[HISTORY: Comes from L.L.
No. 101-1979, adopted 11-27-1979, effective 12-7-1979.]
A.
Pursuant to the provisions of the New York State Constitution, the Municipal Home Rule Law, the Suburban Town Law, the General Municipal Law and the Town Law, all as amended, the Town Board of the Town of Hempstead is empowered to enact local laws and ordinances licensing and regulating occupations and the conduct of business to protect and promote the health, safety, morals or the general welfare of the community. Therefore, the Town Board of the Town of Hempstead enacts Chapter 113 entitled "Control and Regulation of Secondhand Dealers" into the Code of the Town of Hempstead.
B.
There is no control in the Town of Hempstead governing the activities
of those persons engaged in the business of buying and selling secondhand
merchandise. Some of these dealers represent to those persons involved
in crime an opportunity to dispose of stolen property. If the law
enforcement agencies are to function, a local law regulating these
secondhand establishments is necessary. The ease with which some secondhand
dealers buy and dispose of personal property indicates the need for
the enactment of laws to control and regulate their everyday business
transactions. A few of the dealers require scant, or very often no
identification when purchasing personal property, and rarely, if ever,
is proof of ownership requested. It is a fact that secondhand dealers
are not required at the present time to forward reports of acquired
used property to any of the police agencies. With the passage of this
chapter, reports would be required from dealers in secondhand jewelry,
marine equipment, antiques, cameras, coins, stamps, musical instruments,
firearms and televisions as well as stereophonic equipment. As a result
of the reporting, there would be a marked increase in the number of
restitutions for the sole reason that now these merchants would be
committed to keeping accurate records of the used property purchased
and disposed of by forwarding the proper reports to the police, on
a daily basis, at the close of each business day. The problem involving
stolen property is not confined solely to the small dealers. Some
of the very largest retailers in the nation, those whose stores are
located in the Town of Hempstead, buy large quantities of old gold,
jewelry and diamonds and forward not one single report of purchase
to any police agency in the county. The scope for the exploitation
of stolen property is further broadened due to the operations of these
merchandising giants. For small or large business enterprises to be
allowed to continue to operate without laws to control and regulate
the purchase of secondhand articles not only jeopardizes the property
rights of many people but extremely hampers the police agencies in
their efforts to recover stolen property and identify suspects.
C.
The security involved in the handling of secondhand property has
become a matter of concern to the police agencies charged with the
duty and responsibility therein. The increase in the incidence of
property thefts, the widespread use of alcohol and drugs, the decline
in the value of the dollar, the increase in the price of gold and
diamonds and the specter of inflation where barter becomes more of
a reality, all point to the imperative that the best interests of
the people of the Town of Hempstead would be served by the enactment
of this chapter. This chapter will ensure a dramatic rise in the percentage
of the stolen property recovered and an increase in the probability
that the general public will receive a fairer deal in its business
transactions and will better the means to allow the police agencies
to obtain more information necessary to apprehend perpetrators of
crimes associated with the theft of property. Thereby the public health,
morals and general welfare of the Town of Hempstead will be protected
and promoted.
A.
DEALER IN SECONDHAND ARTICLES
(1)
(2)
(3)
Definitions. As used in this chapter, the following terms shall have
the meanings indicated:
Any person who in any way as principal, broker or agent:
Deals in the commercial purchase or sale of secondhand articles
for any purpose and of whatever nature, including but not limited
to old gold or other precious metals, coins, stamps or currency, firearms,
rifles, shotguns, cameras, business machines, musical instruments,
outboard motors or electronic equipment.
Accepts or receives secondhand articles as returns of merchandise
or in exchange for or for credits on any other articles or merchandise.
Deals in the commercial purchase or sale of pawnbroker tickets
or other evidence of pledged articles.
B.
Exceptions. Nothing contained in this chapter shall be construed
to apply to:
(1)
Automobiles, pianos, books, magazines, rugs, tapestries, artists'
burlaps, paintings, sculpture, drawings, etchings and engravings.
(2)
The first purchase or sale in the country of any imported secondhand
article.
(3)
The acceptance or receipt of merchandise in a new condition as a
return, exchange or for credit or refund if such merchandise was originally
purchased as new merchandise from the person accepting or receiving
the same, nor to any resale of such merchandise as new merchandise,
nor to the first subsequent nonretail or exchange of such merchandise
as used merchandise.
(4)
The acceptance or receipt of merchandise in a used condition as a
return, trade-in or exchange or for credit or refund if such merchandise
was originally purchased as new merchandise from the person accepting
or receiving the same, nor to the first subsequent nonretail sale
or exchange of such merchandise.
(5)
The first sale, at retail, of merchandise which has been rebuilt
by the manufacturer or vendor originally manufacturing it, or the
licensed agents thereof, and sold as factory-rebuilt merchandise.
(6)
A thrift shop, as defined to be so classified under the United States
Internal Revenue Code, entitled to an exemption as an eleemosynary
corporation or institution.
(7)
Antiques, which shall mean secondhand articles over 50 years of age,
having a value of less than $250 and void of any means of identification.
"Identification" shall mean articles which are serialized, monogrammed,
initialed or distinctly marked.
C.
Proof. The burden of proof that an article was originally purchased
from the person accepting or receiving it, that it was the first subsequent
sale or exchange thereof to a person other than an ultimate consumer
or that it was a first sale at retail of such factory-rebuilt merchandise
shall be upon the person asserting the same. Evidence of an existing
trade practice in the Town of Hempstead, if any, shall be admissible
for the purpose of determining whether or not merchandise is in new
or used condition.
D.
Interpretation. In interpreting and applying the provisions of this
chapter, the rule of interpretation applicable to remedial legislation
shall be used so that the spirit and intent of this chapter shall
be observed. All provisions shall be:
E.
Severability. If any clause, sentence, section, paragraph or provision
of this chapter shall be adjudged by a court of competent jurisdiction
to be invalid, such judgment shall not affect, impair or invalidate
the remainder of this chapter but shall be confined in its operation
to the clause, sentence, section, paragraph or provision directly
involved in the controversy in which such judgment shall have been
rendered.
F.
Disclaimer of liability. This chapter shall not create any liability
on the part of the Town of Hempstead, its officers, agents or employees,
or the Nassau County Police Department, its officers, agents or employees,
for any act or damage caused as a result of reliance on this chapter
or any administrative decision lawfully made hereunder.
A.
It shall be unlawful for any person to act as a dealer in secondhand
articles without a license therefor.
B.
There shall be three types of licenses: general license, management
license and exposition license.
(1)
A general license shall authorize the licensee to act as a secondhand dealer with respect to all articles, other than secondhand automobiles, within the Town of Hempstead during the license period specified in § 113-4D of this chapter.
(2)
A management license shall authorize the licensee who is not a dealer
in antiques or unique secondhand articles to operate and manage an
antique or unique secondhand articles exposition where such antiques
or unique secondhand articles are sold at any fair, show or exhibit
or any place where this merchandise is offered for sale within the
Town of Hempstead during a period of one month from the date of issuance
of such license.
(3)
An exposition license shall authorize a dealer in antiques or unique
secondhand articles who maintains no place of business within the
Town of Hempstead to exhibit and sell such articles at any fair, show
or exposition within the Town of Hempstead during a period of one
month from the date of issuance of such license.
A.
Each dealer securing a general license shall furnish a bond to the
Town of Hempstead, with sufficient surety to be approved by the Town
Clerk, in the penal sum of $2,000, conditioned for the due observance
of the law relating to such dealers.
B.
Each manager of an antique or unique articles exposition shall furnish
a bond to the Town of Hempstead, with sufficient surety to be approved
by the Town Clerk, in the penal sum of $2,000, conditioned for the
due observance of the law relating to dealers who are exhibitors at
the exposition.
D.
All general licenses shall expire on the first day of April next
succeeding the date of issuance thereof, unless sooner revoked or
suspended. A new application for a license must be made yearly if
the licensee desires to continue such activity.
E.
All licenses shall be placed and at all times displayed in a conspicuous
place at the licensee's place of activity or business for which it
is issued.
F.
All licenses are personal with the licensees. It does not go with
title to the land nor may it be sold, assigned, transferred or disposed
of.
G.
Any license may be revoked or suspended by the Town Board of the Town of Hempstead after a hearing thereon pursuant to the provisions of § 113-18 herein, at which time the licensee shall have an opportunity to be heard.
H.
The granting, refusal, revocation or suspension of any license by
the Town Board shall be subject to review by certiorari after the
applicant or licensee has exhausted all administrative remedies.
Applicants for a license under this chapter must file with the
Town Clerk of the Town of Hempstead an application, supplied by the
Town Clerk, containing the following information:
A.
Name and description of the applicant. Individuals operating under
a trade name must present a certified copy of the trade name certificate
filed in the Nassau County Clerk's office. A partnership conducting
business, whether or not under a trade name, must submit a certified
copy of the partnership certificate filed in the Nassau County Clerk's
office when the partnership was formed. A corporation must furnish
a photostatic copy of the filing receipt for the certificate of incorporation
from the New York State Secretary of State. A corporation from outside
New York State must furnish a photostatic copy of its application
for authority to do business in New York State from the New York State
Secretary of State.
B.
Address of applicant (local and legal).
C.
That the applicant is of legal age.
D.
That the applicant is a citizen of the United States and whether
citizenship was obtained by birth or naturalization. If by naturalization,
the date and place where obtained shall be included. The naturalization
certificate or permanent Board of Elections personal registration
card may be used as proof of citizenship.
E.
A statement as to whether or not the applicant has ever been convicted
of or is now under charge of any crime, misdemeanor or violation of
any municipal ordinance, the nature of the offense and the punishment
or penalty assessed therefor and such other facts or evidence as is
deemed necessary to establish that the applicant is a person fit and
capable of properly conducting the activity or business for which
the license is sought.
F.
A description of the exact type of business the applicant intends
to conduct.
G.
The name and address of the owner or owners of the land and the nature
of the right of occupancy of the applicant to the use of such land.
H.
Two photographs of the applicant, taken not more than 60 days prior
to the filing of the application, which photographs shall be two by
two inches, showing the head and shoulders of the applicant in a clear
and distinguishing manner. Two photographs and fingerprints are required
of each individual applicant, and two photographs and fingerprints
are required of each partner. No photographs are required of corporate
applicants, but all officers must be fingerprinted, as well as any
stockholder of 10% or more of the stock.
I.
If the applicant is a corporation, the name, address and title of
the officer of the corporation upon whom process or other legal notice
may be served.
J.
A copy of the applicant's fingerprints shall be mailed to the Division
of Criminal Justice Services, Albany, New York, requesting a fingerprint
search. The Town Clerk shall secure from the applicant the required
fee in the form of a check or money order made payable to the New
York State Division of Criminal Justice Services.
A.
Upon receipt of the license application and upon the approval by
the Town Clerk of the Town of Hempstead and the payment of the prescribed
fees by and bonds required of the applicant, the Town Clerk shall
prepare and deliver to the applicant his license.
B.
Every license issued hereunder shall be signed at the direction and
in the name of the Town Clerk and sealed with the Seal of the Town
of Hempstead.
C.
The Town Clerk shall keep a record of all licenses issued as well
as any other matters herein described.
D.
No license shall be granted under this chapter to any dealer in secondhand
articles:
(1)
Who has been convicted of any offense which, under the laws of the
State of New York, constitutes a crime involving moral turpitude.
(2)
Who has been found by any court of the state to have practiced any
fraud, deceit or misrepresentation in the conduct of the secondhand
dealer business unless the Town Clerk, after Town Board approval shall
decide in any particular case upon the facts there presented that
it is proper to issue the license applied for.
(3)
Whose license under this chapter has been revoked at any time during
the year prior to the time of the application for the license.
(4)
Whose license has been suspended under this chapter and the period
of such suspension has not expired at the time of this application
for the license.
Every dealer in secondhand articles shall furnish to the Police
Commissioner of Nassau County, or to his agent, at such times, in
such manner and at such intervals as shall be specified by the Police
Commissioner, all information requested by the Police Commissioner
relative to all records required to be kept under this chapter. Such
information shall be supplied on forms to be designated and supplied
by the Police Commissioner. Duly licensed dealers in antiques shall
furnish daily reports of purchases of secondhand articles within 72
hours.
A.
It shall be unlawful for any dealer in secondhand articles to engage
in selling activities at any place other than the place of business
designated in such license.
B.
It shall be unlawful for any dealer in secondhand articles to purchase
any secondhand goods or things from any person whom he knows to be
or has reason to believe is a minor.
C.
With the exception of duly licensed dealers in antiques, it shall
be unlawful for any dealer in secondhand articles to purchase any
secondhand goods or articles from any person between the hours of
10:00 p.m. and 7:00 a.m.
D.
It shall be unlawful for any dealer in secondhand articles to sell or dispose of any secondhand articles, except articles purchased from another secondhand dealer duly licensed by the Town of Hempstead, until the expiration of 15 business days after the acquisition by such dealer of such articles. Duly licensed dealers in antiques may sell or dispose of secondhand articles in a period of time less than the expiration of the said 15 days mentioned above, provided that the required record of purchases and sales are met pursuant to § 113-11 hereof.
E.
It shall be unlawful for any dealer in secondhand articles to be
licensed as a pawnbroker or to engage in the business of a pawnbroker,
nor shall any sign or emblem be displayed by any such dealer in or
about the premises where such business is conducted which in any way
resembles the sign or emblem commonly used by pawnbrokers or which
is intended to give the appearance that the business conducted on
such premises is, or is connected with, the business of a pawnbroker.
F.
It shall be unlawful for any person licensed as a secondhand dealer to deal in the purchase or sale of any junk, old rope, old iron, brass, copper, tin, lead, rubber, paper, rags, bagging, slush or empty bottles, or employ or use a boat, cart or other vehicle for the purpose of collecting any such things or materials, unless he is also licensed as a junk dealer therefor, as provided for in and pursuant to Chapter 111 of this Code entitled, "Junk Dealers."
G.
It shall be unlawful for any person licensed as a secondhand dealer
to deal in the purchase or sale of secondhand motor vehicles or parts
therefrom, the processing of used metals for resale and the dumping,
storage, burning and disposal of waste, secondhand or used materials
of whatever composition unless he is also licensed as a junkyard therefor,
as provided for in and pursuant to Chapter 112 of this Code entitled,
"Control and Regulation of Junkyards."
Every person licensed as a dealer in secondhand articles who
also sells new articles within the licensed premises shall label all
new articles in such manner that the public will be informed of the
nature of such articles.
A.
If any articles shall be advertised in any newspaper printed in the
County of Nassau as having been lost or stolen and if any goods or
articles answering such advertised description or any part thereof
shall be in or come into the possession of any dealer in secondhand
articles, upon receiving actual written or oral notice of the similarity
of description of such articles, such dealer shall immediately give
information relating thereto to the Police Commissioner of Nassau
County or his agent. No disposition of such articles shall be effected
until authorization to do so shall be given to such dealer by the
Police Commissioner or his authorized agent. A dealer in secondhand
articles, when notified by the Commissioner of Police or his agent
that property in his possession is stolen or alleged to be stolen,
shall take immediate steps to secure that property, and it shall be
marked "police stop." Thereafter, such property shall not be sold
or removed from the premises until notification allowing such removal
or sale is made to the dealer in writing by the Police Commissioner
of Nassau County or his agent.
B.
Every dealer in secondhand articles who shall have or receive any
articles alleged or supposed to have been lost or stolen shall exhibit
the same, on demand, to the Commissioner of Police of Nassau County
or to any authorized inspector of licenses, to any police officer
or to any person duly authorized in writing by the Commissioner of
Police to examine such articles who shall exhibit such written authority
to the dealer.
A.
Every dealer in secondhand articles shall keep a bound book, in a
form prescribed by the Commissioner of Police of Nassau County, of
consecutively numbered transactions, in which shall be legibly written
in English, at the time of every purchase or sale to or from a person
other than a dealer in secondhand articles, a description of every
secondhand article so purchased or sold, the number or numbers and
any monograms, inscriptions or other marks of identification that
may appear on such article, a description of the articles or pieces
comprising old gold, silver, platinum, other metals or coins, stamps
or currency and any monogram, inscription or marks of identification
thereon, the name and residence address of the person from whom such
purchase was made and the day and hour of the purchase.
B.
Every dealer in secondhand articles who receives secondhand articles
on consignment shall keep a record in the above-prescribed book describing
the articles and the name and description of the person or dealer
such items are received from.
C.
As between dealers, all transactions shall be recorded in the above-prescribed
book, and legible records kept describing the articles, including
a detailed description of all jewelry and costume jewelry.
D.
Such books shall be kept on the business premises of the secondhand
dealership or at the place designated on the duly approved license
at all times during normal business hours. Such books shall be open
to the inspection of any police officer, to the Commissioner of Police
of Nassau County, or any inspector of licenses, or any person duly
authorized in writing for such purposes by the Commissioner of Police
who shall exhibit such written authority to the dealer.
E.
Duly licensed dealers in antique articles shall keep a record of
bulk purchases in the bound book, noting the invoice number on each
bulk purchase. All identifiable secondhand articles which are part
of the bulk purchase shall be entered individually in the ledger book
and reported individually to the Nassau County Police Commissioner
within 72 hours after such bulk purchase.
A.
It shall be the duty of every secondhand dealer to verify the identity
of every person from whom he purchases an article and to make and
keep a written record of the nature of the evidence submitted by such
person to prove his identity.
B.
Only the following shall be deemed acceptable evidence of identity:
(1)
Any official document, except a social security account number card,
issued by the United States government, any state, county, municipality
or subdivision thereof, any public agency or department thereof or
any public or private employer, which requires and bears the signature
of the person to whom issued.
C.
It shall be the duty of every dealer in secondhand articles to require
that every person from whom an article is purchased sign his name
in the presence of the secondhand dealer and to compare the signature
with the signature on the identifying document, if any, and retain
on his premises the person's signature together with the number and
description of the identifying document, if any.
A.
A failure to comply with the provisions of § 113-3 hereof entitled "License required" shall constitute a Class A misdemeanor, punishable by a fine not exceeding $1,000 or imprisonment for a period not exceeding one year, or by both such fine and imprisonment.
B.
A failure to comply with the other sections of this chapter shall
constitute a violation and shall be punishable by a fine not exceeding
$250 or imprisonment for a period not exceeding 15 days, or by both
such fine and imprisonment. The continuation of an offense shall constitute
a separate and distinct violation hereunder for each day the offense
is continued.
C.
In addition to the penalties provided above, any offense against
the provisions of this chapter shall subject the person committing
the offense to a civil penalty in the amount of $1,000 for each day
that the offense shall continue, collectible by and in the name of
the Town of Hempstead.
D.
Conviction for any repeated offense against the provisions of this chapter shall constitute and effect an immediate suspension of the license until such time as a hearing can be held pursuant to the provisions of § 113-8 hereof.
[Amended 8-10-1982 by L.L. No. 82-1982, effective 8-16-1982]
E.
In addition to the above-provided penalties and punishment, the Town
Board also may maintain an action or proceeding in the name of the
Town of Hempstead in a court of competent jurisdiction to compel compliance
with the provisions of this chapter or to restrain by injunction an
offense against this chapter.
It shall be the duty of any police officer of the County of
Nassau to require any person seen dealing in secondhand articles and
who is not known by such police officer to be duly licensed to produce
or display his secondhand dealer's license and to enforce the provisions
of this chapter against any person found to be violating the same.
The Town Clerk of the Town of Hempstead shall record all convictions
for violations of this chapter which are officially brought to his
attention by any authorized agency or person.
A.
A license issued under the provisions of this chapter may be revoked
or suspended by the Town Clerk after notice for any of the following
causes:
(1)
Fraud, misrepresentation or false statement contained in the application
for the license.
(2)
Any violation of this chapter.
(3)
Conviction of any crime or offense involving moral turpitude.
(4)
Conducting the activity as a dealer in secondhand articles in an
unlawful manner or in such a manner as to constitute a breach of the
peace or to constitute a menace to the health, safety or general welfare
of the public.
A.
The holder of any license which has been suspended or revoked and
any applicant who shall have been denied a license under this chapter
may apply for a review of the action of the Town Clerk as hereinafter
provided:
(1)
Such application shall be in writing, signed and acknowledged by
the applicant, and shall state the ground or grounds on which the
applicant claims that the determination of the Town Clerk was erroneous.
(2)
Such application shall be filed with the Town Clerk by the applicant
within 20 days after notice of denial of his application or notice
of suspension or revocation of his permit by the Town Clerk has been
mailed to him or delivered to him in person.
(3)
Upon the filing of such application, a hearing shall be held thereon pursuant to the provisions of § 113-18 hereof.
(4)
At such hearing the Review Board shall consider the applicant's application
upon the record before the Town Clerk in connection with the Town
Clerk's consideration thereof and, in its discretion, receive new
or additional evidence in support thereof or in opposition thereto.
B.
The Review Board, after such hearing, may affirm the action of the
Town Clerk or direct the Town Clerk to issue a proper license pursuant
to this chapter.
Whenever it shall be provided herein that a hearing shall or
may be held with respect to any matter:
A.
Such hearing shall be held on a date and at a place and hour designated
by the supervisor.
B.
The Town Clerk shall give notice thereof, stating the name and address
of the applicant or license holder concerned, the subject matter of
the hearing and the date, place and hour thereof designated therefor,
by mailing a copy thereof to the applicant or license holder concerned
at the address shown on the most recent application of such applicant
or licensee, at least 10 days before such hearing.
C.
If an applicant or licensee requests a hearing, the supervisor shall
designate two or more members of the Town Board to conduct said hearing
as a Review Board.
D.
The applicant or license holder involved shall be entitled to be
represented by legal counsel and to present such competent and material
testimony or other evidence in his own behalf as may be relevant to
the subject matter of the hearing.
E.
All witnesses shall be sworn and examined under oath.
