[HISTORY: Adopted by Dutchess County 10-9-2018 by L.L. No. 5-2018. Amendments noted where applicable.]
STATUTORY REFERENCES
Proceeding against body or officer — See Civil
Practice Law and Rules Art. 78.
Certificates of relief from disabilities; certificates of good
conduct — See Correction Law Art. 23, §§ 701
through 703-b.
Persons previously convicted of one or more criminal offenses — See
Correction Law Art. 23-a, §§ 751 through 753.
Designation of offenses — See Penal Law Art.
55, § 55.10
Controlled substances offenses — See Penal Law
Art. 220.
Offenses involving marihuana — See Penal Law
Art. 221.
Local Law No. 8 of 1987, entitled "A Local Law Providing for
the Licensing of Precious Metal and Coin Dealers," as amended by Local
Law No. 5 of 1997 and Local Law No. 2 of 2011, is hereby repealed
upon the effective date of this chapter.
The purpose of this chapter is to provide for licensing of secondhand
dealers and to create a uniform, Countywide registration and recordkeeping
requirement for secondhand dealers located within the County of Dutchess
that will curtail the distribution and facilitate the recovery of
stolen property. The opiate epidemic plaguing the nation has impacted
Dutchess County, causing an increase in property being stolen and
exchanged at secondhand dealer establishments. The Legislature finds
and determines pursuant to its police and home rule powers 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 articles as defined herein that
are stolen property.
As used in this chapter, the following terms shall have the
meanings indicated:
Such items or collectibles recognized as such by established
dealer associations within the industry, other than items defined
as precious metals herein.
A person, corporation, partnership, association, limited
liability corporation or other entity that offers to the public for
sale antiques.
The Dutchess County Commissioner of Behavioral and Community
Health.
All things which are movable at the time of identification
to the transaction for sale other than the money in which the price
is to be paid.
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, including coins, utensils, or objects of art containing one
or more of these metals.
A person, corporation, partnership, association, limited
liability corporation or other entity operating in Dutchess County
that offers to the public for sale goods, wares, or merchandise.
Any goods sold at resale, except as specifically provided
for herein.
Any person, corporation, partnership, association, limited
liability corporation, and the agents, associates or employees thereof,
regularly engaged in the commercial exchange, purchase and/or sale
of secondhand articles.
Effective June 1, 2019, no person, corporation, partnership,
association, limited liability corporation or other entity shall operate
in Dutchess County as a secondhand dealer or hold themselves out as
a secondhand dealer without first being licensed by the Commissioner
as provided for herein:
A.
Every person desiring to engage in any business as a secondhand dealer
in the County of Dutchess shall obtain a license therefor from the
Commissioner in accordance with and subject to the provisions of this
chapter.
B.
Every licensee shall maintain a regular place of business within
the County of Dutchess or designate a local agent for the service
of process.
C.
A licensee shall prominently display the license obtained pursuant
to this chapter in the establishment and visible to the general public.
If a licensee shall maintain more than one establishment within the
County of Dutchess, he/she shall obtain duplicate licenses.
D.
No person who, within 15 years previous to applying for a license,
has been convicted of burglary, felony possession of stolen property,
grand larceny or forgery shall be eligible for a license.
E.
When an application for a license is filed, the Commissioner shall inform the Dutchess County Sheriff of the filing and shall instruct the applicant in the procedure required by the Sheriff to perform a criminal background investigating through the New York State Division of Criminal Justice Services. The applicant shall comply with all federal, state, and local requirements necessary to authorize the Sheriff to conduct a criminal history investigation, including fees and consents if necessary. On obtaining the applicant's fingerprints and necessary fees, the Sheriff shall request a criminal history investigation through the New York State Division of Criminal Justice services. On receipt of the investigation, the Sheriff shall inform the Commissioner as to whether or not the applicant qualifies for a license pursuant to Subsection D of this section. The contents of the investigation shall not be disclosed by the Sheriff.
F.
Regular licenses shall expire two years from the date of issuance.
If a license hereunder shall be lost, stolen or destroyed, a
duplicate may be issued by the Commissioner on:
A.
The Commissioner may, in his/her discretion, issue a temporary license
pending satisfaction of application requirements and shall issue a
temporary license to any applicant for a secondhand dealer license
if he/she has not, within 30 days after receipt of the application
for such license, approved or disapproved such application.
B.
The temporary license shall be for a period of 90 days. If within
such ninety-day period, the Commissioner shall have failed to approve
or disapprove the application, the Commissioner shall then issue a
regular license to the applicant. If the application is approved during
the term of the temporary license, the Commissioner shall issue a
regular license to the applicant.
C.
The fee for a temporary license shall be $50.
D.
A temporary license issued by the Commissioner pending satisfaction
of application requirements shall be revoked if the applicant fails
to timely comply with all application procedures and requirements.
Nothing in this chapter shall be construed to apply to the following:
A.
The sale, or purchase, of any item sold at a garage sale, yard sale,
estate sale, or moving sale (collectively referred to herein as "garage
sale"), provided that all of the following conditions are met:
(1)
The items offered for sale are owned by the seller, and/or the seller
is authorized by the owner to sell said items; and
(2)
The garage sale does not exceed a period of seventy-two consecutive
hours; and
(3)
The seller does not conduct more than three garage sales in any consecutive
twelve-month period; and
(4)
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, or purchase, of a secondhand article by any nonprofit or
charitable organization or on property occupied by any nonprofit or
charitable organization.
C.
The sale, or purchase, of secondhand books or magazines, wherever
sold.
D.
The sale, or purchase, of secondhand articles at an auction held
by a licensed auctioneer.
E.
The sale, or purchase, of used furniture, used clothing, or used
baby/children's items.
F.
The sale of electronics and games for electronics are not exempt
from the requirements of this chapter, but are exempt if sold at a
garage sale, yard sale, estate sale, or moving sale as provided for
herein.
G.
Any transaction involving the sale or disposal of secondhand articles
regulated by state or federal law.
H.
Internet sales or purchases.
I.
Antiques dealers shall be exempt from the provisions of this chapter,
except in the purchase of precious metals, as defined, provided that
the following conditions are met:
(1)
At least 80% of the secondhand articles purchased by the antiques
dealer for resale are purchased from estates, moving sales, auctions,
antique shops, antique shows, flea markets, or in bulk lots; and
(2)
The antiques dealer has an established antiques shop advertised and
promoted as such and maintains a regular schedule of open hours; or
(3)
The antiques dealer exhibits at least twice a year at established
advertised and/or promoted antiques shows in the United States; or
(4)
The antiques dealer 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 crime 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.
J.
The sale, or purchase, of secondhand articles at antique shows, flea
markets, or trade shows, where such shows are advertised and/or promoted
as such, with the exception of precious metals as defined in this
chapter.
K.
Used car dealers, unless a used car dealer receives or accepts anything
of value other than cash or another used vehicle as a down payment,
part payment, or full payment on, of, or for the sale of a used vehicle.
In the event that any used car dealer accepts or advertises or holds
himself or herself out as willing to accept anything of value other
than cash or another used vehicle as a down payment, part payment
or full payment on, of or for any used vehicle sold by him or her,
such used car dealer shall conclusively be presumed, held and construed
to be a secondhand dealer for all purposes and subject to all regulations
herein.
L.
The sale, or purchase, of any secondhand article purchased or sold
outside of Dutchess County.
M.
The purchase of secondhand articles by secondhand dealers from other
secondhand dealers that are regulated by this chapter.
N.
Licensed firearms dealers.
O.
The licensing authority may provide for an exemption from the requirements
of this section, or establish additional or different requirements
concerning the description of any property purchased by a secondhand
dealer, upon consideration of the nature of the property, transaction
or business, including, but not limited to, articles in bulk lots.
Applicants for a license pursuant to this chapter must file
with the Commissioner 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; and
B.
The name, business address, residential address, and telephone number
of the operator of such business if other than the applicant; and
C.
The address and telephone number where the business is to be conducted;
and
D.
The days and hours during which such business will be customarily
open to the public; and
E.
A certification that the applicant, including its principals and
officers, have not been convicted within the immediately preceding
10 years of a crime involving theft, larceny, burglary, possession
of stolen property, or other fraudulent dealing.
A.
Each applicant applying for a secondhand dealer license pursuant
to this chapter, including any principals and officers, shall be required
to provide fingerprint information to the Dutchess County Sheriff's
office as necessary to obtain a criminal history record check through
the New York State Division of Criminal Justice Services/FBI for such
applicant.
B.
The applicant's fingerprints and any applicable fees shall be
forwarded to the Division of Criminal Justice Services (DCJS) in the
form and manner as prescribed by DCJS for a complete criminal background
check. All fees associated with fingerprint submission will be paid
for by asset forfeiture funds and not the responsibility of the applicant.
C.
Prior to the issuance of a license, the Dutchess County Sheriff,
or his/her designee of the Dutchess County Sheriff's office,
will review the criminal history record information provided by DCJS
in connection with the applicant's criminal background and investigation
and will either approve or disapprove said application.
D.
If an applicant has been convicted of a crime, any decision regarding
such applicant's fitness for a license will be made upon consideration
of New York State Correction Law §§ 701 through 703-b
and §§ 751 through 753.
Upon filing of an application for a license, if the Commissioner, or designee, shall be satisfied that the application complies with the provisions of this chapter, the Commissioner, or designee, shall issue a license to operate as a secondhand dealer. The Commissioner shall approve or deny every application within 90 days from filing. In the event the location of the business changes, the licensee shall notify the Commissioner in writing. If there are changes among the principals, officers or operators of such business, the licensee shall notify the Commissioner and shall provide fingerprint information to the Dutchess County Sheriff's office pursuant to § 241-10 above. The form of this license shall be prescribed by the Commissioner.
A.
No person, firm, or corporation shall engage in any business, trade
or transaction in the County of Dutchess as a precious metal exchange
establishment unless licensed in accordance with the provisions of
this chapter.
B.
No object containing precious metal shall be purchased by a precious
metal exchange establishment from:
C.
No article or precious metal, as defined herein, shall have its identification changed by melting or otherwise, nor shall any such article be sold, transferred or exchanged for a period of five business days from the date that such article is reported by the secondhand dealer to the Sheriff as prescribed in § 241-16C(3).
D.
No entity shall organize, procure, present, produce, or sponsor any
show, exhibit, market, or exchange in which precious metals are or
may be bought, sold or traded unless such entity has previously advised,
in writing, all participants, traders or exhibitors of the license
requirements of this chapter.
A.
The Commissioner shall have the authority to deny the application
for a license of any applicant where such applicant, including the
principals or officers thereof, has been convicted within the immediately
preceding 15 years of a crime involving theft, larceny, burglary,
possession of stolen property, other fraudulent dealing, or any felony
offenses related to New York State Penal Law Articles 220 and 221.
B.
The Commissioner may revoke any license granted herein in the following
situations:
(1)
Where the secondhand dealer is convicted of a crime involving theft, larceny, burglary, possession of stolen property, other fraudulent dealing, or any felony offenses related to New York State Penal Law Articles 220 and 221, or of a violation of this chapter, as provided for in § 241-18 below.
(2)
Where the secondhand dealer has made a false statement in connection
with its application;
C.
Notice of denial or revocation of a license issued pursuant to this
chapter shall be given by the Commissioner or his designee in writing,
setting forth specifically the grounds on which such license was either
denied or revoked, with opportunity to be heard. Such notice shall
be transmitted by certified or registered mail. 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 Commissioner's
denial or revocation of a license, no person shall operate as a secondhand
dealer.
A license issued pursuant to this chapter, unless voluntarily
surrendered or revoked, shall remain in effect for two years. In case
any secondhand dealer shall move his/her place of business from the
place designated in the license, he/she shall immediately thereupon
give notice to the Commissioner and have the same endorsed on the
license.
A licensee shall display prominently the license obtained pursuant
to this chapter in the establishment and visible to the general public.
A.
Seller information.
(1)
Except as otherwise provided herein, no secondhand dealer operating
within Dutchess County shall acquire any secondhand article unless
such secondhand dealer has obtained and recorded the following information
from the seller of goods or from the person in the position of the
seller of the goods:
(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, the weight
(if applicable) and purity of the precious metal and a photograph
of the article;
(f)
The date, time and place of the 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.
(3)
No alterations or erasures are to be made in said receipt. Erroneous
entries are to have a simple line drawn through them and the corrected
entry made on the next line.
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 a 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 five years all of the information required in Subsections A and B of this § 241-16. 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 a member of the Dutchess County Sheriff's office or other Police Department or law enforcement agency. Consent to such examination shall be a condition of obtaining and retaining the secondhand dealer license; 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 § 241-18 of this chapter. In the event that a secondhand dealer revokes the consent to examine such records and secondhand articles, the license granted herein may be revoked by the Commissioner. Nothing in this chapter shall diminish or alleviate the need for voluntary consent or a warrant to search a residence or other location not open to the public.
(3)
Every secondhand dealer shall forward to the Dutchess County Sheriff's office, in electronic format approved by the Sheriff, a copy of records for all transactions (acquisitions) and a copy of the seller information required by Subsections A and B of this § 241-16, for each secondhand article acquired in the immediately preceding 72 hours. Photographs of precious metals, jewelry and gems shall be required to be transmitted with these forms. The licensing authority may grant exemptions from the requirement of submitting such statements in an electronic format for good cause shown.
A.
For a period of five days after the acquisition is reported to the
Sheriff 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, no secondhand dealer shall:
B.
As a condition of licensing, 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, no secondhand dealer shall:
A.
Any secondhand dealer who fails to comply with the provisions of §§ 241-4, 241-9, 241-10, 241-16A, B, and C(1), and 241-17 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 §§ 241-11, 241-15, and 241-16C(3) of this chapter shall, upon conviction thereof, be guilty of a Class B 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 § 241-16C(2) of this chapter shall not be punishable as a crime.
B.
In addition to the penalty above, any offense against the provisions
of this chapter shall subject the person committing the offense to
a civil penalty in the amount of $500 for each time that the offense
shall occur, collectible by and in the name of the County of Dutchess.
C.
Each day or part thereof on which a violation or failure continues
shall constitute a separate violation.
D.
If the Commissioner has reason to believe that this chapter is being
violated, he/she shall promptly investigate the matter. If he/she
finds, after notice to the person accused of the violation and opportunity
for such person to be heard, that there has been a violation, the
Commissioner shall issue an order directed to the person who has committed
the violation directing him/her to cease and desist from the violation.
E.
The Commissioner may bring a proceeding in any court of competent
jurisdiction to restrain by injunction violators of his/her orders
or otherwise to enforce such orders or provisions of this chapter.
A.
Authority: The Commissioner, at any time, for such cause as after investigation he/she shall deem sufficient, may suspend or revoke any license granted under the provisions of this chapter. Violation of any of the prohibitions set forth in § 241-12 shall be deemed sufficient cause.
B.
Effect: Whenever any licenses shall be revoked, no refund shall be
made and no license shall be granted to any person whose license has
been revoked within a period of two years from the date of such revocation.
C.
Notice: Notice of the suspension or revocation and the reason therefor
in writing shall be served by the Commissioner on the person named
in the application by mailing the same to business address given in
the application, with a copy of such notice to the County Attorney.
D.
Review: Within 20 business days after service of the notice of suspension
or revocation, the licensee may apply to the Commissioner to hear
and review the order of suspension or revocation. If so requested,
the Commissioner shall hold a hearing, and the licensee may present
evidence on his/her behalf. Within five days of said hearing, the
Commissioner shall either affirm or disaffirm the suspension or revocation
of the license issued under this chapter.
If any section of this chapter of the application thereof to
any person or circumstance shall be adjudged invalid by the court
of competent jurisdiction, such order or judgment shall be confirmed
in its operation to the controversy in which it was rendered, and
shall not effect or invalidate the remainder of any other provision
or any section or the application of any part thereof to any other
person or circumstance, and to this end, the provisions of each section
of this chapter are hereby declared to be severable.
This chapter shall apply to all secondhand dealers operating
in Dutchess County.
This chapter shall become effective on June 1, 2019, subsequent
to filing in the office of the Secretary of State pursuant to the
applicable provisions of the Municipal Home Rule Law and shall apply
to all transactions occurring on or after June 1, 2019.
