"; "Reorganization Sale"; "Salvage Sale"; "Selling Out Sale"; "Smoke Sale"; "Smoke and Water Sale"; "Trustee's Sale; "Quitting Business Sale"; "Wholesale Closing Out Sale"; "We Quit Sale"; "We Give Up Sale"; "Fixtures for Sale"; or advertised by any other expression or characterization closely similar to any of the foregoing and calculated to convey the same meaning.

All sales accompanied by advertising indicating a business emergency or failure affecting the seller or any previous holder of goods to be disposed of and all sales advertised to be "Action Sales" or advertised by any other expressions or characterization closely similar to said phrase and calculated to convey the same meaning.

The terms "Fire Sale" or "Closing Out Sale" shall include a sale in which a seller announces a price at which he will sell one or more article 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 a fixed price, or a sale in which the seller announces an article at varying prices until a price is announced at which a buyer buys said article or articles of merchandise.

(b)

Auction Sale. A sale of property by public outcry to the highest bidder.

(c)

Auctioneer. Any person who shall, by public outcry, sell or offer to sell to the highest bidder, or any person who shall arrange for the disposal at public offering to the highest bidder, when bids are called for, either in person or by duly employed and Licensed auctioneers, any goods, wares, merchandise, fruits, stocks, bonds and other securities, or other personal property, in any building or on any of the streets or sidewalks, or in any other place in the County, where any and all persons who choose are permitted to attend and offer bids, or any person who shall advertise as a public auctioneer, or in any other manner hold himself out as such for public patronage, or shall receive fees as a commission for services as such.

(d)

Property. Personal property.

(e)

Person. Any natural person, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization, or the manager, agent, servant, officer or employee of any of them.

(f)

Auction House. Any business or establishment which is established for the purpose of conducting auction sales, and which has a fixed and permanent place of business.

(g)

Advertise: Advertisement: Advertising: Publish: Publication. 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 herein, 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 notice, printed display, billboard display, poster and radio announcement.

(Prior code § 5500.1; Ord. 1068, 07/20/54)

No person shall hereafter publish or conduct any fire or closing out sale as herein defined without first obtaining a License therefore from the Board of Supervisors in the manner hereinafter provided in this chapter.

(Prior code § 5500.2; Ord. 1068, 07/20/54)

No person shall arrange or advertise for the disposal at public offering to the highest bidder, or sell or offer to sell at public auction within the County, or in any other manner carry on the business of selling or soliciting for sale at public auction, any property, whether the same shall be his own property or the property of others, without first complying with the provisions of this chapter relating to auction sales and auctioneers, and obtaining a License as a public auctioneer as herein provided.

(Prior code § 5500.3; Ord. 1068, 07/20/54)

No License to conduct a fire or closing out sale, or License for auctioneer, as said terms are herein defined, shall be granted except upon written Application, signed and verified before a person authorized to administer oaths, by the person who intends to conduct such sale or person who intends to act as an auctioneer at an auction sale. Said Application shall contain the information as herein after required for fire and closing out sales or auctioneers.

If the Applicant is a firm, the Application shall state the residence addresses of the members of such firm. If the Applicant is a corporation, the Application shall state the residence addresses of the president, the secretary, and the managing director, if any, of such corporation.

Said Application shall be filed with the County Tax Collector, together with any fees or bonds required by this chapter. Within five (5) days after receipt of the Application, the Tax Collector shall transmit the Application to the Sheriff. The Sheriff or other officer appointed by him shall cause such investigation as he deems necessary to determine whether the statements contained in the Application are true, and whether the Application should be granted. After such examination, the Sheriff shall endorse thereon his recommendation for approval or denial of said Application and transmit the Application to the Board of Supervisors.

The Board of Supervisors shall review said Application and recommendations of the Sheriff. If the Application has been approved by the Sheriff, the Board shall grant such License, unless Applicant does not have a sufficiently good character and reputation to render it in the interests of the public that a License be granted. The Board shall not deny a License until the Board first notifies the Applicant in writing of its intention to deny the License. The Board shall grant a hearing to the Applicant as to whether the License should be granted or denied if the Applicant, in writing, within ten (10) days after receipt of notice of intention to deny the License, requests such hearing.

If the License is granted, the Board shall transmit the Application to the Tax Collector with the Board's approval thereon, and the Tax Collector shall issue the License applied for, if License fees and any bonds required by this chapter have been delivered to him.

(Prior code § 5500.4; Ord. 1068, 07/20/54)

A License granted to any person pursuant to this chapter is not transferable to any other person.

(Prior code § 5500.5; Ord. 1068, 07/20/54)

Every person having a License under the provisions of this chapter shall keep such License posted and exhibited in some conspicuous part of the Premises wherein the fire, closing out or auction sale is being held. Every person having a License under the provisions of this chapter shall produce and exhibit the same whenever requested to do so by any officer authorized to issue, inspect or collect Licenses.

(Prior code § 5500.6; Ord. 1068, 07/20/54)

The Board of Supervisors shall have the power to revoke at any time any fire or closing out sale License or auctioneer's License granted in accordance with this chapter, whenever any such fire, closing out or auction sale is being conducted in violation of any of the provisions of this chapter, or in such a manner as to deceive or defraud the public.

No License shall be revoked until a written complaint and copy thereof have been filed with the Board of Supervisors, setting forth in ordinary and concise language the charge made against the Licensee. Such complaint shall be verified by the oath of the person making the charge, such verification being in the form prescribed by the Code of Civil Procedure for verified pleadings in civil actions. Upon receipt of the complaint, the Board shall set a day for hearing on revocation of the permit, and at least ten (10) days prior to said hearing shall cause a copy of said complaint and notice of hearing to be served upon the permittee either personally or by mail at the address where Licensee is conducting or intending to conduct such sale. When the License of any person is revoked for any cause, no new or other License shall be granted to the same person within six (6) months after such revocation.

(Prior code § 5500.7; Ord. 1068, 07/20/54)

The provisions of this chapter shall not apply to or affect the following persons:

(1)

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

(2)

Persons acting in accordance with their powers and duties as public officers, such as sheriff, marshals and public administrators.

(Prior code § 5500.8; Ord. 1068, 07/20/54)

The provisions of this ordinance shall not apply to livestock or real property.

(Prior code § 5500.9; Ord. 1068, 07/20/54)

All Applications for fire and closing out sales shall set forth and contain the following information:

(1)

Description by street location, and kind of building in which such sale is held.

(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 and methods of advertisement to be used in advertising such sale.

(4)

The facts in regard to insurance, bankruptcy, insolvency, assignment, mortgage, foreclosure, administration, receivership, trusteeship, 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 Board of Supervisors may require, setting forth the amount and description of goods, wares and merchandise to be sold at such sale, and when required by the Board of Supervisors, the date of acquisition of such goods, wares, and merchandise, and the person from whom obtained and the place from which said goods were last taken. The Board of Supervisors may also require that all such goods, wares, and merchandise listed upon the inventory and statement shall be so described 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 with such inventory can be readily determined.

(Prior code § 5500.20; Ord. 1068, 07/20/54; catchline editorially created, 6/94)

No Application for any fire or closing out sale License shall be accepted by the Tax Collector unless accompanied by a filing fee in the amount of Fifty Dollars ($50), no part of which is refundable.

(Prior code § 5500.21; Ord. 1068, 07/20/54)

Any fire or closing out sale License 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 (60) calendar days, and shall permit the sale only of goods 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, the

Board of Supervisors may, upon a verified Application therefore filed with the Tax Collector, renew said License for a period not to exceed thirty (30) days, upon the payment of a renewal fee in the amount of Twenty-Five ($25) Dollars. Such verified Application for renewal shall set forth a complete list of goods listed in the original Application remaining unsold, and shall not contain any goods, wares or merchandise not named in the original Application. Upon receipt of such Application for renewal, the Board shall cause an investigation to be made at once, and if satisfied of the truth of the statements therein contained, the Board shall grant such renewal. The Board may renew any original fire or closing out sale License in the manner above provided not to exceed two times, upon the payment of the sum of Twenty-Five Dollars ($25) for each such renewal License; provided, however, that the Board may not issue renewals which will allow the conduct of fire or closing out sales as defined in this chapter, at any one location for more than one hundred (120) calendar days in any one twelve-month period.

(Prior code § 5500.22; Ord. 1068, 07/20/54)

Such License shall be valid only for the advertising, representations and sale of the particular goods, wares or merchandise described in the original Application therefore, and at the particular time and 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 substitution of person conducting the sale, shall be unlawful and shall render such License void. No person in contemplation of conducting such sale or special sale, or during the continuance of such sale shall order any goods, wares or merchandise for the purpose of selling them at such sale, and any unusual purchase, or addition to the stock of such goods, wares or merchandise, within sixty (60) days before the filing of such Application for a License to conduct a sale shall be presumptive evidence that such purchase or additions were made in contemplation of such sale for the purpose of selling them at such sale.

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

(Prior code § 5500.23; Ord. 1068, 07/20/54)

Any removal of any goods, wares or merchandise inventoried 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 such 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 owner or location referred to in the original Application.

(Prior code § 5500.24; Ord. 1068, 07/20/54)

Suitable books and records shall be kept by the Licensee and shall at all times be available to the inspectors and investigators of the County. 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 § 5500.25; Ord. 1068, 07/20/54)

All Applications for an auctioneer's License shall contain the following information:

(1)

Name and address of Applicant;

(2)

Length of time Applicant has been engaged in business in the County of San Mateo;

(3)

How long Applicant has been a resident of the County of San Mateo;

(4)

Time and place of any auction sale Applicant may have conducted in the County or elsewhere within one (1) year prior to Application;

(5)

Whether Applicant has ever before made Application for an auction sale or auctioneer's License and has been refused, or whether Applicant has ever been Licensed as an auctioneer and said License revoked; and if such License has been revoked, the grounds for such refusal and revocation;

(6)

Whether Applicant is a citizen of the United States, or has duly declared his intention of becoming a citizen thereof;

(7)

Whether Applicant is applying for an auctioneer's License for a sale at other than a fixed and permanent place of business, or for an auctioneer's License for an auction house:

(a)

If Application is for License for an auction sale at other than a fixed and permanent place of business, Applicant shall state address of place where sale will take place, date of intended sale and a general description of property to be sold at such sale;

(b)

If Application is for a License for an auction house, Applicant shall state address of auction house, and a general description of property intended to be auctioned.

(Prior code § 5500.35; Ord. 1068, 07/20/54)

Auctioneer's Licenses to be issued hereunder, and fees payable therefor, are as follows:

(a)

The fee for an auctioneer's License for an auction sale at other than a fixed and permanent place of business shall be Twenty-Five Dollars ($25). Said License shall be valid only for the sale described in and on the dates specified in the Application.

(b)

The fee for an auctioneer's License for an auction house shall be Seventy-Five Dollars ($75). License issued for auction house shall be issued for the term and prorated as set forth in Sections 5.04.260 through

Said License shall be valid only for auction sales at the Premises specified in the Application.

Such Licenses may be renewed as provided in Sections 5.04.290 through 5.04.320 hereof.

(Prior code § 5500.36; Ord. 1068, 07/20/54; Ord. 2042, 04/28/70)

There shall be filed for an auctioneer's License with the Tax Collector, at the time of filing the Application, or at such other time as the Board of Supervisors may allow, a bond executed by a surety company duly authorized to do so. No License shall be granted until a bond shall have been given as provided for in this section. In form, the bond may be joint and several, and the penalty thereof must be at least Five Thousand Dollars ($5,000) and must be conditioned to be paid to the County of San Mateo or to any person suffering injury by reason of any violation of the provisions of this ordinance relating to auction sales, and the principal therein named shall faithfully conform to each and all of the provisions of this chapter and other ordinances of the County of San Mateo. Such bond shall not be void upon the first recovery, but may be sued and recovered upon from time to time by any person aggrieved in his own name, until the whole penalty is exhausted.

(Prior code § 5500.37; Ord. 1068, 07/20/54)

Each auctioneer must keep a book in which he must enter all sales, the amount paid on, and the date of each sale, which book must be open at all times for inspection by the Sheriff and/or his deputies. All property to be sold at auction sales may be inspected.

(Prior code § 5500.38; Ord. 1068, 07/20/54)

A person shall not sell at public auction any goods, wares and merchandise from a private residence except goods, wares, and merchandise belonging to the resident of such house and used as or a part of the furnishings of such residence.

(Prior code § 5500.39; Ord. 1068, 07/20/54)

No auctioneer shall cry a sale unless he or the party conducting such sale has a License, and no person shall advertise or solicit for the sale of any property at public auction sale unless such person is employed by a duly Licensed auctioneer.

No person shall advertise as an auctioneer in any newspaper, circular or form letter, or on any billboard, sign card, label or other advertising medium, unless such person is in possession of an unsuspended, unrevoked and unexpired auctioneer's License as required by the provisions of this chapter.

(Prior code § 5500.40; Ord. 1068, 07/20/54)

No auctioneer or person shall ring a bell or cause or permit the same to be rung or cause any loud noises in or about the front of the Premises where there is conducted an auction sale before, after or during such sale.

(Prior code § 5500.41; Ord. 1068, 07/20/54)

No person shall make a false bid or any other bid than a bona fide bid at any auction sale, act as a by- bidder, or what is commonly known as a "capper", "booster", or "shiller" at any auction sale, or offer or make false bids on any property at any auction sale, in order in any manner to stimulate such sale by any deceit or misrepresentation in the making of bids or offers for the purchase of any property held or offered therein for sale.

(Prior code § 5500.42; Ord. 1068, 07/20/54)

Any person who has a permit as an auctioneer may employ agents or employees to offer property for sale at public auction at the Premises occupied by auctioneer for such purposes and on his own behalf only.

(Prior code § 5500.43; Ord. 1068, 07/20/54)