[HISTORY: Adopted by the Common Council of the City of Cortland
as indicated in article histories. Amendments noted where applicable.]
[Adopted 2-23-1971 by Ord. No. 1971-2 (Ch. 10, Art. III,
of the 1969 Code of Ordinances)]
It is hereby determined and declared that sales to be licensed
and regulated pursuant to the provisions of this article have often
been conducted and advertised in such a manner as to mislead and defraud
the public and otherwise to result in harm to the public interest.
Such fraud and imposition on the public has included, by way of partial
enumeration only: The misrepresentation of the condition or necessity
which is the occasion of such sale; the misrepresentation of the identity
of the person conducting such sale, and the name and style in which
such sale is to be conducted; the misrepresentation that the goods
offered at such sale are selling at sacrifice prices; the misrepresentation
that the operator of the sale is selling merchandise on hand at the
time when the necessity, which is the occasion of such sale, arose,
when in fact they are replenishing their stock with additional merchandise
both prior to the commencement and during the conduct of such sale
so as to foist upon the public such added merchandise as though it
were part of the original stock; and the excessive valuation and misrepresentation
of the quality, former price and ownership of the goods to be sold
at such sale. In order to prevent such fraud and imposition, the public
interest requires the regulation of such sales and duration and conduct
thereof; and the public interest, therefore requires that no such
sale should be conducted without a license or otherwise in accordance
with this article.
As used in this article, the following terms shall have the
meanings indicated:
Includes, but not be limited to, all sales advertised, represented,
or held forth under the designation of "quitting business," "going
out of business," "discontinuance of business," "closing out," "selling
out," "liquidation," "lost our lease," "must vacate," "forced out,"
"removal," "branch store discontinuance sale," "building coming down,"
"end," "final days," "final clearance," "last days," "lease expires,"
"we give up sale," "we quit sale," "warehouse closing sale," "warehouse
removal sale," "reorganization sale," or any other advertising or
designation by any other expression or characterization similar to
any of the foregoing giving notice to the public that the sale will
precede the abandonment of a business location.
Includes, but not be limited to, all sales advertised, represented
or held forth under the designation of "adjuster's sale," "administrator's
sale," "assignee's sale," "bankrupt sale," "bankrupt stock sale,"
"benefit of administrator's sale," "benefit of creditor's sale," "benefit
of trustee's sale," "creditor's committee sale," "creditor's sale,"
"executor's sale," "insolvent sale," "mortgage sale," "receiver's
sale," "trustee's sale," or any other advertising or designation by
any other expression or characterization similar to any of the foregoing
conveying the same meaning or giving notice to the public of a sale
resulting from death, business failure, or other adversity.
Any person granted a license pursuant to the provisions of
this article.
Includes, but not be limited to, all sales advertised, represented
or held forth under the designation of "fire sale," "smoke damage
sale," "water damage sale," "flood damage sale," "insurance sale,"
or any other advertising or designation by any other expression or
characterization similar to any of the foregoing giving notice to
the public that the goods, wares or merchandise offered for sale have
been damaged.
Any purchase of goods, wares or merchandise during the 90
days preceding the application for a license, the total value of which
is at least 25% greater than the purchases made by the applicant for
a like ninety-day period during the year next preceding the year in
which the application is made or the total value of which is at least
25% greater than the purchases made by the applicant for any ninety-day
period if the applicant has been in business for less than one year.
It shall be unlawful for any person to advertise or hold out
by any means that the sale of any goods, wares or merchandise to the
public is a "closing out sale," "a sale of goods damaged by fire,
smoke or water," or a "defunct business sale."
A.
Any person desiring to conduct any sale as defined in § 233-2 shall make a written application under oath to the City Clerk.
B.
If the application is for a "closing out sale" or a "defunct business
sale," it shall be filed at least 15 days prior to the date on which
such sale is to commence.
C.
If the application is for a "sale of goods damaged by fire, smoke
or water," it may be made at any time prior to the date on which such
sale is to commence.
D.
Such application shall set forth and contain the following information:
(1)
The name and address of the applicant, whether the applicant is the
true owner of the goods, wares or merchandise to be sold, and if the
applicant be a partnership, the names and addresses of all partners,
or if the applicant be a corporation or association, the date and
place of incorporation or organization, the address of the principal
office within the state, the names and addresses of all the officers
of the applicant and whether controlling interest in the corporation
or association was transferred within six months prior to the date
of the filing of the application.
(2)
The name and address of the person or persons who will be in charge
and responsible for the conduct of such sale.
(3)
The exact address of the place at which the proposed sale is to be
conducted and the length of time the applicant has been engaged in
business at such location.
(4)
The date on which it is proposed to begin the sale.
(5)
The nature of the occupancy where such sale is to be held, whether
by lease or otherwise, and the effective date of termination of such
occupancy.
(6)
The reason for the urgent and expeditious disposal of the goods,
wares or merchandise to be offered at such sale.
(7)
A statement of the descriptive name of the sale.
(8)
If the application is for a "closing out sale" or a "defunct business
sale," a statement whether the business is to be terminated permanently
or reopened at another location; the location of the premises at which
the business is to be reopened; whether the applicant intends to resume
the operation of the business upon the termination of the sale; and
the name or designation under which such business is to be resumed.
(9)
A full, complete, detailed, and itemized inventory of the goods,
wares, and merchandise to be offered at such sale as disclosed by
applicant's records, which inventory shall:
(a)
Itemize the goods, wares and merchandise to be offered for sale
and contain sufficient information concerning each item, including
quantity, make, brand name, model and manufacturer's number, if any,
to clearly identify it;
(b)
List separately any goods, wares and merchandise to be offered
for sale which were purchased and received during a ninety-day period
immediately prior to the date of making application for the license;
(c)
List the total retail value of the inventory of goods, wares
and merchandise to be offered at such sale based on the inventory
used for applicant's most recent federal income tax return adjusted
for sales and purchases.
(10)
If the application is for a license to conduct a "sale of goods
damaged by fire, smoke, or water" and the applicant was not the owner
at the time when the goods, wares and merchandise to be offered at
the contemplated sale were damaged, they shall attach to the said
application copies of the bill of sale and all other documents connected
with such transfer obtained by tnem from the previous owner of such
goods, wares and merchandise.
(11)
If the application is for a license to conduct a "defunct business
sale," and the applicant was not the owner of the goods, wares and
merchandise to be offered at the contemplated sale at the time of
occurrence of the circumstances warranting the termination of such
business, they shall attach to the application copies of the bill
of sale and the official appraisal made by the trustee, receiver,
assignee for benefit of creditors, referee in bankruptcy, or the personal
representative of a decedent.
(12)
A statement that no goods, wares and merchandise will be added
to the inventory after the application is made.
(13)
A statement that all goods, wares and merchandise included in
such inventory have been purchased by the applicant for resale on
orders without cancellation privileges and that said inventory comprises
no goods, wares and merchandise purchased on consignment.
(14)
A statement that no goods, wares and merchandise listed in the
inventory have been the subject of a licensed sale conducted within
one year prior to the date of the application, unless they were damaged
by fire, smoke, or water while in the possession of the applicant.
E.
Upon compliance with the foregoing and subject to the provisions of a Subsection A of § 233-8, the City Clerk shall within 48 hours after submission of the application to it [tnem], exclusive of Saturdays, Sundays and public holidays, issue a license to conduct the sale which is the subject of the application.
The provisions of this article shall not apply to any sale advertised
as an "alteration sale," "remodeling sale," "clearance sale," "surplus
stock liquidation sale," "floor sale," "inventory reduction sale,"
"special purchase sale," or any other advertising or designation by
any other expression or characterization similar to any of the foregoing
giving notice to the public that the sale will not precede the abandonment
of a business location, nor shall this article apply to the following
persons:
A.
Persons acting pursuant to an order or process of a court of competent
jurisdiction;
B.
Persons who are required to file an accounting with a court of competent
jurisdiction;
C.
Persons acting in accordance with their powers and duties as public
officers;
D.
Any publisher or employee of a newspaper, magazine, or any operator
or employee of a radio or television broadcasting station, who publishes
or broadcasts any such advertisement in good faith without knowledge
of its false, deceptive and misleading character, or without knowledge
that the provisions of this article have not been complied with.
E.
Any duly licensed auctioneer, selling at auction;
F.
Any insurance corporation, or any association, firm or corporation,
the controlling interest in which is owned by any insurance corporation
or corporations, which, pursuant to the terms of a policy or policies
of insurance, acquires title in or to any goods, wares or merchandise
damaged by fire, smoke, water or otherwise, and which advertises and
sells such goods, wares and merchandise as salvage.
If the applicant for a license hereunder owns, conducts or operates
more than one store, or a warehouse in connection with such store
or stores, the license issued will apply only to the one store or
warehouse for which it was issued, and no other store, branch or warehouse
may advertise or represent in any way that it is cooperating with
or participating in any way in the licensed sale, nor shall a store
licensed pursuant to this article or any person advertise or represent
that any other store or warehouse is cooperating with or participating
in the licensed sale. The licensed sale conducted by any store of
a chain or group of stores shall be conducted solely at the location
of the store for which the license was issued and no goods, wares
or merchandise shall be brought from any other store and placed on
sale at the store licensed pursuant to this article.
A.
Any substitution for or addition to goods described in an inventory
filed pursuant to this article, or any change in the time or place
of a sale conducted pursuant thereto, shall be unlawful and any license
issued for such sale shall thereupon become void.
B.
Where an applicant, conducting a sale licensed under this article,
also conducts a business of selling other goods, wares or merchandise
not included in the inventory accompanying the application, the goods,
wares and merchandise to be sold at such sale shall be clearly and
distinctly segregated, marked or identified, and advertised, if at
all, so that, both on display and in advertising, such goods, wares
and merchandise may be readily distinguished from other goods, wares
and merchandise and their identity readily ascertained. Any commingling
of such goods, wares and merchandise with other goods, wares and merchandise
of the licensee in such a manner as to cause them to lose their separate
identity, either on display or in advertising, shall be unlawful and
any license issued pursuant to such sale shall thereupon become void.
A.
Upon receipt of the application, the City Clerk may make or cause
to be made an examination into any or all the facts contained in the
application and inventory in relation to the proposed sale. A license
shall be denied or refused if any one or more of the following facts
or circumstances is found to exist:
(1)
That the applicant is not the true owner of the goods, wares and
merchandise to be sold.
(2)
That the applicant has not been the owner of the business advertised
or described in the application for a license hereunder for a period
of at least six months prior to the date of the application, or, if
the applicant be a corporation or association, controlling interest
in the corporation or association had been transferred within six
months prior to the date of the application for a license hereunder,
except:
(a)
Where the application is for a license for a "sale of goods
damaged by fire, smoke, or water," or a "defunct business sale," and
the inventory listed in the application contains only those goods,
wares or merchandise which were on the premises at the time of the
occurrence of the circumstances warranting the granting of a license
hereunder;
(b)
Upon the death of a person doing business in the state, the
representatives of their estate, or their heirs, distributees, advisees,
legatees, or their successors and assignees, shall have the right
to apply at any time for a license hereunder;
(c)
Where a business is required or compelled to be discontinued
because the premises upon which it is being conducted have been taken
by eminent domain or because the premises must be vacated pursuant
to legal or judicial proceedings.
(3)
That in the case of a "closing out sale," the applicant, either as
owner, partner, member of an association, or principal stockholder
of a corporation, was granted a prior license hereunder within one
year preceding the date of the filing of the application, or the applicant,
within one year prior to the date of filing of the application, has
conducted a sale in connection with which they advertised or represented
that the entire business conducted at the particular location for
which the license is sought was to be closed out or terminated.
(4)
That the inventory contains goods, wares or merchandise not purchased
by the applicant for resale on bona fide orders without cancellation
privileges.
(5)
That the inventory contains goods, wares or merchandise purchased
by the applicant on consignment, except if the consigned goods, wares
or merchandise have been damaged while in the applicant's actual possession.
(6)
That the applicant has within one year prior to the filing of the
application been convicted of a violation of this act.
(7)
That the goods, wares or merchandise as described in the inventory
were transferred or assigned to the applicant prior to the date of
the filing of the application and that said transfer or assignment
was not made for a valuable and adequate consideration.
(8)
That in the case of a "closing out sale" or a "defunct business sale,"
the inventory contains goods, wares or merchandise purchased by the
applicant or added to their stock in contemplation of such sale and
for the purpose of selling the same at such sale. Any unusual purchase
or addition shall be presumptive evidence that such purchase or additions
were made in contemplation of such sale and for the purpose of selling
the same at such sale.
(9)
That any representation made in the application is knowingly false.
B.
Revocation. The licensing authority shall revoke any license granted
under the provisions of this article if, after investigation, it shall
determine:
(1)
That any sale by the applicant has been or is being conducted in
violation of any provisions of this article; or;
(2)
That the applicant has made any material misstatements in their application
for said license; or
(3)
That the applicant has knowingly failed to include in the inventory,
filed with their application, all goods, wares or merchandise required
to be contained in such inventory; or
(4)
That the applicant has added or permitted to be added to said sale
or offered or permitted to be offered at said sale, any goods, wares
or merchandise not described in the original application and inventory;
or
(5)
That the applicant made or permitted to be made any false, misleading
or deceptive statements, whether writ-ten or oral, in advertising
said sale, or in displaying, ticketing, or pricing goods, wares or
merchandise offered for sale.
C.
Any complaint filed with the licensing authority concerning any violation
of this article shall be in writing and duly verified by the complainant.
D.
If the licensing authority shall revoke any license pursuant to the provisions of Subsection B, it shall serve notice of such revocation upon the licensee within 24 hours of the revocation. Notice of revocation shall be served on the licensee in the same manner as a summons as prescribed by the Civil Practice Law and Rules or by registered or certified mail, return receipt requested. The failure of the licensee to discontinue said sale upon receipt of such notice shall constitute a violation of this article.
A copy of the application for a license to conduct a sale under
this article, including the inventory filed therewith, shall be posted
in a conspicuous place in the sales room or place where the inventoried
goods, wares or merchandise are to be sold, so that the public may
be informed of the facts relating to such goods, wares and merchandise
before purchasing them. Any advertisement or announcement published
in connection with the sale shall conspicuously show on its face the
number of the license, the date of its expiration, and if applicable,
the location where the business is to be resumed.
A license to conduct a sale issued pursuant to this article
shall be good for no more than a period of 30 consecutive calendar
days and may be renewed for one consecutive period not exceeding 30
consecutive calendar days upon the affidavit of the applicant that
the goods, wares and merchandise listed in the inventory have not
been disposed of and that no new goods, wares and merchandise have
been or will be added to the inventory previously filed pursuant to
this article by purchase, acquisition, on consignment or otherwise.
The application for renewal shall be made not more than 10 days prior
to the date of the expiration of the license and shall contain an
inventory of goods, wares and merchandise remaining on hand at the
time the application for renewal is made, which inventory shall be
prepared and furnished in the same manner and form as the original
inventory. The City Clerk shall receive from the applicant for such
license, upon the filing of an application therefor, a fee of $100,
and upon the renewal thereof, a fee of $50. The applicant shall not
be entitled to a refund of the fee paid if said application is denied
or revoked.
Opening of a business similar to the one for which the sale,
licensed pursuant to this article, was conducted, except the licensed
"sale of goods damaged by fire, smoke or water," by the person, partnership,
association, corporation, or partner of a partnership, officer of
an association or principal stockholder of a corporation, who or which
conducted the sale upon the same premises within a period of one year
of the termination of the sale shall constitute a violation of this
article, and every day in which business is conducted within such
period shall constitute a separate violation of this article.
A.
Suitable books and records concerning any sale licensed pursuant
to this article shall be kept by the licensee for the duration of
the licensed sale and one year thereafter, and shall be open for inspection
by the City Clerk.
B.
Upon the termination of a sale licensed hereunder the applicant shall,
within 30 days of such termination, file a statement with the City
Clerk stating the total retail value of the goods, wares or merchandise
not disposed of during the sale and the ultimate disposition thereof
and, if transferred to another, the name, address and business, if
any, of the transferee.
Any person violating any provision of this article shall be
guilty of a misdemeanor punishable by a fine of $500 or imprisonment
for one year or both, and each day upon which any sale is conducted
in violation of this article shall be a separate violation.
If any clause or provision of this article shall at any time
be declared to be unconstitutional, it is the expressed legislative
intent that no other section or provision hereof be thereby affected.
