Visalia Municipal Code Ch. 5.16 Close-Out, Fire and Bankruptcy Sales

For the purpose of this chapter, the following words and phrases shall have the meanings attributed to them as provided in this section:

"Advertise" means any and all means, whether verbal or written used for conveying to the public, or any part thereof, notice of the conduct of a close-out sale, fire sale, or bankruptcy sale as defined herein or notice of intention to conduct sale.

Advertising Indicating Future Change in Business Location. The definitions of bankruptcy sales, close-out sales and fire sales shall apply to any and all sales advertised in such manner as to convey to the public, or to that portion of the public to which such advertising is directed, the belief that upon disposal of the goods to be placed on sale, the business of that portion thereof being conducted at any location will cease, be removed or relocated.

"Bankruptcy sales" means any sale of or offer to sell, to the public or any part thereof, goods, wares or merchandise in stock which has been involved in any business failure or have been derived from any business which has been adjudicated bankrupt, has been closed, has been discontinued, has been liquidated, or has been placed in receivership.

"Close-out sales" means any sale of, or offer to sell, to the public or any part thereof, goods, wares or merchandise in stock, in furtherance of a declared purpose, as advertised, when such sale is anticipatory of or to avoid the termination, liquidation, revision, windup, discontinuance, removal, relocation, dissolution, closing or abandonment of a business conducted at any location.

"Fire sales" means any sale of, or offer to sell, to the public, or any part thereof, goods, wares or merchandise in stock which has been involved in any business failure or have been derived from any business which has been adjudicated bankrupt, has been closed, has been discontinued or liquidated, or has been placed in receivership.

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

"Permittee" means any individual or entity to whom a permit has been issued pursuant to this chapter. (Ord. 9517 § 1 (part), 1995: prior code § 6800)

It is unlawful for any entity to advertise or otherwise represent the public, or any part thereof, in any manner a reduction in price of any goods, wares, merchandise, service, facility or accommodation, whether such price reduction be represented in complete price figures or by percentage reduction unless the price from which the reduction is calculated is the price customarily charged by applicant for the goods, wares, merchandise, service, facility or accommodation so offered to the public. (Ord. 9517 § 1 (part), 1995: prior code § 6801)

It is unlawful for any entity to advertise or conduct a close-out sale, or bankruptcy sale, as defined in this chapter, without first obtaining a permit therefor from the collector of the city in the manner provided in this chapter. (Ord. 9517 § 1 (part), 1995: prior code § 6802)

The provisions of this chapter shall not apply to, or, or affect the following individuals/entities:

A. Individuals acting in their official capacities as public officials;

B. Individuals/entities acting pursuant to process issued by a court of competent jurisdiction;

C. Duly licensed auctioneers, selling auction;

D. Any publisher of a newspaper, magazine, or other periodical or publication, who publishes in good faith any advertisement without knowledge that compliance has not been had with the provisions of this chapter. (Ord. 9517 § 1 (part), 1995: prior code § 6803)

Any entity that has held a sale, regulated hereunder, at the same location as stated in the application within one year preceding the date of the application, shall not be granted a permit. (Ord. 9517 § 1 (part), 1995: prior code § 6804)

In the event the entity which is applying for a permit hereunder operates more than one place of business, any permit issued hereunder shall apply only to the one store for which application is made and no other store or branch shall advertise, or represent that it is cooperating with it or in any way participating in such sale, nor shall the store at which such sale is conducted advertise or represent that any other store or branch is cooperating with it or participating in any way in such sale. (Ord. 9517 § 1 (part), 1995: prior code § 6805)

Any entity desiring to advertise and conduct a sale regulated by this chapter shall make a written application therefor, under oath, accompanied by a fee in the sum of one hundred dollars ($100.00) to the collector of the city setting forth and containing the following information:

A. The true name and address of the owner of the goods, wares or merchandise to be subject of the sale;

B. The true name and address of the entity, from whom the applicant purchased the goods, wares or merchandise to be sold and the price thereof, or, if not purchased, the manner of acquisition. The price at which said goods were offered for sale to the public immediately prior to such application;

C. The address of the place where such sale is to held;

D. The nature of the occupancy of applicant of that place where the sale is to be conducted whether by lease, sublease or otherwise, and the effective date of termination of such occupancy;

E. The dates when the sale is to be conducted;

F. A full and complete statement of the facts relating to the sale, including the reason for the urgent and expeditious disposal of goods, wares or merchandise thereby, and the manner in which the sale will be conducted;

G. The means proposed to be employed in advertising such sale together with the proposed content of such advertising, if any;

H. An itemized stock list of inventory of the goods, wares and merchandise to be offered for sale, together with the cost at which the same were obtained by the owner thereof or the individual or entity conducting the 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 of articles so described, colors, sizes and otherwise, that the identity of such good with the goods listed on such inventory can be readily determined;

I. All goods included in such inventory shall have been purchased by the applicant for resale on bona fide orders without cancellation privileges in the ordinary course of business and shall not comprise goods held on consignment;

J. Such inventory shall not include goods, wares or merchandise ordered in expectation or contemplation of conducting a sale of the type regulated hereby. Any purchase or additions to the stock of goods of the entity applying for a permit hereunder shall be presumed to be a purchase made in expectation or contemplation of a sale as herein regulated. Such presumption may be rebutted by evidence that such purchases or additions were not made in expectation or contemplation thereof;

K. Such inventory shall include only goods which are, at the time of said inventory is taken and prepared, on the premises of the applicant and at the location where the sale is proposed to be conducted. (Ord. 9517 § 1 (part), 1995: prior code § 6806)

A. Upon the filing of the application for a permit as provided in this chapter, the collector shall make or cause to be made such examination, audit, or investigation of the applicant and his/her business, history and affairs in relation to the proposed sale as he/she shall deem necessary. If the collector finds that the statements in the application are true, that the inventory is complete and accurate, that the advertising proposed to be used is not false, fraudulent, deceptive or misleading in any respect, that proposed price reductions are bona fide, and that the methods proposed to be used by the applicant in conducting the sale are not such as, in his/her opinion, will work a fraud or deception upon prospective purchasers, he/she shall recommend the issuance to the applicant of a permit to conduct such sale in conformity with the provisions of this chapter; otherwise, he/she shall recommend a denial of the application. The collector may also refuse to issue a permit to the applicant because of the insufficiency of the information. The collector shall grant the applicant permission to file an amended application.

B. No permit may be issued to any applicant who has been convicted of any crime involving fraud or moral turpitude within five years preceding application. The collector also may refuse to issue a permit to any entity that has heretofore violated any provisions of any ordinance of the city regulating the conduct of sales of the type herein regulated. Upon approval of the application by the collector, the application, together with a report of the investigation made pursuant thereto shall be sent to the city manager for approval or disapproval. Upon approval of the application by the city manager, the collector shall issue a permit. In no event shall the fee of one hundred dollars ($100.00) be returned to the applicant. (Ord. 9517 § 1 (part), 1995: prior code § 6807)

Any permit issued hereunder shall be issued on the following terms:

A. The permit shall authorize the sale described in the application for a period not to exceed thirty (30) consecutive calendar days; provided, that no such sale shall commence until fifteen (15) days shall have passed since the applicant shall have filed his/her inventory with the collector; and provided further, however, that the collector, with the approval of the director of finance, may, upon application therefore, accompanied by a renewal fee of one hundred dollars ($100.00) renew said permit for a period not to exceed thirty (30) consecutive calendar days. Such application for renewal shall set forth a complete list of goods, wares or merchandise listed in the original application which remain unsold. No goods, wares or merchandise not listed in the original application may be sold pursuant to any renewal permit granted hereunder. Upon receipt of such application at once, and, if satisfied of the truth of the statements made therein shall refer the renewal application, together with the attendant investigation report, the collector shall issue a renewal applicant.

B. The permit shall authorize only the one type of sale described in the application at the location therein described.

C. The permit shall authorize only the sale of goods, wares or merchandise described in the inventory appended to the application.

D. Any permit or renewal thereof granted herein provided shall not be assignable or transferable. (Ord. 9517 § 1 (part), 1995: prior code § 6808)

Any applicant to whom a permit is to be issued under the provisions of this chapter shall submit to the collector, a corporate surety bond satisfactory to the city payable to the city in the penal sum of one thousand dollars ($1,000.00) conditioned upon compliance with the provisions of this chapter. No permit shall be issued unless and until such bond has been filed with said officer of the city. (Ord. 9517 § 1 (part), 1995: prior code § 6809)

A permittee hereunder shall:

A. Make no additions or substitutions whatever to or of the stock of goods, wares or merchandise, described in the inventory attached to the permit application during the period subsequent to the filing of the inventory and prior to termination of sale or renewal thereof herein authorized;

B. Refrain from any false, deceptive or misleading advertising;

C. Conduct such sale in strict conformity to any advertising or hold out relating thereto;

D. Keep available at the place of sale a duplicate copy of the inventory to the application, for presentation thereof to inspection officials upon request therefor;

E. At the close of business each day, the stock inventory shall be revised and made current; items on such list disposed of during such day shall be noted thereon. Suitable books and records as prescribed by the collector shall be kept by permittee and shall be open at all times to inspection by the collector, or his/her authorized representatives. (Ord. 9517 § 1 (part), 1995: prior code § 6810)

No goods, wares or merchandise shall 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. (Ord. 9517 § 1 (part), 1995: prior code § 6811)

The collector or his/her authorized representative shall have the power to revoke at any time any permit granted in accordance with the provisions of this chapter, or in such a manner as to deceive or defraud the public, if:

A. The holder of any such permit has made any material misstatement in the application for such a permit;

B. The holder of any such permit has been guilty of any fraudulent practice or practices in the conduct of the sale authorized by such permit;

C. The holder of any such permit has failed to inventory all the goods, wares or merchandise offered for sale pursuant to such permit;

D. The holder of any such permit has added or caused to be added, or permitted to be added any goods, wares or merchandise not described in the original inventory and has offered such additions for sale under permit;

E. The holder of any such permit has violated any of the provisions contained in this chapter. (Ord. 9517 § 1 (part), 1995: prior code § 6812)