[HISTORY: Adopted by the Town Board of the Town of Gates 12-6-2010 by L.L. No.
5-2010. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the
meanings indicated:
The amount a seller can expect to obtain for the merchandise
in an open market from a willing buyer.
Except as provided in Subsection B hereof, any person, corporation, partnership, limited liability corporation or any other legal entity in New York State who, either wholly or in part, engages in or operates the trade or business of buying and/or selling used goods, including but not limited to precious gems, gold, silver, platinum or other precious metals, jewelry, coins, watches, clocks, any tools, television sets, bicycles, radios, record or stereo sets, firearms, cameras and camera equipment, video equipment, furniture, appliances, toys, any electronics such as VCRs, games, CDs, CD players, computers, paging equipment, calculators and office equipment, stamps, coins, antiques and collectibles such as but not limited to Hummel figurines, military service medals, swords, automotive parts or equipment.
"Secondhand dealer" shall not be deemed to include:
Judicial sales or sales by executors or administrators.
Occasional or auction sales of household goods sold from private
homes.
Auctions of real estate.
The occasional sale, purchase or exchange of coins or stamps
by a person at his permanent residence or in any municipally owned
building who is engaged in the hobby of collecting coins or stamps
and who does not solicit the sale, purchase or exchange of such coins
or stamps to or from the general public by billboard, sign, handbill,
newspaper, magazine, radio, television, Internet or other form of
printed or electronic advertising.
Any item that has been used, exchanged and/or sold at retail
on at least one prior occasion. Used goods may also be referred to
as "secondhand goods."
A.
No individual, person, partnership or corporation, association, trust or any other type of business permitted under the laws of the State of New York shall engage in the business as a secondhand dealer without first obtaining a license from the Town Clerk of the Town of Gates. Advertising in any print, electronic media or by sign that any of those articles or goods referred to in Subsection A of the definition of "secondhand dealer" in § 151-1 herein are being bought and sold in any location within the Town of Gates shall constitute engaging in business as a secondhand dealer for purposes of this chapter. Notwithstanding the above, any of the aforementioned entities which establish a presence within the Town for the purposes of buying and selling used or secondhand goods, with or without the use of advertising, is engaging in business as secondhand dealer for the purposes of this chapter.
B.
No person shall place or cause to be placed any advertisement for
purposes of such articles or goods or commence as a business dealing
in bought and sold secondhand goods without stating in said advertising
the license number issued to the individual or entity by the Town
of Gates.
C.
The license or a photocopy of the license shall be posted and permanently
displayed on the site of the premises at which the business is to
be conducted.
D.
In print advertisement, the license number shall appear in type no smaller than A- in the lower right-hand comer of the advertisement. In any advertisement in the electronic media, the license number shall be visually or audibly stated. Failure to state or indicate the license number shall be a violation of this chapter and shall be subject to the penalty set forth in § 151-11 of this chapter. Failure to post the license in a conspicuous place at the place of business so that it is visible to the general public or any enforcement officer or representative of the Town of Gates shall also constitute a violation of this chapter and shall be subject to the penalties set forth in § 151-11 of this chapter.
E.
Additional grounds for recommending denial of a license may be the
revocation of a prior secondhand dealers license within the last 10
years.
A.
Upon receipt of an application completed pursuant to this chapter,
the Town Clerk shall refer such application to the Chief of Police
or his designee who shall conduct an investigation of the prospective
license pursuant to this chapter for the purpose of determining the
suitability of the applicant for licensing. Said investigation shall
include but shall not be limited to the following:
(1)
The experience of the applicant in the business of purchase and sale of those articles or goods referred to in Subsection A of the definition of "secondhand dealer" in § 151-1 herein, although nothing in this section shall be construed to warrant denial of a license solely on the basis of a lack of experience.
(2)
The reputation of the applicant for fair dealing in the community
which shall be made among credible sources, which sources shall be
disclosed to the applicant in the event of a denial of any license.
(3)
Any criminal record of the applicant.
(4)
The type of operation contemplated to be conducted by the applicant, particularly whether the business is to be operated from a fixed location, whether it is to be conducted from a location primarily devoted to the purchase and sale of those articles and goods referred to in Subsection A of the definition of "secondhand dealer" in § 151-1 herein and other factors bearing upon whether the licensed business will be of a fixed and permanent nature. This section, however, shall not be construed to require denial of any license solely on the grounds that the business is not conducted from a fixed location.
B.
The Chief of Police or his designee shall complete any investigation
commenced pursuant to this chapter within 30 days of the submission
of the application to the Town Clerk, fully completed by the applicant.
C.
The Chief of Police or his designee shall, upon completion of the
investigation, recommend granting or denial of the requested license
or revocation of the conditional license to the Town Clerk, who shall
grant or deny the license or revoke the conditional license. Any recommendation
of the Chief of Police or his designee shall be in writing and, in
the case of a recommendation of denial, shall state fully and specifically
the reasons for said recommendation. If the Town Clerk accepts the
recommendation of the Chief of Police or his designee to deny the
license or to revoke the conditional license, he/she shall notify
the applicant within 10 days of such denial or revocation and forward
to the applicant a statement of the reason(s) for such denial. The
applicant shall have 10 days thereafter to request consideration by
the Clerk and may provide the Clerk with any relevant information
and response as set forth in the Clerk's notice of denial.
D.
Grounds for recommending denial of a license may include reliable
information indicating that the applicant has in the past engaged
in fraudulent or deceptive business practices in a business identical
to or similar to the business for which the applicant seeks a license
pursuant to this chapter. The license may be denied if the investigation
conducted by the Chief of Police or his designee reveals conviction
of the applicant or any of its principal officers or employees of
any crime or disorderly persons offense in which deceit or misrepresentation
is an element or any conviction of any crime or disorderly persons
offense involving theft or receiving stolen goods, whether such conviction
was as a principal, accessory before or after the fact or coconspirator.
E.
The applicant will submit fingerprints and fees to DCJS in the form
and manner prescribed by DCJS. If an applicant has been convicted
of a felony and/or misdemeanor, any decision regarding such prospective
employee's fitness for a position must be made upon a review
of the factors contained in New York State Correction Law §§ 701-703-b
and §§ 751-753.
F.
Upon receipt of the recommendation of the Chief of Police or his designee, the Town Clerk shall issue or deny the license accordingly, contingent upon the receipt from the applicant of a bond of $10,000 pursuant to § 151-7. In the event of a denial of a license by the Clerk, the applicant shall be entitled to a public hearing before the Town Board of the Town of Gates, at which time the applicant shall be permitted to introduce such evidence as may be deemed relevant to such denial. After a public hearing thereon, at which the licensee shall have an opportunity to be heard, the Town Board may sustain the decision of Town Clerk, reverse the decision of Town Clerk and direct that a license be issued or remanded to the Town Clerk for further consideration.
G.
Additional grounds for recommending denial of a license may be the
revocation of a prior secondhand dealer's license within the
last 10 years.
A.
All licensees shall keep a record book in which they will enter at
the time of purchase of any item:
(1)
A detailed description of the item, including but not limited to
identifying marks of the item, a brief description of the item, initials,
names, dates, social security numbers engraved thereon, serial numbers,
series numbers or any other information appearing calculated to set
apart the particular object purchased from others of like kind; the
name, date of birth and description of the person from whom the purchase
was made, the date the purchase was made, and the address where such
purchase was made for such item(s).
(2)
If the item is purchased by weight, the troy ounce weight of the
item.
(3)
The name of the clerk or employee of the licensees making the transaction,
legibly set forth.
(4)
The name, permanent business address and license number of the purchaser-licensee.
(5)
The name and address of the seller which shall be verified by the
proof of photo identification in the form of a drivers license, valid
drivers license, New York State nondrivers identification, military
identification, or other adequate proof of identification. Said receipt
book shall be a record kept in the regular course of business of the
licensee.
(6)
The actual price paid for the purchase of said item.
B.
The record book shall be open to inspection by any member of the
Town of Gates Police Department or any other law enforcement agency.
The record book shall be securely bound, not less than six inches
in either length or width, legibly written in the English language.
No entry in such book shall be erased, obliterated, altered or defaced.
Every secondhand dealer and his/her employee shall, at the time of
making any purchase, attach a tag or otherwise legible number and
date to each item bought and make corresponding entry to such number
in the aforementioned record book. In the event of an error, a single
red line shall be made through the entry, but not in such a way as
to prevent legibility.
C.
The dealer will have the responsibility to report any and all sales
to the Gates Police Department. The method of reporting will be determined
by the Gates Police Department.
A.
No licensee under this chapter shall sell, alter or dispose of in any way any of those articles or goods referred to in § 151-1 herein until 10 days have elapsed after the purchase of the same by such licensee. At certain times the Chief of Police may specify a list of items that must be held for longer than 10 days or certain items that may not be purchased at all by a dealer. It shall be an affirmative defense to any prosecution or administrative proceeding brought for a violation of this section if retention for the time period required were to result in a serious and substantial economic loss to the dealer or the probability of such loss was significant due to rapid and highly fluctuating market conditions, provided that the person so charged shall prove the existence of the market conditions giving rise to the aforesaid defense by a preponderance of the evidence. Market conditions, in order to be defense hereunder, must be such that financial analysts would characterize trading as at or approaching a level or occurrence so as to clearly distinguish trading conditions from normal variations and market movement in response to economic news or other events. In the event that this type of situation occurs, the secondhand dealer will notify the Gates Police Department by telephone, advising the department of the disposal. The Gates Police Department will have one hour to respond to the dealers address to view the property should the department decide to do so.
B.
No licensee under this chapter shall purchase any item covered by
this chapter from any person under the age of 17.
C.
The Town Board of the Town of Gates may, after notice and hearing,
revoke the license issued to any licensee convicted of robbery, burglary,
theft, receiving stolen goods or any other crime involving moral turpitude
after the license is granted.
D.
The licensee shall have the right to change the location of the licensed
business, provided that he notifies the Town Clerk, in writing, of
the street address of said new location.
A.
Each licensee shall deliver a bond to the Town Clerk executed by the applicant as principal with a surety company authorized to do business under the laws of the State of New York as surety. The bond, to be approved by the Town Attorney, shall be in the penal sum of $10,000 conditioned for the due and proper observance of and compliance with the provisions and requirements of all ordinances of the Town in force or which may be adopted respecting the conduct of this business and condition also that the bond shall be and remain for the benefit of any person or persons who shall receive judgment against a licensee, license under this chapter by reason of any damage sustained by any such person as a result of the operations of the licensee under this chapter, which damage shall be established by a judgment of a court of proper jurisdiction. Said bond shall contain the following language:" The obligation of this bond shall, in addition to the Town of Gates, inure be and remain for the benefit of any person who shall obtain a judgment against obligor as a result of damage sustained in the operation pursuant to any license granted under Chapter 151 of the Code of the Town of Gates."
B.
Said bond shall be kept for a minimum of one year from the date of
issuance of the license and must be renewed annually along with the
license.
The following activity shall be exempt from the requirements
of this chapter:
A.
The purchase of motor vehicles.
B.
Garage sales, basement sales, porch sales, yard sales or other such
events at which a person desires to sell or trade his personal used
items, household goods and/or furniture equipment upon his/her premises,
said premises not being a regular place of business for purchase or
sale of secondhand items; three such sales shall be conducted by the
same person or persons where upon the same premises within
one calendar year and each such sale shall not exceed 10 consecutive
days.
C.
This chapter shall not apply to the return of secondhand items for
credit, exchange or refund to the person from whom said items were
originally obtained, provided that the items were not secondhand items
when originally obtained.
No secondhand dealer shall have his place of business open for
the transaction of business, nor shall be/she purchase any secondhand
items from persons other than secondhand dealers except between the
hours of 8:00 a.m. and 10:00 p.m.
Every secondhand dealer shall keep on file a current list of
employees which shall be available to the Town of Gates Police Department
or any other law enforcement agency upon reasonable request.
A.
Any member of the Town of Gates Police Department shall have the
authority, pursuant to New York State Criminal Procedure Law, to issue
an appearance ticket subscribed by him/her directing a designated
person to appear in a designated local criminal court at a designated
future time in connection with the alleged violation of this chapter
or any order made thereunder.
B.
Any individual person, partnership or corporation, limited-liability
corporation or any other legal entity found in violation of the provisions
of this chapter shall be subject to fine not to exceed $1,000 or imprisonment
in the county jail not to exceed 90 days, or both.
C.
In addition to the above-provided penalties and punishment, the Town
of Gates also may maintain an action or proceeding in the name of
the Town of Gates in a court of competent jurisdiction to compel compliance
with the provisions of this chapter or to restrain by injunction any
offense against this chapter.
D.
Any violation of this chapter is grounds for revocation of any license
granted hereunder. Before revoking any license granted herein, the
Town Clerk shall give the licensee 10 days' notice by certified
mail to the licensee's address on the application of a hearing
before the Town Clerk. The Town Clerk shall consider any relevant
evidence and then, at the Clerk's sole discretion, based upon
the violation, may revoke any license granted under the law.
This Local Law shall take effect February 1, 2011, subject to
filing with the New York Secretary of State in accordance with the
Municipal Home Rule Law.
