[HISTORY: Adopted by the Common Council of
the City of Oswego 5-9-2016 by L.L. No. 3-2016.[1] Subsequent amendments noted where applicable.]
[1]
Editor's Note: This local law also repealed former Ch. 176,
Pawnbrokers, adopted 5-12-1980 as Ch. 81 of the 1980 Code, as amended.
The Common Council finds and determines that the creation of a uniform, citywide registration and recordkeeping requirement for secondhand dealers located within the City of Oswego will curtail the distribution and facilitate the recovery of stolen property. The Common Council further finds and determines pursuant to its police and home rule powers and those powers specifically granted and regulations specifically set forth in Article 5 of the New York State Business Law that the recordkeeping requirements imposed herein are both reasonable and feasible to implement and will assist the law enforcement community in tracing and recovering secondhand article as defined herein that are stolen property. This chapter shall repeal and replace Chapter 176, Pawnbrokers, adopted by the Common Council of the City of Oswego 5-12-1980 as Chapter 81 of the 1980 Code.
For the purpose of this chapter, the terms used herein are defined
as follows:
Items or collectibles recognized as such by established dealer
associations within the industry.
Includes any person, partnership or corporation:
Loaning money on deposit or pledge of personal property other
than securities or printed evidences of indebtedness; or
Dealing in the purchasing of the personal property on the condition
selling back at a stipulated price; or
Designated or doing business as furniture storage warehouse,
and loaning and advancing money upon goods, wares, or merchandise
pledged or deposited as collateral security.
An official document issued by the United States government,
or by any state, county, municipality, public agency or department
thereof, provided that such document contains a photographic image
of the holder.
Gold, silver, platinum, titanium, precious and semiprecious
stones and coins.
Items of every name and nature and by way of example but
not exclusion, includes tangible items of every name and nature, but
is not limited to, jewelry, watches, earrings, rings, brooches or
similar items containing precious metals, in whole or in part, typically
worn upon a person for adornment; semiprecious bullion, coins, or
stones including diamonds, rubies, emeralds, topaz; televisions; cameras;
video and other digital recording equipment; video game consoles including
any version of Playstation or Xbox; portable GPS units commonly used
in motor vehicles and hand held GPS units, portable MP3 music players
including iPods, computers, laptop computers; cell phones and tablet
computers and iPads; radar detectors and other items that are being
purchased by or otherwise transferred to a second or later end user.
Any person, corporation, partnership, association, limited
liability corporation, and the agents, associates, principals, officers
or employees thereof, regularly engaged in the commercial exchange,
purchase and/or sale of secondhand articles.
Upon the effective date of this chapter, no person, corporation,
partnership, association, limited liability corporation shall operate
in the City of Oswego as a secondhand dealer or hold themselves out
as a secondhand dealer without first obtaining a permit from the City
of Oswego as provided for herein.
Nothing in this chapter shall apply to the following:
A.
The sale of any item sold at a garage sale, yard sale, estate sale,
going out of business or moving sale (collectively referred to herein
as "garage sale"), provided that all of the following items are met:
(1)
The garage sale is held on residential property owned, rented, leased,
or occupied by the seller or by at least one seller if there are multiple
sellers.
(2)
The items offered for sale are owned by the seller, and/or the seller
is authorized by the owner to sell said items.
(3)
The garage sale does not exceed a period of 96 consecutive hours.
(4)
The seller does not conduct more than four garage sales in any consecutive
twelve-month period.
(5)
None of the items offered for sale were purchased by the seller for
resale or received on consignment for purposes of resale.
B.
The sale of any secondhand article by any nonprofit, benevolent,
religious or charitable organization, or on property occupied by any
nonprofit, benevolent, religious or charitable organization when such
sale is conducted by such organization.
C.
The sale of secondhand articles at an advertised auction held by
a licensed auctioneer.
D.
Any transaction involving the sale or disposal of secondhand articles
regulated by state or federal law, rule or regulation including sales
through state or federal licensed dealerships, court-ordered sales,
court-ordered levies or executions.
E.
Internet sales or purchases except that such internet sales or purchases
shall not be exempt from permit requirements if conducted by a person
acting as a collateral loan broker as defined in Article 5, § 52,
of the General Business Law of the State of New York and as further
set forth in § 176-2(f) hereof.
F.
The sale of antiques by an antiques dealer, or his/her employee or
associate, provided the antiques dealer:
(1)
Has an established antiques shop advertised and promoted as such
and maintains a regular schedule of open hours.
(2)
Exhibits at least twice a year at established advertised and/or promoted
antiques shows in the United States.
(3)
Is a private dealer working from home and/or nonretail locations
by appointment or invitation and provided that such private dealer
offers for sale an inventory of primarily, by count, merchandise fitting
definitions of "antiques" or "collectibles" as recognized by established
dealer associations and/or promoters, has never been convicted of
any crimes related to the possession of or sale of stolen goods of
any sort, and has applied for and been granted a New York State resale
number for collection and submission of sales tax.
(4)
Is not engaged in the purchase or sale of precious metals by weight.
G.
The sale of secondhand article at antique shows, flea markets or
trade shows, where such shows are advertised and/or promoted as such.
H.
Transfers of secondhand article, including gifts with or without
consideration, between or among relatives or family members.
I.
Transfers or gifts of secondhand article by an individual or agent
with letters of administration or letters testamentary over a decedent's
estate, or pursuant to rules of intestate succession or a bequest
in a last will and testament.
J.
Licensed or permitted automotive dealers or automobile dismantlers;
brokers or processors of recycled or recovered metals or electronics;
or scrap metal yards.
K.
Precious metals used, bought, sold or transferred in connection with
a university or educational institution or ongoing business or industry,
the primary purpose of which is not to sell secondhand articles, as
defined herein, at retail.
Applicant for a permit pursuant to this chapter must file with
the Clerk of the City of Oswego an application, supplied by such office,
containing the following information:
A.
The exact name, address, and telephone number of the applicant and
the principals and officers thereof and the date of incorporation
or organization, as applicable.
B.
The name, business address, residential address, and telephone number
of the operator of such business if other than the applicant.
C.
The address and telephone number where the business is to be conducted.
D.
The days and hours during which such business will be customarily
open to the public.
E.
A written certification, sworn under oath with penalties of perjury
that the applicant, including any of its principals and officers,
have not been convicted within the immediately preceding ten years
of a crime involving theft, larceny, burglary, possession of stolen
property, or other fraudulent dealing. The Clerk of the City of Oswego
shall deny the applicant a permit if the applicant, any of its principals
or officers has been convicted of any of the crimes listed within
the immediately preceding 10 years.
F.
A copy of a valid New York State sales tax certificate of authority
for the business, person or entity.
G.
A copy of a DCJS search of the applicant, including its principals
and officers, for any crime which the applicant may have committed
within the last 10 years.
Applicants receiving such permit shall pay therefore the sum
of $100 yearly, and every such permit shall expire one year from the
date thereof, and may be renewed upon filing a new application with
the City Clerk each and every year upon the payment of the same sum
and on performance of the other conditions herein contained. The application
for renewal shall contain information which is current at time of
renewal.
Applicants shall obtain a permit by registering with the Clerk
of the City of Oswego. The permit shall remain in effect for one year.
In the event the location of the business changes, any of the principals,
officers or operators of such business change, hours of operation,
or telephone numbers change, or if the applicant, including any of
its principals and officers, have been convicted of any of the crimes
listed in § 175-5E hereof, a permittee shall notify the
City Clerk of the City of Oswego of the changes and shall file an
amended application containing the changed information within 30 days
of such change. If the permit has not expired at the time the amended
application has been filed, there shall be no charge to file the amended
application. The filing of such amended application shall not extend
the expiration date of the permit.
A.
The City Clerk of the City of Oswego shall deny the application for
a permit of any applicant where such applicant, including any of the
principals or officers thereof, has been convicted within the immediately
preceding 10 years of a crime involving theft, larceny, burglary,
possession of stolen property, or other fraudulent dealing.
B.
The City Clerk of the City of Oswego may revoke any permit granted
herein in the following situations:
(1)
Where the secondhand dealer or any of its principals or officers is convicted of a crime involving theft, larceny, burglary, possession of stolen property, or other fraudulent dealing, whether or not in connection with the permitted business, or of a violation of this chapter, as provided for in § 176-14 below.
(2)
Where the secondhand dealer has made a false statement in connection
with its application for a permit or false business record entry on
its books or records.
C.
No such permit shall be granted to or renewed for an applicant who
is in violation of any City of Oswego code, ordinance or local law
(hereinafter "violations") or who owes property taxes, water or sewer
fees, special assessments, fines for violations of City ordinances
or any other fees or past due monies of any name or nature owed to
the City of Oswego (hereinafter "unpaid monies").
(1)
The applicant shall have the burden of providing proof in a form
acceptable to the department that there are no such violations or
unpaid monies.
(2)
In the event that the applicant has accrued violations or unpaid
monies, such permit or renewal thereof shall be denied regardless
of whether such violations or unpaid monies relate to a parcel of
real property for which the application is made or another parcel
owned by applicant or are personal to the applicant.
(3)
In the event that the applicant has accrued violations or unpaid
monies, such permit or renewal thereof shall be denied regardless
of whether such violations or unpaid monies occurred or accrued before
the effective date of this chapter.
(4)
Such permit, once granted, shall be revoked in the event that the
applicant accrues violations or unpaid monies, or violations or unpaid
monies are discovered, after the permit is granted. The revocation
shall take effect five business days after receipt by the permit holder
of notice from the City of Oswego of the pending revocation. Upon
such revocation, all permitted activities and privileges shall immediately
cease.
(5)
No application fees shall be refunded upon revocation of the permit.
(6)
The applicant must reapply for the issuance of such revoked permit
by submitting a new application and paying all necessary application
fees, and any such permitted activities or privileges may only be
resumed once a new permit has been granted.
(7)
All requirements set forth herein shall also apply to nonperson entities
and such permit or renewal thereof shall be denied to an entity, or
revoked, if a person with a substantial interest in such entity owes
such unpaid monies or has accrued such violations. A "person with
a substantial interest" shall mean an ownership interest of more than
10% of, membership on the governing board of, holding an office in
or holding the ability to cast or control more than 10% of the votes
in such entity.
D.
Notice of denial or revocation of a permit issued pursuant to this
chapter shall be given in writing by the City Clerk to the secondhand
dealer, the Chief of Police, and the Sheriff in writing, setting forth
specifically the grounds on which such permit was either denied or
revoked with opportunity to be heard. Such notice shall be transmitted
by regular and certified or registered mail to the secondhand dealer.
Such denial or revocation may be challenged in a special proceeding
conducted pursuant to Article 78 of the New York State Civil Practice
Law and Rules. Pending the outcome of such special proceeding regarding
the denial or revocation of a permit, no person shall operate as a
secondhand dealer.
A permit issued pursuant to this chapter must be renewed annually
as measured from the date of the issuance of the initial permit and
shall expire one year from the date of issuance thereof.
Every secondhand dealer shall cause the secondhand dealer permit
to be prominently displayed at each location of secondhand dealer's
place of business.
A.
Seller information.
(1)
Except as otherwise provided herein, no secondhand dealer operating
within the City of Oswego shall acquire any secondhand article unless
such secondhand dealer has obtained and recorded the following information:
(a)
The amount paid, advanced, or loaned for the article.
(b)
A detailed and accurate description of the article including
any identifying marks.
(c)
The serial and model number (if any).
(d)
In the case of precious metals, jewelry, and gems, a photograph
of the article.
(f)
The date, time and place of this acquisition.
(2)
The information obtained shall be recorded on a written receipt,
which receipt shall be numbered in consecutive order and maintained
in the secondhand dealer's records as provided for herein.
B.
Identification information. Prior to acquiring any secondhand article,
every secondhand dealer shall request and review identification from
the seller to verify the seller's identity by comparing the seller
to the photographic image contained on said identification. The secondhand
dealer shall record the seller's name, date of birth and address
(or current address if different than that listed on the identification),
and the identification number (e.g., motorist ID number) listed on
the identification. The secondhand dealer shall make a photocopy or
photograph of the front of the identification. If the acquisition
is made from a seller who is also secondhand dealer, the secondhand
dealer purchasing the item shall also record the business name and
address of such seller and a statement by such seller regarding the
number of days the item was held by such seller prior to instant acquisition.
C.
Records retention/inspection.
(1)
Every secondhand dealer shall maintain for a period of two years all of the information required in Subsections A and B of § 176-11. Computerized records may be used to satisfy the requirements of this chapter, provided that such records include the required information and are available upon reasonable request for inspection in printed format.
(2)
All records required by this chapter and each secondhand article shall be subject to examination during such times and in such areas of the business that are open to the public by any member of the City Police of the City of Oswego or other police department or law enforcement agency. Consent to such examination shall be a condition of obtaining and retaining the secondhand dealer permit; provided, however, that a revocation of such consent by the secondhand dealer shall not result in a criminal penalty or violation, as provided for in § 176-14 of this chapter. In the event that a secondhand dealer revokes the consent to examine such records and secondhand article, the permit granted herein may be revoked by the Chief of Police of the City of Oswego or the City Clerk of the City of Oswego, pursuant to the notification and challenge provisions set forth in § 176-8B. Nothing in this chapter shall diminish or obviate the need for voluntary consent or a warrant to search a residence, business or other location not open to the public. The City Clerk of the City of Oswego shall compile a list of all secondhand dealers to whom permits have been issued and provide same to any law enforcement agency upon request.
A.
For a period of seven days after the acquisition of any secondhand
article, excluding the day of acquisition (the "holding period"),
every secondhand dealer shall maintain the secondhand article in a
manner so as to be easily identified with the record documenting the
transaction in which said article was acquired. During the holding
period, the secondhand dealer shall not:
B.
As a condition of receiving a permit, the secondhand dealer shall
agree to hold, for a period of 72 hours, any secondhand article, where
a police officer has notified the secondhand dealer that law enforcement
suspects that the article is stolen property. The seventy-two-hour
holding period shall commence at the time of said notification. During
the holding period, the secondhand dealer shall not:
(1)
Sell, trade, transfer, remove from the local business premises or
otherwise dispose of any secondhand article covered by this chapter.
(2)
Alter, in any fashion, any such article, including, but not limited
to, obliterating or defacing identifying marks or disassembling same.
(3)
Commingle any such article with similar items.
C.
As a condition of receiving a permit, any secondhand dealer who purchases, sells or offers for sale new articles shall obtain those new articles only from an authorized retailer or wholesaler. Nothing in this § 176-12C shall prohibit the purchase or sale of new items obtained from individuals who sell less than three of an identical or same type of article within any calendar year.
In addition to any provisions of New York State Agriculture
and Markets Law, it shall be unlawful for a secondhand dealer to knowingly
buy or sell precious metals by weight unless the scale used for the
transaction has first been inspected by the Oswego County Department
of Weights and Measures. Notwithstanding any other provisions of law,
no secondhand dealer license shall be issued unless all scales used
by the permit holder have been inspected and passed by the Sealer
of Weights and Measures.
Any secondhand dealer who fails to comply with the provisions of §§ 176-3, 176-5, 176-6, 176-11A, B, C(1), 176-12, and 176-13 of this chapter shall, upon conviction thereof, be guilty of a Class A misdemeanor as defined in § 55.10 of the Penal Law of the State of New York as may be amended from time to time. Any secondhand dealer who fails to comply with the provisions of §§ 176-8 and 176-11 of this chapter shall, upon conviction thereof, be guilty of an unclassified misdemeanor as defined in § 55.10 of the Penal Law of the State of New York as may be amended from time to time; provided, however, that a secondhand dealer's failure to consent to a search of the premises as provided for in § 176-11C(2) of this chapter shall not be punishable as a crime.
If any provision, sentence or clause of this chapter is held
unconstitutional, illegal or invalid by a court of competent jurisdiction,
such findings shall not affect or impair any or the remaining provisions,
sentences or clauses or their application to persons and circumstances.
This chapter shall apply to all secondhand dealers operating
in the City of Oswego.
This chapter shall become effective immediately upon filing
with the Secretary of State, and shall be filed pursuant to the provisions
of the Municipal Home Rule. All recordkeeping requirements, record
retention periods, and secondhand article retention periods shall
commence as of the effective date of this chapter and shall apply
only to those articles acquired on or after the effective date of
this chapter.
