The purpose of this chapter is to set forth regulations and
procedures for permitting the operation of consignment stores in order
to protect the public from fraud, theft, or other unlawful conduct.
(Ord. 837 § 2, 2003)
The following definitions shall apply in the interpretation
and enforcement of this chapter:
means person, partnership, corporation, firm, trust or limited
liability company who has submitted an application for consignment
store permit as well as the partners, members, stockholders, trustees,
or beneficiaries who own five percent or more, in the aggregate, directly
or indirectly, in the entity applying for the permit.
means a person, to whom something such as tangible personal
property, goods, products and merchandise is consigned. "Consignee"
shall not include any person making any sale or any sale made by virtue
of or pursuant to provisions of any law of the United States or the
state of California pursuant to the provisions of any order made by
any court of the United States or the state of California or by virtue
of any mortgage or a deed of trust or other lien.
means an agreement, arrangement, transaction or promise of
a person, (the consignee) entrusted to receive for sale of tangible
personal property, goods, products or merchandise of another person
(the consignor) with the provision that payment is expected only on
sale and that unsold items shall be returned.
means a retail establishment conducting consignment transactions
within the city.
means a person who gives over or entrusts to another person,
merchandise, tangible personal property, goods, products and merchandise
for sale with the provision that payment is expected only upon sale
and that unsold items shall be returned.
means the aggregate of all interests owned by the applicant,
officers, investors, partners, stockholders, beneficiaries, as well
as interests owned by the spouses, siblings, beneficiaries, ancestors,
and lineal descendants of the person.
includes an individual and shall also include "corporation,"
"limited liability company," "partnership," "joint venture," or other
legal entity.
includes the rental, lease, and loan for money, and/or bailment
of tangible personal property, goods, products or merchandise.
means, but is not limited to, new or used products, including
books, clothing, furniture, household goods, art, antiques, collectibles,
cars, mobile homes, motor vehicles and other new or used vehicles,
and jewelry. Tangible personal property does not include any new goods
or merchandise purchased from a bona fide manufacturer or distributor
or wholesaler of such new goods or merchandise by a secondhand dealer.
(Ord. 837 § 2, 2003)
A.
All
persons legally permitted to engage in consignment transactions on
the effective date of this chapter shall be required to obtain a consignment
store permit pursuant to this chapter prior to any subsequent renewal
of their business license.
B.
All persons legally permitted to engage in consignment transactions on the effective date of this chapter shall, with respect to existing consignment items in their inventory as of the effective date of this chapter where no consignment agreement or other such agreement is in force, be prohibited from changing the price of a consigned item without the consignors written consent, relocating a consigned item to another business without consignors written consent, or penalizing consignor for withdrawing a consigned item prior to sale. In addition, all such consignees shall notify consignor within 10 days whenever his or her consignment item has been damaged and the effect of the damage and any loss of value caused thereby; provide notice to the consignor whenever a consigned item remains unsold for one calendar year that the unsold consigned item remains unsold, as defined herein, and the location of the consigned item; notify consignor of the sale of the consigned item, as described in Section 5.26.260; pay consignor the monies owed to consignor no later than 15 days of the date the consigned item was sold; and provide consignors estate with written notice of any consigned item consignee may have of the deceased consignor. Consignee shall also maintain adequate insurance coverage protecting any consigned items from loss, theft, or property damage.
(Ord. 837 § 2, 2003)
A.
No person
may engage in a consignment business or consignment transactions unless
that person has been validly issued a consignment store permit by
the city pursuant to this chapter for the subject consignment store
and provided that all necessary permits are obtained pursuant to this
chapter and any other applicable laws or regulations.
B.
Consignment
store permits shall be renewed annually by the filing of a supplemental
application setting forth all information provided in this chapter.
(Ord. 837 § 2, 2003)
Consignment stores may be located as a stand alone use or accessory
use to a retail establishment in any land use zone which retail establishments
are permitted, provided that the necessary permits are obtained pursuant
to this chapter and any other applicable laws or regulations.
(Ord. 837 § 2, 2003)
A.
Application
for such permit shall be made upon a form prepared by the city and
shall be submitted to the city manager or his or her designee.
B.
The
following information and the following documents must be submitted
with all applications pursuant to this section:
1.
If
an individual, the applicant shall provide his/her legal name, any
prior legal names or aliases, and date of birth;
2.
If
a corporation, partnership, limited liability company, or joint venture
the applicant shall provide its legal name, any fictitious business
names under which it has operated in the past five years, and the
names, titles, dates of birth and addresses of all current officers,
partners, any majority investors, members, shareholders, and stockholders,
and stockholders holding greater than five percent interest in the
corporation, limited liability company entity, or partnership;
3.
The
name of the business;
4.
The
name of prospective on-site manager if different from the applicant;
5.
The
location of proposed business;
6.
The
applicants business and home address;
7.
A
recent photograph of the applicant and the prospective on-site manager,
if other than the applicant;
8.
Drivers
license of the applicant and the prospective on-site manager, if other
than the applicant;
9.
The
applicants social security and/or federal tax identification number;
10.
The previous residential addresses of the applicant for each of the
five years prior to the date of the application and the date of residency
of each such address;
11.
If a corporation or a limited liability company, the date and state
of incorporation;
12.
The state and county of recording of all partnership documents, and
all counties in which certificates of doing business and certificates
of fictitious name business documents are recorded;
13.
The names and addresses of all previous businesses owned or operated
by the applicant in the previous five years before the date of the
application;
14.
The applicants and, if other than the applicant, the on-site managers
fingerprints taken by a law enforcement agency within the previous
60 days of the date of application.
C.
The
applicant shall pay an application deposit fee of $250 at the time
of filing an application pursuant to this chapter to pay for the administrative
costs associated with the city managers or his or her designees review
of the application and for background investigation costs. If additional
funds are necessary to cover the above costs, the applicant shall
pay such additional costs to the city before further processing of
the application may proceed. Any unused portion of the deposit shall
be refunded to the applicant.
D.
As part
of the background review process, the city manager or his or her designee
shall contact the Riverside County Sheriffs Department and the California
State Board of Equalization to confirm whether any complaints and/or
investigations have been made against the applicant or applicants
business in the past five years.
(Ord. 837 § 2, 2003)
By applying for a permit under this chapter, the applicant shall
be deemed to have consented to the provisions of this chapter and
to the exercise by the city's officials, representatives and employees
charged with implementing and/or enforcing the provisions set forth
in this chapter.
(Ord. 837 § 2, 2003)
No business license shall be issued to any person for any consignment
store unless such person has first obtained a validly issued consignment
store permit pursuant to this chapter.
(Ord. 837 § 2, 2003)
The city manager or his or her designee shall be responsible
for granting or denying all consignment store permits, and such permits
shall only be granted or denied pursuant to the provisions described
herein or any other applicable law.
(Ord. 837 § 2, 2003)
The city manager or his or her designee shall make his or her
determination within 60 days from the receipt of a complete application.
(Ord. 837 § 2, 2003)
A.
An application
for a permit pursuant to this chapter shall be denied upon a showing
of any of the following:
1.
The
location of the business does not comply with all applicable zoning
laws or the provisions of this chapter;
2.
The
applicant or the prospective on-site manager, if other than the applicant,
is not 18 years of age or older;
3.
The
application contains false information;
4.
The
applicant has been convicted in the state of California or any other
state of unlawful conduct involving fraud, theft or perjury;
5.
The
applicant has committed any act which would be grounds for revocation
or suspension of a permit under this chapter;
6.
The
applicant is denied a license for any grounds described in Business
and Professions Code Section 21641 and such violation(s) demonstrates
a pattern of conduct; or
7.
The
applicant does not provide all of the information required by the
application.
B.
If the
city manager or his or her designee denies the application, he or
she shall notify the applicant of the denial in writing and state
the reason(s) for the denial.
C.
Any
subsequent information submitted to cure the grounds of a denied application
shall be treated as a new application.
(Ord. 837 § 2, 2003)
The city manager or his or her designee shall issue the permit if there are no grounds to deny same as set forth in Section 5.26.110, and provided that the requisite security is furnished pursuant to Section 5.26.130.
(Ord. 837 § 2, 2003)
A.
Before
a permit shall be issued or renewed, the applicant shall be required
to furnish in favor of the city of Rancho Mirage one of the following
types of security subject to the approval of the city manager or his
or her designee as to the form and amount of such security:
1.
The
irrevocable pledge of an irrevocable bond from a reputable corporate
bonding company authorized to do business in the state by the Department
of Insurance that is acceptable to the city manager or his or her
designee and in a penal amount approved by the city manager or his
or her designee; or
2.
An
irrevocable letter of credit from a banking institution that is acceptable
to the city manager or his or her designee in an amount approved by
the city manager or his or her designee.
B.
In determining
the minimum face amount of the security, the city manager or his or
her designee shall include the estimated cost of recovery which may
be incurred by the city in enforcing the obligation secured.
C.
The
proceeds from security interest provided pursuant to this chapter
may be used to compensate the city for costs, reasonable expenses
and fees including attorneys fees incurred by the city in successfully
enforcing the obligation secured.
D.
Any
security interest required by this chapter shall provide that upon
the failure to comply with any of the conditions or provisions set
forth in this chapter, consignee or his or her sureties/guarantors
shall pay any fine which may be imposed upon said consignee for such
violation and that said consignee or his or her sureties/guarantors
shall pay to any person aggrieved by any act of said consignee in
violation of this chapter any amount which a court of competent jurisdiction
may determine that such person is entitled to because of said violation.
E.
Any
consignor, including his or her heirs, successors in interest, executors,
transferees, assigns, agents, or any other individuals or entities
related thereto, aggrieved or damaged by any act of a consignee in
violation of, or contrary to the provisions of this chapter shall
have the right to maintain a direct action against the consignees
bondsman or security holder for the consignors loss, accrued interest,
legal or arbitration costs and attorneys fees.
F.
Consignee
shall also maintain adequate insurance coverage protecting any consigned
items from loss, theft or property damage.
(Ord. 837 § 2, 2003)
All permittees shall post the permit issued pursuant to this
chapter in a conspicuous location within the business.
(Ord. 837 § 2, 2003)
Any person engaged in or doing business in or carrying on any
business of consignment transactions which is regulated, licensed
or permitted by the state of California shall make presentation of
a valid unexpired state license or permit as prima facie evidence
that such person is so licensed or permitted by the state.
(Ord. 837 § 2, 2003)
Prior to taking possession of any consigned item consignee shall
enter into a written consignment agreement which shall include references
to all provisions, terms and/or conditions as may be required by this
chapter.
(Ord. 837 § 2, 2003)
The retail price to be charged for any consigned item shall
be set forth in the consignment agreement and the retail price shall
not be changed unless set forth in writing.
(Ord. 837 § 2, 2003)
The amount of commission consignee shall receive upon the sale
of the consigned item shall be set forth in the consignment agreement.
(Ord. 837 § 2, 2003)
The current address and phone number of both the consignor and
of a relative or next of kin not residing with consignor shall be
set forth in the consignment agreement.
(Ord. 837 § 2, 2003)
The location of the retail establishment where the consigned
item is to be displayed for sale shall be set forth in the consignment
agreement. The location of the consigned item shall not be moved to
another location without the written consent of consignor.
(Ord. 837 § 2, 2003)
A.
The
consignment agreement shall provide the duration of the consignment
and describe any penalties for early withdrawal and extension procedures.
Consignor shall be permitted to withdraw his or her consigned item
from sale and to take possession of the item without cost or penalty
at any time prior to sale of the consigned item.
B.
The
consignee shall exercise due care with respect to all consigned items.
C.
In the
event the consigned item is substantially damaged or its value is
substantially affected by such damage, the consignor may, in addition
to any other remedies, he or she may have at law, terminate the consignment.
The termination shall not be deemed or considered a release unless
a release, in writing, in accord with the laws of the state of California
is executed by the parties.
(Ord. 837 § 2, 2003)
Consignee shall notify consignor within 10 days of discovery
whenever his or her consignment item has been damaged and the effect
of the damage and any loss of value caused thereby.
(Ord. 837 § 2, 2003)
A.
Whenever
a consigned item remains unsold for one calendar year, consignee shall
provide notice to the respective consignor that the unsold consigned
item remains unsold and the location of the consigned item.
B.
The
provisions of this section shall be described in the consignment agreement.
(Ord. 837 § 2, 2003)
A.
Consignee
shall notify consignor of the sale of the consigned item within 30
calendar days by telephone and in writing from the date of the sale
or lease of the consigned item.
C.
Consignee
shall pay consignor the monies owed to consignor no later than the
fifteenth day after the end of the month in which the sale took place.
Consignee shall pay consignor interest in the amount of 10% per annum,
prorated to the time of the date of sale or lease, if consignee fails
to pay consignor within the requisite time period as set forth herein.
D.
The
provisions of this section shall be described in the consignment agreement.
(Ord. 837 § 2, 2003)
Following the receipt of written notification of consignors
death or legal incapacitation during the term of any pending consignment
agreement, consignee shall provide within 30 days consignors estate
or legal representative with a copy of said consignment agreement.
(Ord. 837 § 2, 2003)
A.
In addition
to any sales and use tax law, regulation, or other state laws requirement
requiring the retention of certain business, tax, or financial records,
consignee shall also retain copies of all current fully executed consignment
sales agreements and those such agreements executed in the past four
years that authorize him or her to consign any item.
B.
Every
consignee must keep a record book in which must be entered the receipt
number of each sale and the amount paid and date of each sale. All
such books and records shall be made available during normal business
hours for inspection by the city manager or his or her designee.
(Ord. 837 § 2, 2003)
A.
Any
permit issued pursuant to this chapter is not transferable to another
person.
B.
Any
change in direct or indirect ownership or identity of the resident
manager must be reported to the city within 15 days of such change
and new permits applied for. Failure to report any such change within
the time provided or to obtain a permit for the new ownership or manager
shall be grounds for revocation of the permit.
(Ord. 837 § 2, 2003)
Any permittee, upon relocation to another business location
within the city, shall be required to submit an amended application
and furnish the necessary security interest, as determined by the
city manager or his or her designee, prior to operating his or her
business at the new location.
(Ord. 837 § 2, 2003)
A.
An applicant
may appeal the denial, suspension or revocation of an application
for any permit, or any decision of the city manager or his or her
designee, described in this chapter by filing an appeal to the city
council that conforms to the following requirements:
1.
All
appeals shall be in writing and shall contain the following information:
(a) name(s) of the person filing the appeal ("appellants"), (b) a
brief, statement in ordinary and concise language of the relief sought
and the reasons why the permit should be issued, and (c) the signatures
of all parties named as appellants and their mailing addresses.
2.
Any
appeal filed that fails to provide all of the information required
by this chapter shall be deemed incomplete.
3.
A
complete and proper appeal of the denial of a permit application shall
be filed with the city clerk within 10 calendar days of service of
the letter denying the application.
4.
Any
appeal not timely filed shall be rejected.
5.
A
filing fee as established by city council resolution or any amendments
thereto for an appeal must be paid to the city at or prior to the
time of the filing of the appeal.
6.
Any
appeal of a denial of a permit application filed without payment of
the filing fee shall be deemed incomplete.
7.
Not
later than 10 calendar days from the date the appeal is filed, the
city clerk or his or her designee shall determine whether the appeal
is complete.
8.
If
the appeal is determined to be incomplete, the city clerk, or his
or her designee, shall immediately mail to the appellant a notice
of incomplete filing which shall provide a written explanation of
each reason why the appeal has been determined to be incomplete.
9.
If
service of the notice of incomplete filing is completed within 10
calendar days from the date the appeal is filed, the 10 calendar days
time period within which to file a completed appeal shall not be extended.
B.
Failure
to timely and properly file an appeal shall constitute a waiver of
all rights to an appeal hearing.
C.
As soon
as practicable, after receiving the written appeal, the city clerk
shall schedule a public hearing before the city council at the next
regularly scheduled city council meeting for which there is sufficient
time to have the matter properly noticed.
D.
As soon
as practicable, after scheduling the appeals hearing, the city clerk
shall prepare a notice of appeals hearing ("hearing notice") which
shall be in substantially the same form as follows:
|
"You are hereby notified that a hearing will be held before
the City Council at _______ on the ______ day of _______, ________,
at the hour of _____, to hear your appeal of the City Managers denial,
suspension or revocation of your consignment store permit. You may
be present at the hearing. You may be, but need not be, represented
by an attorney. You may present any relevant evidence at the hearing."
|
E.
In addition
to any other public hearing notice requirements as may be required
by any applicable law, the city clerk, or his or her designee, shall
cause a copy of the hearing notice to be provided to the appellant
at least 10 days prior to the public hearing date, either by causing
a copy of the notice to be delivered to the appellant personally or
by causing a copy of the notice to be delivered by certified mail,
postage prepaid, return receipt requested, and addressed to the appellant
at the address shown on the appeal.
F.
Proof
of service of the hearing notice shall be certified at the time of
service by a written declaration under penalty of perjury executed
by the persons effecting service, declaring the date and manner in
which service was made. The declaration pertaining to the proof of
service shall be affixed to a copy of the hearing notice.
G.
The
city clerk, or his or her designee, shall cause a copy of the hearing
notice to be provided to the city manager.
H.
The
city manager, or his or her designee, shall prepare an appeal hearing
packet for the city council to review prior to the hearing.
I.
The
appeal hearing packet shall include a copy of the city managers findings
and decision on the application for the permit, a staff report, and
any other relevant evidence.
J.
The
city council shall review all relevant evidence and hear all relevant
oral testimony submitted by, for and against the appellant and the
appellant shall be provided with a reasonable opportunity to be heard
on the matter at the public hearing.
K.
The
city council may take the following actions:
1.
Reject
the city managers findings and determinations based upon the conclusion
that the city manager misapplied the provisions of this chapter and
reverse the city managers decision;
2.
Modify
the city managers findings and determinations to conform with the
application of the provisions of this chapter and reverse or affirm
the city managers decision;
3.
Accept
the city managers findings and determinations on the grounds that
the city manager properly applied the provisions of this chapter to
the appellant and application and affirm the city managers decision;
or
4.
Remand
the matter to the city manager with instructions to reconsider the
application in light of new information presented to the city council
prior to or at the public hearing.
L.
The
city council shall prepare and serve a written notice of decision
upon the appellant(s) and the city manager within 30 calendar days
from the date the public hearing is deemed closed.
M.
The
notice of decision shall state whether the city managers decision
has been either upheld in full or in part or rescinded in full or
in part.
N.
The
notice of decision shall also contain a brief summary of the evidence
considered, findings of fact, and the effective date of the decision.
O.
The
city clerk shall cause a copy of the notice of decision to be provided
to the appellant(s) by causing a copy of the notice to be delivered
to the appellant(s) personally or by causing a copy of the notice
to be delivered to the appellant(s) by certified mail, postage prepaid,
return receipt requested, and addressed to all the addresses shown
on the application.
P.
Proof
of service of the notice of decision shall be certified at the time
of service by a written declaration under penalty of perjury executed
by the person effecting service declaring the date and manner in which
service was made.
Q.
The
declaration regarding the notice of decision shall be affixed to a
copy of the notice of decision.
R.
The
decision of the city council shall be final.
(Ord. 837 § 2, 2003)
A.
The
city manager or designee may suspend or revoke a permit validly issued
pursuant to this chapter for any of the following reasons:
1.
The
permittee fails to provide information pursuant to this chapter;
2.
It
is discovered by the city manager or designee that information contained
in the approved application was false;
3.
The
permittee or permittees' employees violates any of the provisions
of this chapter;
4.
A
judicial order has been issued requiring a partial or total payment
from the bond or security interest to satisfy such order;
5.
The
permittee fails to renew his or her permit upon expiration of the
permit;
6.
The
security interest required pursuant to this chapter is released or
relinquished without the approval of or notice to the city manager
or designee, as required under this chapter; or
7.
The
permittee or permittees' employees violates a state regulation which
would be grounds for the denial of a state secondhand dealers license,
per the Business and Professions Code, if such violation demonstrates
a pattern of conduct pursuant to subsection (c) of Business and Professions
Code Section 22641.
(Ord. 837 § 2, 2003)
Any violation of this chapter by any person responsible for committing, causing or maintaining such violation shall constitute a public nuisance which shall be subject to the provisions of Title 14 of the Municipal Code.
(Ord. 837 § 2, 2003; Ord. 916 § 3, 2006)
Any violation of this chapter by any person responsible for committing, causing or maintaining such violation shall constitute an infraction violation and the violator shall be subject to the provisions set forth in Title 14 of the municipal code, including, but not limited to, the imposition of any and all criminal penalties set forth therein.
(Ord. 837 § 2, 2003; Ord. 928 § 2, 2006)
A.
In lieu
of issuing an infraction or misdemeanor citation, the city may issue
an administrative citation, pursuant to Title 14 of the municipal
code, to any person responsible for committing, causing or maintaining
the subject violation.
B.
Nothing
in this section shall preclude the city from also issuing an infraction
or misdemeanor citation upon the occurrence of the same subject offense
on a separate day.
(Ord. 837 § 2, 2003; Ord. 920 § 2, 2006)
Any person issued an administrative citation under this chapter, for each separate violation shall be subject to fine as set forth in municipal code Section 14.100.090.
(Ord. 837 § 2, 2003; Ord. 920 § 3, 2006)
A.
Any
violation of this chapter by the holder of any city permit validly
issued pursuant to this or any other chapter of the municipal code
shall constitute grounds for modification, suspension and/or revocation
of the permit.
B.
Nothing
in this chapter shall preclude the city from pursuing other remedies
provided by the municipal code, including, but not limited to, issuance
of stop work orders and injunctive relief.
(Ord. 837 § 2, 2003)
