[Adopted 9-15-1987 by Ord. No. 463]
It shall be unlawful for any person, partnership, association,
firm or corporation to advertise or hold out by any means that the
sale of any goods, wares or merchandise is a "closing-out sale," "a
sale of goods damaged by fire, smoke or water," or a "defunct business
sale," unless a license is first obtained to conduct such a sale from
the Borough Secretary's Office of the Borough of Sharpsburg.
The application procedures, enforcement, investigation and penalties
for this licensing requirement shall be those regulations set forth
in Act 217 of 1963, as amended (53 P.S. § 4471-1 et seq.).
The Borough Secretary's Office of the Borough of Sharpsburg
shall administer and enforce the licensing requirements of this part.
It shall be unlawful for any person in municipalities or townships
of this commonwealth to advertise or hold out by any means that the
sale of any goods, wares or merchandise is a "closing-out sale," "a
sale of goods damaged by fire, smoke or water," or a "defunct business
sale," unless a license is first obtained to conduct such a sale from
the treasurer of a city, or the Secretary of the Borough, or the secretary
of the board of commissioners or board of supervisors of the township
in which such sale is to be held.
For the purpose of this part, the following terms, phrases,
words and their derivations shall have the meanings given herein.
When not inconsistent with the context, words used in the present
tense include the future, words in the plural number include the singular
number, and words in the singular number include the plural number.
The word "shall" is always mandatory and not merely directory.
Shall include, but 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.
Shall include, but not be limited to, all sales advertised,
represented or held forth under the designation of "adjusters sale,"
"administrator's sale," "assignee's sale," "bankrupt sale,"
"bankrupt stock 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 or giving notice to the public of a sale resulting from
death, business failure or other adversity.
Any individual, partnership, association, firm or corporation.
Shall include, but 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 goods, wares or merchandise offered for sale
have been damaged.
Shall include 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 purchases made by the
applicant for a like ninety-day period during any one of the three
years next immediately preceding the year in which the application
is made or his peak purchases for any ninety-day period if he has
been in business for less than three years.
[Amended 2-21-2013 by Ord. No. 13-05]
1.
Any person desiring to conduct a sale regulated by this part shall
make a written application under oath to the Borough Secretary.
2.
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.
3.
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.
4.
All applications for a licensed sale regulated by this part shall
set forth and contain the following information:
A.
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
be a partnership, the names and addresses of all partners; or if the
applicant be 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.
B.
The name and address of the person or person who will be in charge
and responsible for the conduct of such sale.
C.
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.
D.
The date on which it is proposed to begin the sale.
E.
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.
F.
The reason for the urgent and expeditious disposal of the goods,
wares or merchandise to be offered at such sale.
G.
A statement of the descriptive name of the sale and the reasons why
the name is truthfully descriptive of the sale.
H.
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.
I.
A full, complete, detailed and itemized inventory of the goods, wares
and merchandise to be offered at such sale as disclosed by applicant's
records, which inventory shall:
(1)
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.
(2)
List separately any goods to be offered for sale which were
purchased and received during the ninety-day period immediately prior
to the date of making application for the license.
(3)
The total retail value of the inventory of goods, wares and
merchandise to be offered at such sale based on the inventory used
for applicant's most recent federal income tax return adjusted
for sales and purchases.
(4)
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.
(5)
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.
J.
A statement that no goods will be added to the inventory after the
application is made.
K.
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 compromises no goods purchased
on consignment.
L.
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.
1.
The provisions of this part shall not apply to nor affect the following
persons:
A.
Persons acting pursuant to an order or process of a court of competent
jurisdiction.
B.
Persons who are required to file an accounting with a court of competent
jurisdiction.
C.
Persons acting in accordance with their powers and duties as public
officers such as sheriffs, constables and marshals.
D.
Any publisher or employee of a newspaper, 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 act are not being complied with.
2.
Nor shall the provisions of this part apply to any sale advertised
as an "alteration sale," "remodeling sale," "clearance sale," "surplus
stock liquidation sale" or "special purchase sale."
[Amended 2-21-2013 by Ord. No. 13-05]
No license shall be issued unless there is filed with the Borough
Secretary a bond payable to the Commonwealth of Pennsylvania conditioned
upon the faithful observance of all the provisions of this part 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 of any municipality or the commonwealth of all
taxes due and owing or which may become due, and authorizing actions
thereunder by the municipality 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 said bond. The amount
of said bond shall be determined as follows: 5% of the first $100,000
of the retail value of the goods, wares and merchandise to be offered
at such sale; 2% of the next $400,000; and 1% of the balance. Said
bond shall be approved as to form and sufficiency by the Borough or
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.
1.
Any substitution for or addition to goods described in an inventory
filed pursuant to this part, or any change in the time or place for
a sale conducted pursuant to this part, shall be unlawful and shall
void any license issued to conduct a sale pursuant to this act, and
such license shall be revoked.
2.
In the case of a sale licensed under this act conducted by the applicant
in addition to 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 act, and such license shall
be revoked.
[Amended 2-21-2013 by Ord. No. 13-05]
1.
Upon receipt of the application, the Borough Secretary may, in his
discretion, 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 to exist:
A.
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 be 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:
(1)
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.
(2)
Upon the death of a person doing business in this commonwealth,
his or her heirs, distributees, devisees, legatees or their successors
and assignees shall have the right to apply at anytime for a license
hereunder.
(3)
Where a business is required or compelled to be discontinued
because the premises whereupon it is being conducted has been condemned,
taken for purpose of urban renewal or development, or because the
premises must be vacated because of legal or judicial proceedings.
B.
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.
C.
That the inventory contains goods, wares or merchandise not purchased
by the applicant for resale on bona fide orders without cancellation
privileges.
D.
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.
E.
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 or 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 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.
F.
That the applicant has within one year prior to the filing of the
application been convicted of a violation of this part.
G.
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.
H.
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.
I.
That any representation made in the application is false.
2.
Revocation. Upon written and signed complaint being filed with the
Borough Secretary by a resident of the Borough or a resident of any
adjoining municipality or township, or upon the initiative of the
Secretary after making an investigation, the Secretary shall revoke
any license granted under the provisions of this part if he shall
determine:
A.
That the sale by the applicant is conducted in violation of any provision
of this part.
B.
That the applicant has made any material misstatement on his application
for said license.
C.
That the applicant has failed to include in the inventory required
by the provisions of this part the goods, wares or merchandise required
to be contained in such inventory.
D.
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.
E.
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.
[Amended 2-21-2013 by Ord. No. 13-05]
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 the county in which the license is sought. The appeal shall be
upon 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 Borough Secretary 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 Borough Secretary from whose refusal, denial or revocation
of a license the appeal has been taken. The Court shall either sustain
the denial, revocation or refusal of the license or order the issuance
of the license to the applicant.
A copy of the application for license to conduct a sale under
this part, 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. Any advisement 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.
[Amended 2-21-2013 by Ord. No. 13-05]
A license to conduct a sale issued pursuant to this part shall
be good for no more than a period of 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 part by purchase, acquisition or 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 Borough
Secretary where such sale is to be conducted shall receive from the
applicant for such license upon the granting thereof, a fee in an
amount to be determined from time to time by resolution of Borough
Council. The applicant shall not be entitled to a refund of the fee
paid if said application is refused, denied or revoked.
Opening of a business similar to the one for which the sale
licensed pursuant to this part was conducted, except the licensed
"sale of goods damaged by fire, smoke or water," by the person, partnership,
association, corporation or partner of 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 part. Every day
in which business is conducted within the prohibited period of one
year shall constitute a separate violation of this part.
1.
Suitable books and records concerning said sale shall be kept by
the licensee for the duration of the licensed sale and one year thereafter
and shall be open for inspection by the Secretary or his duly authorized
representative.
2.
Upon the termination of a sale licensed hereunder, the applicant
shall, within 30 days of such termination, file a statement with the
Borough Secretary, stating:
Upon complaint of any person, the Common Pleas Court of the
county wherein a violation of this part occurred shall have jurisdiction
in equity to restrain and enjoin any act forbidden or declared illegal
by any provision of this part.
[Amended 2-21-2013 by Ord. No. 13-05]
Any person, firm or corporation who shall violate any provision
of this part shall, upon conviction thereof, be sentenced to pay a
fine of not more than $1,000 plus costs and, in default of payment
of said fine and costs, to a term of imprisonment not to exceed 30
days. Each day that a violation of this part continues or each section
of this part which shall be found to have been violated shall constitute
a separate offense.
