[HISTORY: Adopted by the Borough Council
of the Borough of Moosic as indicated in article histories. Amendments
noted where applicable.]
[Adopted 1-5-2009 by Ord. No. 8-2009]
As used in this article, the following terms
shall have the meanings indicated:
The Borough of Moosic.
Includes, but shall not be limited to, all sales advertised,
represented, or held forth under the designation of "quitting business,"
"going out of business," "discontinuance of business," "selling out,"
"liquidation," "lost our lease," "must vacate," "forced out," "removal,"
"branch store-discontinuance sale," "building coming down," "end,"
"final days," "last days," "lease expires," "we-give-up sale," "we-quit
sale," "warehouse closing sale," "warehouse removal sale," "reorganization
sale," and any other advertising or designation by any other expression
or characterization similar to any of the foregoing, and giving notice
to the public that the sale will precede the abandonment of a business
location.
Includes, but shall not limited to, all sales, advertised,
represented or held forth under the designation of "adjuster's sale,"
"administrator's sale," "assignee's 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,"
and any other advertising or designation by any other expression or
characterization similar to any of the foregoing, and conveying the
same meaning and giving notice to the public of a sale resulting from
death, business failure, or other adversity.
Any individual, partnership, association, firm or corporation.
Includes, but shall 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," and any other advertising or designation by any other expression
or characterization similar to any of the foregoing, and giving notice
to the public that the sale will precede the abandonment of a business
location.
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:
A.
Any person desiring to conduct a sale regulated by
this article shall make a written application under oath to the Secretary
of the Borough.
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.
All applications for a licensed sale regulated by
this article shall set forth and contain the following information:
(1)
The name and address of the applicant, who must be
the true owner of the goods, wares or merchandise to be sold, and,
if the applicant is a partnership, the names and addresses of all
partners, or, if the applicant is a corporation or association, the
date and place of incorporation or organization, the address of the
principal office within the commonwealth and the names and addresses
of all the officers of the applicant.
(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 and
the reasons why the name is truthfully descriptive of the sale.
(8)
A statement that the business is to be terminated
permanently or reopened at another location; the location of the premises
at which the business is to be moved if 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 the applicant's records, which inventory shall:
(a)
Itemize the goods 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 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)
Include a statement of the total retail value
of the inventory of goods, wares, and merchandise to be offered at
such sale based on the inventory used for the 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, he shall attach
to the said application certified copies of the bill of sale and all
other documents connected with such transfer obtained by him 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, he shall attach to the application certified copies
of the bill of sale and the official appraisal made by the trustee,
receiver, assignee for benefit of creditor, referee in bankruptcy,
or the personal representative of a decedent.
(12)
A statement that no goods will be added to the
inventory after the application is made.
(13)
A statement that all goods included in such
inventory have been purchased by the applicant for resale on bona
fide orders without cancellation privileges and that said inventory
comprises no goods purchased on consignment.
(14)
A statement that no merchandise listed in the
inventory has been the subject of a licensed sale conducted within
one year prior to the date of the application, unless such merchandise
was damaged by fire, smoke, or water while in the possession of the
applicant.
A.
The provisions of this article shall not apply to
or affect the following persons:
(1)
Persons acting pursuant to an order or process of
a court of competent jurisdiction;
(2)
Persons who are required to file an accounting with
a court of competent jurisdiction;
(3)
Persons acting in accordance with their powers and
duties as public officers, such as sheriffs, constables and marshals;
(4)
Any publisher or employee of a newspaper or 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 are not being
complied with.
B.
The provisions of this article shall not apply to
any sale advertised as an "alteration sale," "remodeling sale," "clearance
sale," "surplus stock liquidation sale," or "special purchase sale."
A.
No license shall be issued unless there is filed with
the Secretary of the Borough a bond payable to the Commonwealth of
Pennsylvania conditioned upon the faithful observance of all the provisions
of this article, and the indemnifying of any purchaser at such sale
who suffers any loss by reason of misrepresentation made in connection
with such sale, and for the payment to any municipality or the commonwealth
of all taxes due and owing or which may become due, and authorizing
actions thereunder by the Borough and by any purchaser at such sale
for damage or loss suffered by him by reason of any misrepresentation
made in connection with such sale; provided, however, that the aggregate
liability of the surety for all breaches of the conditions of the
bond shall in no event exceed the amount of the said bond.
C.
Said bond shall be approved as to form and sufficiency
by the Borough Solicitor and by the Borough Council.
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 the licensed store 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 obtained, and no goods, wares
or merchandise shall be brought from any other store and placed on
sale at the store licensed to conduct a sale hereunder.
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 for a sale conducted pursuant to this article, shall
be unlawful and shall void any license issued to conduct a sale pursuant
to this article, and such license shall be revoked.
B.
In the case of a sale licensed under this article
conducted by the applicant in addition to the applicant's conducting
a business of selling other goods, wares or merchandise not included
in the inventory accompanying the application, the goods 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 may be readily distinguished from other
stocks and their identity readily ascertained. Any commingling of
such goods with other stocks of the licensee in such a manner as to
cause the goods to lose their separate identity, either on display
or in advertising, shall be unlawful and shall void any license issued
to conduct such a sale pursuant to this article, and such license
shall be revoked.
A.
Denial of license. Upon receipt of the application,
the Secretary of the Borough, in his/her discretion, may make or cause
to be made an examination, or order an investigation, of the applicant
and 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 are found by him/her
to exist:
(1)
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 three months prior to the date of the application,
or, if the applicant is a partnership, corporation or association,
controlling interest in the corporation or association was 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
this commonwealth, his or her heirs, distributees, devisees or 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 whereupon it is being conducted
has been condemned or taken for purposes of urban renewal or development
or because the premises must be vacated because of legal or judicial
proceedings.
(2)
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.
(3)
That the inventory contains goods, wares or merchandise
not purchased by the applicant for resale on bona fide orders without
cancellation privileges.
(4)
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 consignee's
possession.
(5)
That the applicant, except in the case of an application
for a license to conduct a sale of goods damaged by fire, smoke, or
water, or a defunct business sale, either as owner, partner, officer
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 at the particular location for which
the license is sought, or, within one year prior to the date of the
filing of the application, has conducted a sale in connection with
which he 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.
(6)
That the applicant has within one year prior to the
filing of the application been convicted of a violation of this article.
(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 the inventory contains goods, wares or merchandise
purchased by the applicant or added to his stock in contemplation
of such sale and for the purpose of selling the same at such sale.
For this purpose any unusual purchase or addition to the stock of
such goods, wares and merchandise made within 90 days prior to the
date of the filing of such application 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
false.
B.
Revocation of license. Upon a written and signed complaint
being filed with the Secretary of the Borough by a resident of the
Borough, or a resident of any adjoining municipality or township,
or upon the initiative of such Secretary after making an investigation,
the Secretary shall revoke any license granted under the provisions
of this article if he/she shall determine:
(1)
That any sale by the applicant is conducted in violation
of any provision of this article.
(2)
That the applicant has made any material misstatement
in his application for said license.
(3)
That the applicant has failed to include in the inventory
required by the provisions of this article the goods, wares or merchandise
required to be contained in such inventory.
(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.
(5)
That the applicant made or permitted to be made any
false, misleading or deceptive statements in advertising said sale,
whether written or oral, or in displaying, ticketing, or pricing goods,
wares or merchandise offered for sale.
Any applicant for a license who is aggrieved
by the denial, refusal or revocation of a license may appeal within
five days from the date of denial, refusal or revocation to the Court
of Common Pleas of Lackawanna County, the county in which the license
is sought. The appeal shall be upon a petition of the applicant for
an injunction prohibiting the denial, refusal or revocation of a license.
A copy of such appeal shall be served upon the Secretary of the Borough
who has refused, denied or revoked the license. The Court shall hear
the application for an injunction expeditiously at a time as it shall
fix of which notice shall be given to the Secretary of the Borough
from whose refusal, denial or revocation of a license the appeal has
been taken. The Court shall either sustain the denial or revocation
or refusal of the license or order the issuance of the license to
the applicant.
A.
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 are to be sold, so that the public may
be informed of the facts relating to the goods before purchasing same.
B.
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 a period of no more than 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 listed in the inventory have not been disposed of and that
no new goods have been or will be added to the inventory previously
filed pursuant to this article by purchase or acquisition, on consignment
or otherwise. The application for renewal shall be made not more than
10 days prior to the time of the expiration of the license and shall
contain a new inventory of the goods remaining on hand at the time
the application for renewal is made, which new inventory shall be
prepared and furnished in the same manner and form as the original
inventory. The Secretary of the Borough where such sale is to be conducted
shall receive from the applicant for such license, upon the granting
thereof, a fee of $50 and, upon the renewal thereof, a fee of $100.
The applicant shall not be entitled to a refund of the fee paid if
said application is refused, denied or revoked.
The 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 or 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 one year of the termination of the sale, shall constitute a
violation of this article. Every day in which business is conducted
within the prohibited period of one year shall constitute a separate
violation of this article.
A.
Suitable books and records concerning said sale shall
be kept by the licensee for the duration of the licensed sale, and
for one year thereafter, and shall be open to inspection by the Treasurer
or the Secretary or his/her duly authorized representative.
B.
Upon the termination of a sale licensed hereunder,
the applicant shall, within 30 days of such termination, file a statement
with the Secretary of the Borough in which the sale was held, stating:
Upon the complaint of any person, the Common
Pleas Court of the county wherein a violation of this article occurred
shall have jurisdiction in equity to restrain and enjoin any act forbidden
or declared illegal by any provision of this article.
Any person violating any provision of this article
shall, upon conviction thereof in a summary proceeding, be sentenced
to pay a fine of not more than $100 or to imprisonment for a term
not exceeding 30 days. Each day any sale is conducted in violation
of this article shall be a separate violation of this article. The
right to appeal from such conviction shall exist as in other cases
of summary proceedings.
