[HISTORY: Adopted by the Mayor and the Council of the Borough of Wharton 12-27-2016 by Ord. No. O-21-16. Amendments noted where applicable.]Attachment 1 - Appendix I
The Borough Mayor and Council hereby find that there is a need to regulate and control the buying, selling, advertising and/or solicitation of gold, silver and precious or semiprecious gems or jewelry in order to prevent the easy disposal of items which have been unlawfully obtained as the result of crime while protecting and recognizing the legitimate businesses which are engaged in the buying and selling of gold, silver and precious or semiprecious gems or jewelry.
The Borough Mayor and Council hereby find that there is a need to regulate and control the buying and selling of other metals, such as aluminum, copper, magnesium and ferrous, which have been unlawfully obtained as the result of crime while protecting and recognizing the legitimate businesses which are engaged in the buying and selling of such metals in accordance with N.J.S.A. 45:28-1 et seq., and the rules and regulations promulgated thereunder.
The Borough Mayor and Council hereby find that there is a need to regulate and control the buying, selling, advertising and/or solicitation of gift cards and secondhand goods which have been unlawfully obtained as the result of crime while protecting and recognizing the legitimate businesses which are engaged in the buying and selling of such cards and goods in accordance with N.J.S.A. 45:22-1 et seq., and the rules and regulations promulgated thereunder.
For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meanings ascribed herein. Words used in the present tense shall include the future, words in the plural number shall include the singular number, and words in the singular number shall include the plural number. The word "shall" is always mandatory and not merely directory.
- ACCEPTABLE IDENTIFICATION
- Acceptable forms of identification include: a current valid photo New Jersey driver's license or New Jersey identification card, a current valid photo driver's license issued by another United States state, a valid United States passport, or other verifiable valid United States government-issued photo identification with address. All of the above-listed acceptable identifications require the dealer to capture/record evidence of the person's current address.
- Any article of merchandise, including any portion of such article, whether a distinct part thereof or not, including every part thereof, whether separable or not, and also including material for manufacture. This term shall also include the definition of "article" as the same that appears in N.J.S.A. 51:6-1, as that statute may be amended from time to time.
- AUTOMATED KIOSK
- An interactive device that is permanently installed within a secure retail space and has technological functions that can remotely monitor the kiosk, verify the seller's identification, and store goods securely.
- Any person, partnership, corporation, sole proprietorship, association, or other entity, who or which, through any means, buys, transfers or obtains from consignment articles made of or containing gold, silver, precious or semiprecious metals or gems or jewelry, other metals, or secondhand goods as defined in this chapter, and includes anyone advertising the purchase or sale of any of the aforementioned items.
- A computerized internet-capable database with hardware and software compliant with standards set by the Police Chief.
- Any person, partnership, corporation, sole proprietorship, association, or other entity, who or which, through any means, buys, sells, transfers or obtains from consignment articles made of or containing gold, silver, precious or semiprecious metals or gems or jewelry, other metals, or secondhand goods as defined in this chapter and includes anyone advertising or soliciting the purchase or sale of any of the aforementioned items.
- DESIGNATED VENDOR
- A person or entity who is appointed or designated by the Police Chief who is authorized to collect and maintain precious metal transaction information or other purchase information, as defined herein, for the Borough of Wharton.
- Any person working for a buyer or dealer, whether or not the person is in the direct employment of the buyer or dealer or works full time or part time, who handles gold, silver, precious or semiprecious metals or gems or jewelry, other metals, or secondhand goods for the buyer or dealer. "Employee" shall not mean a person employed by a bank, armored car company or other business entity acting in the sole capacity of bailee-for-hire relationship with a buyer or dealer.
- Any precious or semiprecious stone, or item containing a precious or semiprecious stone, customarily used in jewelry or ornamentation.
- GIFT CARD
- A restricted monetary equivalent or scrip that is issued by retailers or banks to be used as an alternative to a nonmonetary gift.
- Any article or product with a gold content, without regard to the fineness thereof.
- ITINERANT BUSINESS
- Any business conducted intermittently within the Borough of Wharton or at varying locations.
- Any person under the age of 18 years.
- OTHER METALS
- Any item made of aluminum, copper, magnesium or other ferrous metals.
- Any individual natural person, partnership, joint venture, business, society, associate, club, trustee, trust, corporation, or unincorporated group, or an officer, agent, employee, servant, factor or any form of personal representative of any thereof, in any capacity, acting for self or on behalf of another.
- POLICE CHIEF
- The Police Chief of the Borough of Wharton or his designee/representative.
- PRECIOUS OR SEMIPRECIOUS GEM
- Comprised of gold, silver, sterling, platinum and/or their alloys as defined in N.J.S.A. 51:5-1 et seq., N.J.S.A. 51:6-1 et seq., and/or N.J.S.A. 51:6A-1 et seq.; gems, gemstones, coins and all forms of jewelry herein contained; not limited to those categories known as "diamonds, rubies, pearls and sapphires" and commonly called a "jewel."
- Individuals and retail sellers, not to include wholesale transactions or transactions between other merchants.
- Includes any exchange of gold, silver, precious or semiprecious metals or gems or jewelry, other metals, or secondhand goods, as defined in this chapter, for anything of value. A purchase or payment need not be made by way of money in order to constitute purchase for the purposes of this chapter. For purposes of this chapter, a purchase may include an exchange, deposit, pledge, conveyance or trade of any tangible or intangible article.
- REPORTABLE TRANSACTION
- Every transaction conducted by a dealer in which precious metals, or other tangible property, are purchased or exchanged from or with the public.
- SECONDHAND GOODS
- Any article previously sold, acquired, exchanged, conveyed, traded or otherwise formerly owned, including but not limited to scrap gold, old gold, silver, jewelry, home electronics/audio and visual equipment, musical instruments, computers, computer hardware and software, typewriters, word processors, scanners, sporting goods of all kinds, antiques, platinum, all other precious metals, tools of all kinds, televisions, DVRs, GPS, camcorders, car stereos, gift cards, cellphones, collectibles (for example, stamps, coins, comic books, sports memorabilia), other valuable articles or as listed in Appendix I.
- Any person, partnership or corporation who or which, through any means, sells, transfers or offers by consignment gold, silver, precious or semiprecious metals or gems or jewelry or other metals as defined in this chapter.
- Any article or product with a silver content, without regard to the fineness thereof.
- TRANSIENT BUYER
- A dealer who has not been in any retail business continuously for at least six months at that address in the municipality where the dealer is required to register or who intends to close out or discontinue all retail business in the Borough of Wharton within six months. The term "transient buyer" will also include a dealer who intends to close out or discontinue all retail business in the Borough of Wharton within six months, or as so defined in N.J.S.A. 51:6A-5 and N.J.A.C. 13:47C-1.1. Vendors doing business during a community event sponsored or sanctioned by the Borough of Wharton shall not be considered "transient buyers" for purposes of this chapter.
- USED ITEM CONTAINING GOLD OR SILVER
- Any item containing gold or silver previously sold, traded or transferred to a consumer for the personal use or enjoyment of such consumer.
No buyer or dealer shall engage in a regulated activity, as defined above, without having first obtained a license therefor from the Borough Clerk, which license shall bear a number issued by the Borough Clerk and shall be prominently displayed within the licensed premises. The requirement of a license shall apply to the buyer and/or dealer and to any individual employee who engages in a regulated activity on behalf of a buyer or dealer. Hereinafter the term "licensee" shall refer to a buyer, dealer, transient buyer, or to any individual employee who engages in a regulated activity on behalf of a buyer or dealer.
At the time of filing the application for a license, a nonrefundable license fee of $200 shall be paid for the annual license for the premises where the activity is to be conducted. Thereafter, the annual, nonrefundable renewal fee for the premises will be $200. Said license fee shall be in addition to any fee or cost associated with a dealer's obligation to comply with § 227-11 of this chapter mandating the electronic reporting of all transactions.
A license issued under the provisions of this chapter shall not be transferable and shall terminate one year after said license is issued, unless it is renewed in accordance with and pursuant to the provisions of this chapter.
An application for a license shall be in writing on forms available from the Borough Clerk. The application form and pertinent information required shall be developed by the Borough of Wharton through its Police Department, and the application shall be amended from time to time as necessary in order to provide the necessary information required by the Police Department to comply with the intent of this chapter. The applicant shall provide the following information on said application:
Name and address of the licensee;
Address from which the licensee shall conduct business;
Copy of a valid certification of occupancy and/or zoning permit from the Borough of Wharton; and
Upon receipt of an application completed pursuant to this chapter, the Borough Clerk shall refer the application to the Police Chief or the Police Chief's designee who shall arrange for the fingerprinting of the applicant and institute such investigation of the applicant's moral character and business responsibility as the Police Chief deems necessary for the protection of the public welfare. In the event that the licensee is a business entity other than a sole proprietorship, the officers in a corporation or the partners in a partnership (or limited partnership) shall be deemed to be the applicant(s) who shall be fingerprinted and investigated according to this chapter. Upon completion of the investigation, the Police Chief shall return the application or a copy thereof to the Borough Clerk accompanied by a recommendation as to whether the license should be issued or denied. Upon issuance of the license, the Borough Clerk shall give the applicant a copy of this chapter.
If the recommendation of the Police Chief is to deny the license, the grounds for the recommendation shall be stated in writing. Any person aggrieved by such denial may file a written appeal to the Mayor and Council through the Borough Clerk within 15 days from the date of denial. This appeal may be perfected by service of a notice of appeal on the Borough Clerk either personally or by certified mail. The Mayor and Council shall conduct a hearing on an appeal within 30 days of the Borough Clerk's receipt of the filing of a notice of appeal, and a decision shall be rendered, in writing, on the appeal within 20 days of the close of the hearing. The Mayor and Council may confirm or reverse the denial as deemed advisable.
As to any applicant for a license under this chapter, the Police Department of the Borough of Wharton shall, upon the initial application, conduct a full background investigation. With respect to subsequent renewals of the license, the Police Department shall conduct a background investigation by applicant's name, social security number and date of birth for the purpose of the annual renewal of said application.
Any applicable fees relating to the investigation of the applicant, including fees for fingerprinting and/or a background check, shall be paid by the applicant.
Any license may be revoked by the Mayor and Council for any violation of this chapter, in addition to any other penalty imposed for any violation. Any license may be revoked if the licensee has failed to pay any fee or charge properly imposed under the authority of this chapter. Upon any violation, the Mayor and Council may suspend a license upon written notice to the license holder. Upon receipt of the notice of suspension, the license holder may, within 10 days, file with the Borough Clerk a written request for a hearing on the suspension before the Mayor and Council. The hearing shall be held within 30 days of the request, at which hearing the license holder shall have the opportunity to be heard. At the conclusion of the hearing, the Mayor and Council shall either revoke the license or shall reinstate the license. In the event that the license holder shall not request a hearing, the license shall be automatically revoked upon the expiration of 10 days after the notice of suspension has been given to the license holder.
Licenses issued under the provisions of this chapter may be revoked by the Mayor and Council, after a hearing and upon notice to the applicant, as set forth in Subsection A above, for any of the following reasons:
Fraud, misrepresentation or false statement in the application for license.
Fraud, misrepresentation or false statement made in the course of carrying on the regulated activity of this chapter.
Any violation of this chapter, including but not limited to:
Failure by the licensee to enter all transaction information set forth in § 227-11B(1) through (8) into the database within 24 hours after purchase of, receiving for pawn, or receiving for consignment any property, precious metals, metals, or secondhand goods as defined in § 227-1 or as described in Appendix I from the public.
Failure by the licensee to properly maintain computer equipment in a reasonable fashion or failure by the licensee to replace faulty computer equipment such as is required under § 227-11C.
Failure by the licensee to admit to the premises during business hours any member of the Wharton Police Department or other sworn law enforcement officer acting in the performance of their duty or to permit such officer(s) to conduct an inspection or review of records or regulated activity in accordance with § 227-11E.
Conviction of any crime.
Conviction of any disorderly persons offense involving moral turpitude.
Conducting the regulated activity 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 and general welfare of the public.
No licensee shall, by virtue of one license, keep more than one place of business for receiving or taking goods.
No licensee shall, at any time, do business at any place other than the place of business for which the license was granted.
Every licensee within the Borough of Wharton shall, upon the purchase of, receiving for pawn, or receiving for consignment any property, precious metals, other metals, or secondhand goods as defined in § 227-1 or as described in Appendix I from the public, shall be required to do as follows:
Record, using a unique transaction number on a numbered receipt, the name, address and telephone number of the purchaser; the name, address and telephone number of the seller or sellers; the time and date of the transaction; the net weight in terms of pounds Troy, pennyweight (Troy) or kilograms/grams of the precious metals; fineness in terms of karats for gold, and sterling or coin for silver, in accordance with N.J.S.A. 51:5-1 et seq., and N.J.S.A. 51:6-1 et seq., and any property containing a serial number. This information is to be documented and submitted through use of an electronic database software system as designated by the Police Chief the information listed in § 227-11B(1) through (9). These records shall be subject to the inspection of any authorized police officer or any sworn law enforcement officer acting in the performance of their duty as set forth in Subsection E below.
The dealer shall be responsible for any and all costs associated with purchasing, maintaining and updating the electronic database software system, as well as any annual licensing or subscription fees. Said licensing and/or subscription fees associated with the electronic database software system shall be in addition to any other fees or costs required under this chapter.
Through the use of applicably required computer equipment, and using the electronic format approved by the Police Chief, every dealer shall enter and submit all transactions into the electronic database within 24 hours from the date of purchase or receipt of property for pawn or consignment. The information entered will contain the information in Subsection A above, plus the following:
The name, address, date of birth, telephone number and acceptable identification number of the seller.
The receipt number.
A full description of the item or items purchased or pawned by the seller, including, but not limited to, marks, numbers, dates, sizes, shapes, initials, monograms and serial numbers; face value and identifying numbers of gift cards.
The price paid for the item and the method of payment (such as cash, check, trade, etc.).
The form must be signed by the seller.
Require each seller to execute a declaration of ownership, which shall contain the following certification: "My signature confirms that I am the sole legal owner of and am legally authorized to sell the goods being sold. By signing below I certify that I did not obtain and do not possess the identified goods through unlawful means. I am the full age of 18 years old, and the identification presented is valid and correct."
The form must be legible, bearing the name of the clerk or the dealer who made the transaction so as to readily identify that individual.
A color photograph or color image of the seller's presented acceptable identification.
A color photograph or color image of all items purchased by the dealer. When photographing or imaging, all items must be positioned in a manner that makes them readily and easily identifiable.
In the event of a database failure, or dealer's computer equipment malfunction, all transaction information is required to be submitted on paper forms approved by the Police Chief within 24 hours from the date of purchase. In the event that paper forms are used, the dealer is responsible to enter all transaction information set forth in § 227-11B(1) through (9) into the database as soon as possible upon the dealer's equipment being repaired or replaced, or the database coming back into service. Failure by the dealer to properly maintain computer equipment in a reasonable fashion, or failure by the dealer to replace faulty computer equipment, may result in the dealer being cited for a violation of this chapter and subsequently being subject to the penalties for doing so, including revocation of the dealer's license under § 227-8.
Dealer payment to sellers in cash shall be limited to two transactions during a seven-day period for the same seller. The seven-day period will commence on the day of the first transaction and end seven days after the transaction, i.e., if transaction No. 1 occurs on Monday, the seven-day period ends on Sunday. Furthermore, no cash payments shall be made to the same sellers who make more than five transactions in any given thirty-day period. Sellers making transactions over the number of prescribed weekly and monthly periods will be paid by the dealer by means of a bank check drawn from the dealer's business account.
It shall be the requisite duty of every dealer, and of every person in the dealer's employ, to admit to the premises during business hours any member of the Wharton Police Department, or other sworn law enforcement officer acting in the performance of their duty, to examine any database, book, ledger, or any other record on the premises relating to the purchase, receiving for pawn, or receiving for consignment, of any property, precious metals, other metals, or secondhand goods as defined in § 227-1 or as described in Appendix I, from the public. Wharton Police Officers or other law enforcement officers acting in the performance of their duty are empowered to take possession of any article known by the police officer or official to be missing or to have been stolen, or where the officer or official has reasonable suspicion to believe the article is missing or stolen. A receipt will be provided to the dealer for any property seized by the Wharton Police Department or other law enforcement officer.
Editor's Note: Appendix I is included as an attachment to this chapter.
A licensee shall not engage in regulated activity with any person under the age of 18 years, unless such minor is accompanied by a parent or guardian and said parent or guardian gives specific written consent to the transaction and acknowledges the receipt required by the buyer to be given to the seller.
A licensee shall not engage in regulated activity with any individual who is in an intoxicated state and/or is under the influence of intoxicating liquor, narcotics or hallucinogenic or habit-producing drugs.
A licensee shall not purchase any firearms.
All property purchased, or received for consignment, precious metals, other metals, or secondhand goods as defined in § 227-1 or as described in Appendix I, from the public, are to be made available for inspection by the Police Director or any member of the Wharton Police Department or other law enforcement officer acting in the performance of their duty for a period of 15 days from the date the transaction information is reported to the Police Chief in accordance with § 227-11 above. All property, precious metals, other metals, secondhand goods as defined in § 227-1 or as described in Appendix I shall remain in the same condition as when purchased and shall not be sold or disposed of, changed, modified, or melted by the purchaser until the fifteen-day retention period has expired. During this fifteen-day retention period, all property, precious metals, other metals, secondhand goods as defined in § 227-1 or as described in Appendix I shall be placed in public view (during normal business hours) at the licensed location where the transaction occurred between licensee and Seller.
Every applicant shall file with the Borough Clerk a good and sufficient surety bond, to be approved by the Borough Attorney, in the amount of $10,000 for each license sought, executed by a surety company authorized and qualified to do business in the State of New Jersey. The bond shall run to the Borough of Wharton for the benefit of any person or persons injured by any wrongful act, default, fraud or misrepresentation of any violation of this chapter. Said bond shall contain the following language: "The obligation of this bond shall, in addition to the Borough of Wharton, be and remain for the benefit of any person or persons who shall obtain a judgment against obligor, as a result of damage sustained in operation pursuant to any license granted under Chapter 227 of the Code of the Borough of Wharton."
The surety bond shall be kept for a minimum of one year from the date of issuance of license and must be renewed annually along with the license. The bond shall not be cancelled for any cause unless a notice of intention to cancel is filed at least 30 days before the requested cancellation date with the Borough Clerk, with copy of the notice of intention mailed to the Borough Attorney. The bond shall contain such a provision. The requirement of this chapter for obtaining a surety bond is in addition to any obligation imposed by the State of New Jersey upon a transient buyer of precious metals, pursuant to N.J.A.C. 13:47C-6.1.
This chapter shall not apply to purchases made by dealers from wholesalers or other legitimate suppliers, but shall only apply to those purchases made from the public, which includes other retailer sellers as defined in § 227-2. The dealer shall keep records of all wholesale purchases for a period of six months from the date of such purchase, which records shall be opened to investigation by the Wharton Police Department or any sworn law enforcement officer in the performance of their duties.
The following are exempt from the requirements of this chapter:
Garage sales. As used in this section, a "garage sale" is defined as the sale of used personal property by the lawful residents of residentially zoned property that is not conducted on a periodic or ongoing basis.
Sales conducted by governmental, civic, patriotic, fraternal, educational, religious or benevolent organizations which have been in active and continuous existence for at least one year prior to the holding of the sale, or which are incorporated as a not-for-profit corporation by the state.
Sales or purchases which are regulated by the licensing laws of the State of New Jersey, including automobile dealers, used parts dealers and automotive parts recyclers.
Antique dealers. As used in this section, an "antique dealer" is defined as one who derives 75% of his/her gross sales each year from the sale of antiques and/or primitives. As used in this section, an "antique" or "primitive" is defined as an old and valuable art object or article no longer in production that is at least 50 years old. As used in this section, the term "sale" does not include an exchange, trade, or swap of items.
Automated kiosks: This section shall not apply to purchases made by automated kiosks. The automated kiosks keep records of all purchases for a period of five years from the date of such purchase, which records shall be opened to investigation by the Wharton Police Department. This information is to be documented through the use of an electronic database software system as designated by the Police Chief. These records shall be subject to the inspection of any sworn police officer of the State of New Jersey.
Repealer. All ordinances or parts of ordinances inconsistent or in conflict with this chapter are hereby repealed as to said inconsistencies and conflicts.
Severability. If any section, paragraph, subdivision, clause or provision of this chapter shall be adjudged invalid or unconstitutional by a court of competent jurisdiction, the order or judgment shall not affect or invalidate the remainder of any section, paragraph, subdivision, clause or provision of this chapter and, to this end, the remainder of this chapter shall be deemed valid and effective.
Effective date. This chapter shall take effect immediately upon passage and publication according to law.