PRINTER'S NO. 631
No. 566 Session of 1997
INTRODUCED BY GORDNER, FAIRCHILD, VAN HORNE, TRELLO, TIGUE,
YOUNGBLOOD, STABACK, BELFANTI, MELIO, HERSHEY, SANTONI,
BELARDI, COLAFELLA, WOGAN, CORPORA, SCRIMENTI AND ITKIN,
FEBRUARY 13, 1997
REFERRED TO COMMITTEE ON LOCAL GOVERNMENT, FEBRUARY 13, 1997
AN ACT
1 Amending the act of July 31, 1963 (P.L.410, No.217), entitled
2 "An act regulating and licensing all sales at retail when
3 such sales are advertised as 'Closing Out Sale,' 'Fire, Smoke
4 or Water Damage Sale,' or 'Defunct Business Sale,' with
5 exceptions; requiring filing of inventory and bond; and
6 providing for appeals and penalties," further providing for
7 unlawful advertisement, for applications, for bonds, for
8 license decisions, for license appeals and for sale duration
9 and license fees; providing for county licenses; and further
10 providing for records.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. Sections 2, 4(a), 6, 9, 10 and 12 of the act of
14 July 31, 1963 (P.L.410, No.217), entitled "An act regulating and
15 licensing all sales at retail when such sales are advertised as
16 'Closing Out Sale,' 'Fire, Smoke or Water Damage Sale,' or
17 'Defunct Business Sale,' with exceptions; requiring filing of
18 inventory and bond; and providing for appeals and penalties,"
19 are amended to read:
20 Section 2. Unlawful Advertisement.--It shall be unlawful for
21 any person in municipalities or townships of this Commonwealth
1 to advertise or hold out by any means that the sale of any
2 goods, wares or merchandise is a "closing-out sale," "a sale of
3 goods damaged by fire, smoke or water," or a "defunct business
4 sale," unless a license is first obtained to conduct such a sale
5 from the treasurer of the city, or the secretary of the borough,
6 or the secretary of the board of commissioners or board of
7 supervisors of the township in which such sale is to be held, or
8 from the treasurer of the county in which the sale is to be held
9 when no such license is available from the township or
10 municipality.
11 Section 4. Application Requirements.--(a) Any person
12 desiring to conduct a sale regulated by this act shall make a
13 written application under oath to the treasurer of the city, or
14 to the secretary of the borough, or the secretary of the board
15 of commissioners [of the township] or board of supervisors of
16 the township in which the sale is to be held, or to the
17 treasurer of the county in which the sale is to be held when no
18 such application is available from the township or municipality.
19 * * *
20 Section 6. Bond Required.--No license shall be issued unless
21 there is filed with the treasurer of the city, or the secretary
22 of the borough, or the secretary of the board of commissioners
23 of the township where such is to be held, or with the treasurer
24 of the county in which the sale is to be held where no such
25 license is available from the township or municipality, a bond
26 payable to the Commonwealth of Pennsylvania conditioned upon the
27 faithful observance of all the provisions of this act, and the
28 indemnifying of any purchaser at such sale who suffers any loss
29 by reason of misrepresentation made in connection with such
30 sale, and for the payment to any municipality or the
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1 Commonwealth of all taxes due and owing or which may become due,
2 and authorizing actions thereunder by the city, borough, [or]
3 township, or county and by any purchaser at such sale for damage
4 or loss suffered by him by reason of any misrepresentation made
5 in connection with such sale: Provided, however, That the
6 aggregate liability of the surety for all breaches of the
7 conditions of the bond shall in no event exceed the amount of
8 said bond. The amount of said bond shall be determined as
9 follows: five percent of the first one hundred thousand dollars
10 ($100,000) of the retail value of all the goods, wares and
11 merchandise to be offered at such sale; two percent of the next
12 four hundred thousand dollars ($400,000); and one percent of the
13 balance. Said bond shall be approved as to form and sufficiency
14 by the city, borough, [or] township, or county solicitor and by
15 the city treasurer, borough council, or township board of
16 commissioners or board of supervisors, or by the county
17 treasurer.
18 Section 9. Investigation of Application; Grounds for Denial;
19 Revocation of License.--(a) Upon receipt of the application, the
20 treasurer of the city, or the secretary of the borough, or the
21 secretary of the board of commissioners or board of supervisors
22 of the township [in which such sale is to be held may], or the
23 treasurer of the county in which the sale is to be held may, in
24 his discretion, make or cause to be made an examination, or
25 order an investigation of the applicant, and all the facts
26 contained in the application and inventory in relation to the
27 proposed sale. A license shall be denied or refused if any one
28 or more of the following facts or circumstances are found by him
29 to exist:
30 (1) That the applicant has not been the owner of the
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1 business advertised or described in the application for a
2 license hereunder for a period of at least three months prior to
3 the date of the application, or if the applicant be a
4 partnership, corporation or association, controlling interest in
5 the corporation or association was transferred within six months
6 prior to the date of the application for a license hereunder,
7 except--
8 (i) Where the application is for a license for a "sale of
9 goods damaged by fire, smoke, or water," or a "defunct business
10 sale," and the inventory listed in the application contains only
11 those goods, wares or merchandise which were on the premises at
12 the time of the occurrence of the circumstances warranting the
13 granting of a license hereunder;
14 (ii) Upon the death of a person doing business in this
15 Commonwealth, his or her heirs, distributees, devisees,
16 legatees, or their successors and assignees, shall have the
17 right to apply at anytime for a license hereunder;
18 (iii) Where a business is required or compelled to be
19 discontinued because the premises whereupon it is being
20 conducted has been condemned, taken for purposes of urban
21 renewal or development or because the premises must be vacated
22 because of legal or judicial proceedings.
23 (2) That in the case of a "closing out sale," the applicant,
24 either as owner, partner, member of an association, or principal
25 stockholder of a corporation, was granted a prior license
26 hereunder within one year preceding the date of the filing of
27 the application.
28 (3) That the inventory contains goods, wares or merchandise
29 not purchased by the applicant for resale on bona fide orders
30 without cancellation privileges.
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1 (4) That the inventory contains goods, wares or merchandise
2 purchased by the applicant on consignment, except if the
3 consigned goods, wares or merchandise have been damaged while in
4 the consignee's possession.
5 (5) That the applicant, except in the case of an application
6 for a license to conduct a "sale of goods damaged by fire,
7 smoke, or water," or a "defunct business sale," either as owner,
8 partner, officer of an association, or principal stockholder of
9 a corporation, was granted a prior license hereunder within one
10 year preceding the date of the filing of the application at the
11 particular location for which the license is sought, or within
12 one year prior to the date of filing of the application, has
13 conducted a sale in connection with which he advertised or
14 represented that the entire business conducted at the particular
15 location for which the license is sought was to be closed out or
16 terminated.
17 (6) That the applicant has within one year prior to the
18 filing of the application been convicted of a violation of this
19 act.
20 (7) That the goods, wares or merchandise as described in the
21 inventory, where transferred or assigned to the applicant prior
22 to the date of the filing of the application and that said
23 transfer or assignment was not made for a valuable and adequate
24 consideration.
25 (8) That the inventory contains goods, wares or merchandise
26 purchased by the applicant or added to his stock in
27 contemplation of such sale and for the purpose of selling the
28 same at such sale. For this purpose any unusual purchase or
29 addition to the stock of such goods, wares and merchandise made
30 within ninety days prior to the date of the filing of such
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1 application shall be presumptive evidence that such purchase or
2 additions were made in contemplation of such sale and for the
3 purpose of selling the same at such sale.
4 (9) That any representation made in the application is
5 false.
6 (b) Revocation. Upon written and signed complaint being
7 filed with the treasurer of the city, or the secretary of the
8 borough, or the secretary of the board of commissioners or board
9 of supervisors of the township [where such sale is to be held],
10 or the treasurer of the county where the sale is to be held, by
11 a resident of the municipality or township in which the sale is
12 to be held, or a resident of any adjoining municipality or
13 township, or upon the initiative of such treasurer or secretary
14 of the municipality, township or county after making an
15 investigation, the treasurer or secretary shall revoke any
16 license granted under the provisions of this act if he shall
17 determine:
18 (1) That any sale by the applicant is conducted in violation
19 of any provision of this act.
20 (2) That the applicant has made any material misstatement in
21 his application for said license.
22 (3) That the applicant has failed to include in the
23 inventory, required by the provisions of this act, the goods,
24 wares or merchandise required to be contained in such inventory.
25 (4) That the applicant has added or permitted to be added to
26 said sale or offered or permitted to be offered at said sale,
27 any goods, wares or merchandise not described in the original
28 application and inventory.
29 (5) That the applicant made or permitted to be made any
30 false, misleading or deceptive statements in advertising said
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1 sale, whether written or oral, or in displaying, ticketing, or
2 pricing goods, wares or merchandise offered for sale.
3 Section 10. Appeal from Denial or Revocation of License.--
4 Any applicant for a license, who is aggrieved by the denial,
5 refusal or revocation of a license, may appeal within five days
6 from the date of denial, refusal or revocation of the court of
7 common pleas of the county in which the license is sought. The
8 appeal shall be upon petition of the applicant for an injunction
9 prohibiting the denial, refusal or revocation of a license. A
10 copy of such appeal shall be served upon the treasurer of any
11 city, or the secretary of any borough, or the secretary of the
12 board of commissioners of the township, or the treasurer of the
13 county who has refused, denied or revoked the license. The court
14 shall hear the application for an injunction expeditiously at a
15 time as it shall fix of which notice shall be given to the
16 treasurer of the city, or the secretary of the borough or the
17 secretary of the board of commissioners of the township, or the
18 treasurer of the county from whose refusal, denial or revocation
19 of a license the appeal has been taken. The court shall either
20 sustain the denial, revocation or refusal of the license or
21 order the issuance of the license to the applicant.
22 Section 12. Duration of Sale; License Fee.--A license to
23 conduct a sale issued pursuant to this act shall be good for no
24 more than a period of thirty consecutive calendar days and may
25 be renewed for one consecutive period not exceeding thirty
26 consecutive calendar days upon the affidavit of the applicant
27 that the goods listed in the inventory have not been disposed of
28 and that no new goods have been or will be added to the
29 inventory previously filed pursuant to this act by purchase,
30 acquisition, on consignment or otherwise. The application for
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1 renewal shall be made not more than ten days prior to the time
2 of the expiration of the license and shall contain a new
3 inventory of the goods remaining on hand at the time the
4 application for renewal is made, which new inventory shall be
5 prepared and furnished in the same manner and form as the
6 original inventory. The treasurer of the city, or the secretary
7 of the borough, or the secretary of the board of commissioners
8 or board of supervisors of the township, or the treasurer of the
9 county where such sale is to be conducted shall receive from the
10 applicant for such license, upon the granting thereof, a fee of
11 fifty dollars ($50), and upon the renewal thereof, a fee of one
12 hundred dollars ($100). The applicant shall not be entitled to a
13 refund of the fee paid if said application is refused, denied or
14 revoked.
15 Section 2. The act is amended by adding a section to read:
16 Section 12.1. County License.--Each county shall require
17 that a license be obtained to advertise or conduct sales
18 governed by the provisions of this act. In the event that a
19 municipality or township has not enacted an ordinance regulating
20 sales defined by this act, and no license is available from a
21 township or municipality, a person shall apply for a license to
22 conduct the sale from the county government wherever the
23 municipality or township is located. The county treasurer shall
24 either grant or deny permission to conduct a sale to the
25 applicant in accordance with the provisions of this act.
26 Section 3. Section 14(b) of the act is amended to read:
27 Section 14. Records.--* * *
28 (b) Upon the termination of a sale licensed hereunder, the
29 applicant shall, within thirty days of such termination, file a
30 statement with the treasurer of the city, or the secretary of
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1 the borough, or the secretary of the board of commissioners or
2 board of supervisors of the township, or the treasurer of the
3 county in which the sale was held stating:
4 (1) The total retail value of the goods, wares or
5 merchandise not disposed of during the sale; and
6 (2) The ultimate disposition thereof, and if transferred to
7 another, the name and address of the transferee.
8 Section 4. This act shall take effect in 60 days.
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