Chapter 5 AUCTIONEERS, HAWKERS AND PEDDLERS ARTICLE 1 Auctioneers 5-1. Certain sales prohibited. 5-2 License required for auctions; application; fees. 5-3. Bond required. 5-4. Records to be maintained. 5-5. Records open to inspection. 5-6. Limitations upon articles to be sold. 5-7. Time limits. 5-8. Nighttime sales prohibited. 5-9. Misrepresentation of goods not allowed. 5-10. Misrepresentation of type of sale prohibited. 5-11. Bidding practices. 5-12. Labeling. 5-13. Violation and penalty. 5-14. Exceptions. ARTICLE II Solicitation, Hawking and Peddling 5-15. Definitions 5-16. License Requirements; Fee 5-17. Non-Applicability 5-18. Application 5-19. Restrictions 5-20. License Revocation, Violations and Penalties ARTICLE III Validity, Effective Date 5-21. Validity. 5-22. Effective date. [History: Adopted Malone Village Board 2-8-54; effective 2-22-54. Amendments noted where applicable.] ARTICLE I Auctioneers 5-1. Certain sales prohibited. No person shall offer for sale on any of the public streets, lanes, byways, public park or ground of the Village of Malone, or in any building therein, any article within which is concealed money or jewelry or other article or device, the purpose of which is to make more ready the sale or disposal of goods, ware or merchandise to be disposed of. 5-2. License required for auctions; application; fees. No person shall act as an auctioneer of personal property nor shall any person hold or Village of Malone without first obtaining a license from the Mayor of said Village of cause to be held any public auction or public venue of personal property within the Malone. The said Mayor or his designee, shall issue licenses to such applicants as he shall deem fit and proper for such purposes. Every such license shall be countersigned by the Clerk of the village, who shall keep a record thereof and of the amount of the fee to be paid therefor; and upon presentation of such license to the Treasurer of the village, so signed and countersigned, and the payment to the Treasurer of such fee, the Treasurer shall endorse thereon his receipt of the license fee. The license shall not take effect until the receipt of the Treasurer shall have been endorsed thereon. The fee for each such license is hereby fixed at one hundred dollars ($100). Every license issued shall expire on the 31st day of December next succeeding the day on which it is granted. Every such license shall contain the name and residence address of the person to whom it is issued and no other person than the one named therein shall act as auctioneer or hold or cause to be held any public auction or venue of personal property under such license. Any applicant who shall have been refused such license by the Mayor may apply to the Board of Trustees therefor at a meeting thereof and the same may be granted or refused by such Board. The Mayor may suspend any license granted under this article until the next meeting of the Board of Trustees, and thereupon the said license may be revoked or continued by the Board of Trustees. The holder of the license so suspended may appear before the said Board and be heard with reference to the matter.
5-3. Bond required. No person shall be entitled to an auctioneer s license hereunder, or act as auctioneer on the sale at public auction of personal property in the Village of Malone, where a license is required hereunder, until he has entered into a joint and several bond to the Village of Malone with two (2) sufficient sureties, to be approved by the Mayor, or with a surety company authorized to issue surety bonds in the State of New York, under the penalty of five thousand dollars ($5,000), conditioned that he will faithfully perform his duties as such auctioneer and render such accounts and pay such duties and monies as such auctioneer as may be required of him by law to the Village of Malone, or to any person. 5-4. Records to be maintained. Every auctioneer or person engaged in the business of selling personal property at auction, whether acting in his own behalf or as officer, agent or representative of another shall, upon receipt or acceptance by him of any personal property for the purpose of sale at auction and before offering the same for sale at auction, write or cause to be written in a book to be kept by him for the purpose, the name and address of the person who employed him to sell such personal property at auction; the name and address of the person for whose benefit, behalf or account such personal property is to sold at auction; the name and address of the person from whom such auctioneer received or accepted such personal property; the name and address of the person who was the owner, the authorized agent of owner or the consignor of such personal property immediately prior to the receipt or acceptance for the purpose of sale at auction of the same by such auctioneer; the location with street and number of any such personal property immediately prior to the receipt or acceptance of same by such auctioneer for the purpose of sales at auction; the date of the receipt or acceptance by such auctioneer of such personal property for the purpose of sale at auction; the place and street and number, if any, in which such personal property is to be held, kept or stored until sold or offered for sale at auction; a description of such personal property and the distinctive marks thereon, if any, and the terms and conditions upon which such auctioneer received or accepted such personal property for sale at auction. The word person as used in this section includes a corporation, joint stock association or co-partnership. The said book when written as hereinbefore required shall be the inventory to be sold at auction. 5.5 Records open to inspection. The said book and the entries therein made, as provided by the preceding section, shall at all reasonable times to open to the inspection of the mayor and the Chief of the Police Department of the village, the District Attorney of Franklin County and any person who shall be duly authorized in writing for that purpose by any or either of them, and shall exhibit such authorization to such auctioneer and/or person licensed hereunder. In addition to inspection of said book, the same authorities may at any time during the auction sale examine all records of the establishment pertaining to the receipt of merchandise after the commencement of the auction sale. 5-6. Limitations upon articles to be sold. During any sale by auction no additions whatever shall be made to the stock of merchandise set forth in the inventory as written in said book unless such additions shall be recorded and appropriately labeled as merchandise so added. Upon the offering for sale any such merchandise so added the auctioneer shall announce that such articles have been added to the stock of merchandise since the auction started. 5-7 Time limits. No sale at a public auction shall continue for more than thirty (30) days, Sundays and legal holidays excepted, from the day of the beginning of the sale. Such sale may continue for thirty (30) additional days upon written permission of the Mayor, which permission shall be granted by the Mayor in his discretion for good cause. 5-8. Nighttime sales prohibited. It shall be unlawful for any person, firm or corporation to sell, dispose of or offer for sale in the Village of Malone at public auction, or to cause or permit to be sold, disposed of or offered for sale in said Village of Malone at public auction, between the hours of 6:00 P.M. and 8:00 A.M. the following morning, articles of personal property, whether the same shall be their own property or whether they shall sell the same as agents or employees, or otherwise. 5-9. Misrepresentation of goods not allowed. No auctioneer of personal property shall misrepresent the quality, kind or value of any article at any auction sale. 5-10. Misrepresentation of type of sale prohibited. No person, firm or corporation shall sell or offer for sale any goods, wares and merchandise by auction or advertise for sale any goods, wares or merchandise, falsely representing or pretending that such goods, wares ore merchandise in whole or in part, are a part of a bankrupt or insolvent stock or damaged goods, or goods saved by fire, or make any false statement as to the purchase, history or character of such goods, wares or merchandise. 5-11. Bidding practices.
No person shall act as a by-bidder or what is commonly known as a capper, booster or shiller at any public auction or place or offer or make any false bid to buy or to pretend to buy any such article sold or offered for sale at any public auction sales. 5-12. Labeling. It shall be unlawful for any person licensed hereunder to offer for sale by auction any article to which there is not attached a card or ticket or label containing a true and correct statement plainly written or printed in English specifying the kind and quality of the metal of which such article is made or composed, or the percentage of karat or purity of such metals. If such articles are plated or overlaid, then such tag or label shall contain a true statement of the kind of plate. When precious stones are for sale or sold by auction as such or as part of an article of jewelry, such written statement shall set forth the true name, weight and quality of such stone or stones. When semiprecious stone are offered for sale or sold by auction as such or as part of an article of jewelry, such written statement shall set forth the true name of said stones. When imitations of precious or semiprecious stones are offered for sale or sold by auction as such or as part of an article of jewelry, said imitations shall be described or defined as synthetic or imitations of such stones as they purport to represent. When watches, clocks and electrical appliances are sold, the true names of the manufacturers shall be stated in writing and no parts of the movements or mechanism thereof shall be substituted or contain false and misleading names or trade marks; neither shall secondhand or old movements be offered for sale in new cases without a true statement to that effect. Used and rebuilt watches should be so indicated in accordance with the New York State law. Such tag or label shall remain securely attached to any such article or merchandise and shall be delivered to the purchaser as a true and correct description and representation of the article sold, and it shall be deemed prima facie evidence of intent to defraud in case such written statements are not a true and correct description and representation of such articles sold. 5-13. Violation and penalty. Any person, firm or corporation who shall violate or fail or refuse to comply in any way with any of the preceding provisions of the Article shall be liable to a penalty of not more than one hundred dollars ($100) for each offense. In addition, such violation shall constitute disorderly conduct and the person violating the same shall be a disorderly person to be punished according to law. The Board of Trustees may enforce obedience to the provisions of this Article by injunction. 5-14. Exceptions [Amended 1-8-79 by L.L. No. 1, 1979] Notwithstanding any provision herein to the contrary, the Village Board may, upon the application of an interested party, permit fund-raising auctions held for the benefit of schools, churches, social or service organizations or other nonprofit and charitable groups, and items to be auctioned are those consigned or donated by local residents or businessmen, upon such terms or conditions and at such times as the Board of Trustees may prescribe. ARTICLE II Solicitation, Hawking and Peddling 5-15. Definitions [Amended x-xx-2010] Any person, firm, organization, business, individual or association that personally or through its agents, employees or officers vends food, goods and/or other wares, solicits business, takes orders and sells merchandise on a house to house, door to door basis, either by covering the entire Village and all the residents in the Village or by selecting at random individual or selective dwellings, houses or residents of the Village. The said terms of "peddler," "solicitor," "vendor" and "house to house retailer" shall be broadly construed to mean anyone who goes from residence to residence by appointment or otherwise and solicits orders, contracts or transacts business, or who sets up a stand or who occupies premises temporarily or who is a transient merchant or itinerant vendor who engages or proposes to engage temporarily in merchandising business in this municipality and occupies a room, building, tent, lot, stand or other premises for the purposes of selling goods, wares and merchandise in the Village of Malone. 5-16. License Required; Fee [Amended x-xx-2010] It shall be unlawful for any person to solicit, hawk, vend, peddle or sell goods, wares or merchandise or solicit trade within the Village of Malone without first obtaining a license therefor from the Village of Malone. The fee for such license shall be one hundred dollars ($100) per calendar year, each license expiring on December 31 of the current year. Any person or entity seeking a license under the conditions included within this chapter that vends food, drinks or other edible items must provide proof to the Village of Malone that they have secured any and all appropriate licenses and approvals from the New York State Department of Health (NYSDOH) and/or the Franklin County Department of Public Health, and that their cart, stand, vendor service unit or any other portable food service unit has been properly inspected by the Franklin County Food Safety Inspector, the New York State Department of Health and/or any other entity deemed appropriate by the Village of Malone. No person shall be allowed to vend food, drinks or other edible items that are not pre-packaged and sealed by the manufacturer without adhering to any and all public health and sanitation laws imposed by the Federal, State, County and/or local government entities.
5-17. Non-Applicability. [Added x-xx-2010] The requirement of obtaining a license shall be held not to include the following persons who are expressly exempt from obtaining a license but are otherwise required to adhere to the standards and requirements otherwise listed in this Chapter: A. The peddling of meats, fish, fruit and farm products by farms and persons who produce such commodities; fuel vendors; and those who are engaged solely in wholesale business selling to retailers. B. Hawking or peddling by an honorably discharged soldier, sailor or marine who is disabled as a result of injuries received while in the naval or military service of the United States. C. The holder of a license granted pursuant to 32 of the General Business Law. D. Licensed real estate agents engaged in the sale of real estate. E. Any nonprofit religious, charitable, educational, civic or political organization. Including but not limited to the Boy Scouts, Girl Scouts, local volunteer firemen, Kiwanis, Lions, Rotary or any other appropriate entity recognized by the Malone Village Board. F. Any person engaged in hawking vending, peddling, selling or solicitation of trade at a fair, special event, trade show, automobile show and/or mass gathering where a separate mass gathering and/or special event vending permit, as defined under those respective sections of Malone Village Code, has been procured. 5-18. Application. [Added x-xx-2010] A. Any person desiring a license shall file with the Village of Malone an application which shall contain the following information and shall be made under oath: i. Name of applicant. ii. Permanent home address. iii. Name and address of firm represented and names and addresses of the persons from whom goods making up the stock were or are to be purchased. iv. Three business references. v. The place or places of residence of the applicant for the preceding three years. vi. The length of time for which the license is desired. vii. A description of the wares to be offered for sale. viii. The number of arrests or convictions for misdemeanors or crimes and the nature of the offenses for which arrested or convicted. ix. To the application must be appended a letter from the firm for which he purports to work, authorizing the applicant to act as its representative. B. In addition, if one is selling merchandise in their possession, the following shall be required: i. A sworn statement of the true invoice of the amount, average quality or kind, and value of the goods to be offered for sale. ii. A statement of the location of such goods by street or number and whether on the premises from which it is sold or in a warehouse. iii. To the application must be appended, in the discretion of the Village of Malone, the bills or invoices of purchase from such goods. C. Upon receipt of an application, a copy shall be referred to the Village of Malone Police Department, which shall investigate the applicant's business and moral character for the protection of the public good and file a recommendation with the Village of Malone. D. If as a result of such investigation, the applicant's character or business responsibility is found to be unsatisfactory, the Police Department shall recommend on such application its disapproval and its reasons for the same and return said application to the Office of the Village of Malone, who shall notify the applicant that the application is disapproved and that no permit and license will be issued. E. If as a result of such investigation, the character and business responsibility of the applicant are found to be satisfactory, Village of Malone shall endorse on the application their approval, execute a permit addressed to the applicant to allow the business applied for to operate and return said permit, along with the application, to the Village Clerk, who shall, upon approval by the Board of Trustees and upon payment of the prescribed license fees, issue a license. Such license shall contain the signature and seal of the Office of the Village of Malone and shall show the name, address and photograph of the licensee, the kind of goods to be sold there-under, the amount of fee paid, the date of issuance and the length of time the same shall be operative, as well as the license number and other identifying description of any vehicle used in such soliciting or canvassing. The license shall be in a form designated by the Village of Malone and in substance shall state the following:.......................... (name/entity) is hereby licensed to peddle and solicit and vend, sell and deliver food, retail merchandise and goods or engage and
enter into contracts within the Village of Malone, Franklin County, New York, and shall constitute a receipt for the payment of the license fee. F. The Village Clerk shall keep a permanent record of all licenses issued. 5-19. Restrictions. [Amended x-xx-2010] In addition to verifying the moral character of the applicant, the Village of Malone or their designee shall also verify the financial information approving or rejecting the application. Upon verification of the application and payment of the prescribed fee, the licenses shall be issued by the Village of Malone. The license issued shall not authorize any person, except the designated person named in said license, to engage in business there-under. Said license shall not be transferable from the person to whom issued to any other person. A separate license must be obtained by a licensed peddler for every agent or employee working for him. A separate license must be obtained by a licensed transient merchant for each branch or separate place of business in which his business is conducted, and each license shall authorize the person to conduct business only at the location which is indicated therein. The Village of Malone or their designee shall keep a record of all applications and licenses issued within the Village of Malone for each calendar year and shall report to the Village Board annually as to the fees received and summarize the licenses issued. Every person holding a license under this chapter shall be required to carry the license with them at their business premise(s) while engaged in the business licensed. They must produce the license at the request of any official of the Village and of any other person with whom he wishes to conduct his said business. All hawking, vending, peddling or selling of food, goods, wares or merchandise or soliciting of trade upon the public streets of the Village of Malone shall also be further subject to the following terms and conditions: A. Unless the license shall specifically provide otherwise, a licensee shall not stand or permit the vehicle used by them to stand in front of any premises for any time if the owner or lessee of the premises objects. B. No such hawking, vending, peddling, selling or solicitation of trade shall take place within two hundred fifty (250) feet of any school in said village between the hours of 8:00 A.M. and 4:00 P.M. on any school day. C. No sale shall be made to any person while such person is standing in any street in said village. D. No person licensed under this chapter shall call attention to their operation by crying out, by use of a megaphone, by blowing a horn, by ringing a bell (other than the door bell at a residence or business) or by any other loud noise. Any person licensed under this chapter reported to be using said loud noises shall be subject to revocation of their license by means outlined in this chapter. Licensees engaged in the sale of frozen ice cream, yogurt or other frozen dessert products shall be allowed to utilize music and loudspeakers on a mobile ice cream truck provided said noise is not deemed by the Village Board to be a public nuisance. E. Any person licensed under this chapter shall not operate on private property without the expressed, written consent of the legally-recognized landowner. F. Any person licensed under this chapter who requires signage for their operation shall conform to all standards and requirements listed in Chapter 48 ( Signs ) of the Village Code of Malone. G. This law does not override any other required permit by any other government agency. 5-20. License Revocation, Violations and Penalties. [Amended x-xx-2010] A license may be revoked by the Village Board by reason of the violation of the terms of the license, the violation of any municipal ordinance or state or federal statute or falsification in applying for a license. The licensed person must be granted a hearing by the Village Board upon their request. A license may be suspended for not more than four (4) weeks by the Village of Malone without a hearing Any person violating the preceding sections shall be liable to a penalty of not more than two-hundred and fifty dollars ($250) for each offense and/or not more than fifteen (15) days imprisonment. A conviction for violation of this Chapter shall constitute a forfeiture and cancellation of the license without further action by the Village of Malone and/or the Village Board. ARTICLE III Validity, Effective Date [Amended x-xx-2010] 5-21. Validity. In the event that any of the provisions of this ordinance shall be held unconstitutional, the remaining provisions not affected by such decision shall remain in full force and effect. 5-22. Effective date. Except as to persons duly served with a certified copy of this ordinance pursuant to the provisions of 95 of the Village Law, 1 this ordinance shall take effect upon acceptance and certification of the Local Law by the New York State Department of State. 1 Editor s Note: See now Village Law 20-2002.