act-1963-0-217•Pennsylvania Act 1963-217 — LICENSING AND REGULATING "FIRE SALES"
Pennsylvania Act 1963-217 — LICENSING AND REGULATING "FIRE SALES"
act-1963-0-2171963 Pa. Act 217Law
Act text
LICENSING AND REGULATING "FIRE SALES"
Act of Jul. 31, 1963, P.L. 410, No. 217 Cl. 53
AN ACT
Regulating and licensing all sales at retail when such sales are
advertised as "Closing Out Sale," "Fire, Smoke or Water
Damage Sale," or "Defunct Business Sale," with exceptions;
requiring filing of inventory and bond; and providing for
appeals and penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Factual Background.--That sales to be licensed
and regulated pursuant to the provisions of this act have often
been conducted and advertised in such a manner as to mislead and
defraud the public and otherwise to result in harm to the public
interest.
That such fraud and imposition on the public has included, by
way of partial enumeration only: the misrepresentation of the
condition or necessity which is the occasion of such sale; the
misrepresentation of the identity of the person conducting such
sale, and/or the name and style in which such sale is to be
conducted; the misrepresentation that the goods offered at such
sale are selling at sacrifice prices; the misrepresentation that
the operator of the sale is selling merchandise on hand at the
time when the necessity, which is the occasion of such sale,
arose, when in fact he is replenishing his stock with additional
merchandise both prior to the commencement and during the
conduct of such sale so as to keep foisting upon the public such
added merchandise as though it were part of the original stock;
and the excessive valuation and misrepresentation of the
quality, former price and ownership of the goods to be sold at
such sale;
In order to prevent such fraud and imposition, the public
interest requires the regulation of such sales and the duration
and conduct thereof;
That the public interest therefor requires that no such sale
should be conducted without a license or otherwise than in
accordance with this act.
Section 2. Unlawful Advertisement.--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 the 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.
Section 3. Definitions.--For the purpose of this act, the
following terms, phrases, words and their derivations shall have
the meaning 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;
(1) The term "closing-out sale" 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.
(2) The term "sale of goods damaged by fire, smoke or water"
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.
(3) The term "defunct business sale" shall include, but not
be limited to, all sales advertised, represented or held forth
under the designation of "adjuster's 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.
(4) "Unusual purchase or addition" shall mean any purchase
of goods, wares or merchandise during the ninety days preceding
the application for a license, the total value of which is at
least twenty-five percent greater than purchases made by the
applicant for a like ninety-day period during any one of 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.
(5) "Person" shall mean any individual, partnership,
association, firm or corporation.
Section 4. Application Requirements.--(a) Any person
desiring to conduct a sale regulated by this act shall make a
written application under oath to the treasurer of the city, or
to the secretary of the borough, or the secretary of the board
of commissioners of the township or board of supervisors in
which the sale is to be held.
(b) If the application is for a "closing out sale" or a
"defunct business sale," it shall be filed as least fifteen days
prior to the date on which such sale is to commence.
(c) 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.
(d) All applications for a licensed sale regulated by this
act shall set forth and contain the following information:
(1) 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.
(2) The name and address of the person or persons who will
be in charge and responsible for the conduct of such sale.
(3) 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.
(4) The date on which it is proposed to begin the sale.
(5) 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.
(6) The reason for the urgent and expeditious disposal of
the goods, wares or merchandise to be offered at such sale.
(7) A statement of the descriptive name of the sale and the
reasons why the name is truthfully descriptive of the sale.
(8) 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.
(9) 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:
(i) 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;
(ii) List separately any goods to be offered for sale which
were purchased and received during a ninety-day period
immediately prior to the date of making application for the
license;
(iii) 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;
(iv) 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;
(v) 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.
(10) A statement that no goods will be added to the
inventory after the application is made.
(11) 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
comprises no goods purchased on consignment.
(12) 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.
Section 5. Exemptions.--(a) The provisions of this act shall
not apply to nor affect the following persons:
(1) Persons acting pursuant to an order or process of a
court of competent jurisdiction;
(2) Persons who are required to file an accounting with a
court of competent jurisdiction;
(3) Persons acting in accordance with their powers and
duties as public officers such as sheriffs, constables and
marshals;
(4) Any publisher or employe of a newspaper, magazine, or
any operator or employe 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.
(b) Nor shall the provisions of this act apply to any sale
advertised as an "alteration sale," "remodeling sale,"
"clearance sale," "surplus stock liquidation sale," or "special
purchase sale."
Section 6. Bond Required.--No license shall be issued unless
there is filed with the treasurer of the city, or the secretary
of the borough, or the secretary of the board of commissioners
of the township where such is to be held, a bond payable to the
Commonwealth of Pennsylvania conditioned upon the faithful
observance of all the provisions of this act, 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 to any municipality or the
Commonwealth of all taxes due and owing or which may become due,
and authorizing actions thereunder by the city, borough, or
township 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: five percent
of the first one hundred thousand dollars ($100,000) of the
retail value of all the goods, wares and merchandise to be
offered at such sale; two percent of the next four hundred
thousand dollars ($400,000); and one percent of the balance.
Said bond shall be approved as to form and sufficiency by the
city, borough, or township solicitor and by the city treasurer,
borough council, or township board of commissioners or board of
supervisors.
Section 7. Branch Stores and Warehouses.--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.
Section 8. Substitution, Addition and Commingling of Goods;
License Void; Certain Purchases Prohibited.--(a) Any
substitution for or addition to goods described in an inventory
filed pursuant to this act, or any change in the time or place
for a sale conducted pursuant to this act, shall be unlawful and
shall void any license issued to conduct a sale pursuant to this
act, and such license shall be revoked.
(b) 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.
Section 9. Investigation of Application; Grounds for Denial;
Revocation of License.--(a) Upon receipt of the application, the
treasurer of the 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 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:
(1) 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--
(i) 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;
(ii) 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;
(iii) Where a business is required or compelled to be
discontinued because the premises whereupon it is being
conducted has been condemned, taken for purposes of urban
renewal or development or because the premises must be vacated
because of legal or judicial proceedings.
(2) 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.
(3) That the inventory contains goods, wares or merchandise
not purchased by the applicant for resale on bona fide orders
without cancellation privileges.
(4) 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.
(5) 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 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.
(6) That the applicant has within one year prior to the
filing of the application been convicted of a violation of this
act.
(7) That the goods, wares or merchandise as described in the
inventory, where 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.
(8) 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 ninety 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.
(9) That any representation made in the application is
false.
(b) Revocation. Upon written and signed complaint being
filed with the treasurer of the city, or the secretary of the
borough, or the secretary of the board of commissioners or board
of supervisors of the township where such sale is to be held, by
a resident of the municipality or township, or a resident of any
adjoining municipality or township, or upon the initiative of
such treasurer or secretary after making an investigation, the
treasurer or secretary shall revoke any license granted under
the provisions of this act if he shall determine:
(1) That any sale by the applicant is conducted in violation
of any provision of this act.
(2) That the applicant has made any material misstatement in
his application for said license.
(3) That the applicant has failed to include in the
inventory, required by the provisions of this act, the goods,
wares or merchandise required to be contained in such inventory.
(4) 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.
(5) 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.
Section 10. Appeal from Denial or Revocation of License.--
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 of 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 treasurer of any
city, or the secretary of any borough, or the secretary of the
board of commissioners of the township 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 treasurer of the city, or the
secretary of the borough or the secretary of the board of
commissioners of the township 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.
Section 11. Copy of Application, Inventory and License to be
Posted; License to be Referred to in Advertisements.--A copy of
the application for a license to conduct a sale under this act,
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 advertisement 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.
Section 12. Duration of Sale; License Fee.--A license to
conduct a sale issued pursuant to this act shall be good for no
more than a period of thirty consecutive calendar days and may
be renewed for one consecutive period not exceeding thirty
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 act by purchase,
acquisition, on consignment or otherwise. The application for
renewal shall be made not more than ten 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 treasurer of the city, or the secretary
of the borough, or the secretary of the board of commissioners
or board of supervisors of the township where such sale is to be
conducted shall receive from the applicant for such license,
upon the granting thereof, a fee of fifty dollars ($50), and
upon the renewal thereof, a fee of one hundred dollars ($100).
The applicant shall not be entitled to a refund of the fee paid
if said application is refused, denied or revoked.
Section 13. Opening of a Similar Business.--Opening of a
business similar to the one for which the sale, licensed
pursuant to this act, was conducted, except the licensed "sale
of goods damaged by fire, smoke or water," by the person,
partnership, association, corporation, or partner of a
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 act. Every day in which business
is conducted within the prohibited period of one year shall
constitute a separate violation of this act.
Section 14. Records.--(a) 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 treasurer or the secretary of
their duly authorized representative.
(b) Upon the termination of a sale licensed hereunder, the
applicant shall, within thirty days of such termination, file a
statement with the treasurer of the city, or the secretary of
the borough, or the secretary of the board of commissioners or
board of supervisors of the township in which the sale was held
stating:
(1) The total retail value of the goods, wares or
merchandise not disposed of during the sale; and
(2) The ultimate disposition thereof, and if transferred to
another, the name and address of the transferee.
Section 15. Common Pleas Court Jurisdiction.--Upon complaint
of any person, the common pleas court of the county wherein a
violation of this act occurred shall have jurisdiction in equity
to restrain and enjoin any act forbidden or declared illegal by
any provision of this act.
Section 16. Penalties.--Any person, violating any provision
of this act shall, upon conviction thereof in a summary
proceeding, be sentenced to pay a fine of not more than one
hundred dollars ($100) or to imprisonment for a term of not
exceeding thirty days. Each day any sale is conducted in
violation of this section shall be a separate violation of this
act. The right to appeal from such conviction shall exist as in
other cases of summary proceedings.
Section 17. Severability.--The provisions of this act are
severable and, if any provision or part hereof shall be held
invalid or unconstitutional or inapplicable to any person or
circumstances, such invalidity, unconstitutionality, or
inapplicability shall not affect or impair the remaining
provisions of this act. It is hereby declared to be the
legislative intent that this act would have been adopted if such
invalid, unconstitutional or inapplicable provision had not been
included therein.
Section 18. Repeals.--The act of July 2, 1937 (P.L.2821),
entitled, as amended, "An act to regulate the sale and
advertising for sale of goods, wares and merchandise purporting
to be an insurance, bankruptcy, mortgage, insolvent, assignees,
receivers, trustees, removal or closing-out sale, or sale of
goods damaged by fire, smoke or water, in municipalities and
townships, and to prevent fraudulent practices in connection
therewith, and providing penalties for violation thereof, and
for the imposition of license fees for permission to conduct the
same," and all other acts and parts of acts inconsistent
herewith are hereby repealed.
Section 19. Effective Date.--This act shall take effect in
sixty days.
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