2009 California Business and Professions Code - Section 21660-21669.1 :: :: Article 6. :: Swap Meets, Flea Markets, And Open-air Markets (2024)

BUSINESS AND PROFESSIONS CODE
SECTION 21660-21669.1

21660. It is the intent of the Legislature in enacting this articleto require the reporting of personal property exchanged, sold, oroffered for sale or exchange at swap meets, flea markets, andopen-air markets, and information regarding vendors selling ordisplaying new merchandise, for the purpose of ensuring that swapmeet, open-air market, and flea market operators and vendors are incomplete compliance with all state laws and regulations applicable todisplaying, offering for sale, selling, and exchanging new andpreviously owned merchandise. This article shall apply to operators and vendors at swap meets,flea markets, and open-air markets unless the merchandise or thetransaction is specifically exempt under this article and shall notbe superseded or supplanted by any provisions or ordinances orcharters of any city, county, or city and county, nor supplemented byany local ordinances or charters or provisions. Nothing contained inthis article shall be deemed to affect the land use and zoningregulatory power of a local agency, nor be construed to require anylocal agency to permit swap meets, flea markets, or open-air marketsif local land use or zoning regulations prohibit those operations. Any transaction that is regulated by this article shall not besubject to the provisions of Article 4 (commencing with Section21625), regulating transactions in identifiable secondhand tangiblepersonal property. No person, partnership, or corporation shall beconsidered a "secondhand dealer" within the meaning of Section 21626because of activities regulated by this article. Article 5 (commencing with Section 21650) of this chapter shallnot apply to operators or vendors at swap meets, flea markets, oropen-air markets.21661. (a) As used in this article, the term "swap meet" includes aflea market or an open-air market and means an event at which two ormore persons offer merchandise for sale or exchange and that meetsone of the following conditions: (1) A fee is charged for the privilege of offering or displayingmerchandise for sale or exchange. (2) A fee is charged to prospective buyers for parking or foradmission to the area where merchandise is offered or displayed forsale or exchange. (3) The event is held more than six times in any 12-month period. (b) Notwithstanding subdivision (a), the term "swap meet," as usedin this article, includes a flea market or an open-air market andmeans an event, regardless of the number of persons offering ordisplaying personal property or the absence of fees, at which usedpersonal property is offered or displayed for sale or exchange if theevent is held more than six times in any 12-month period. (c) The term "swap meet," as used in this article, isinterchangeable and applicable to "flea markets," "indoor swap meets,""open-air markets," or other similar terms, regardless of whetherthese events are held either inside a building or outside in theopen. The primary characteristic is that these activities involve aseries of sales sufficient in number, scope, and character toconstitute a regular course of business. (d) "Operator," as used in this article, means any person,partnership, organization or corporation that controls, manages,conducts or otherwise administers a swap meet. (e) "Vendor," as used in this article, means any person,partnership, organization or corporation who exchanges, sells, oroffers for sale or exchange any merchandise at a swap meet. A swapmeet vendor shall be classified according to the followingcategories: (1) A "casual swap meet vendor" means a vendor who participates ina swap meet two times or less per year. (2) A "regular swap meet vendor" means a vendor who participatesin a swap meet three or more times per year.21662. The provisions of this article shall not apply to: (a) An event held not more than two times per calendar year thatis organized for the exclusive benefit of any community chest, fund,foundation, association, or corporation organized and operated forreligious, educational, hospital, or charitable purposes, if no partof any admission fee or parking fee charged vendors or prospectivepurchasers, or the gross receipts or net earnings from the sale orexchange of merchandise, whether in the form of a percentage of thereceipts or earnings, as salary, or otherwise, inures to the benefitof any private shareholder or person participating in theorganization or conduct of the event. (b) An event at which all of the merchandise offered or displayedis new, and all persons selling, exchanging, offering, or displayingmerchandise for sale or exchange are manufacturers or licensed retailor wholesale merchants. (c) Any vehicle or trailer or any vehicle accessory or vehiclepart usable for a motor vehicle eligible for vehicle registrationunder Section 5004 of the Vehicle Code, and items of memorabilia orhistory, or both, relating to these vehicles.21663. (a) Except as provided in Section 21663.1, every vendorshall report all merchandise offered or displayed for sale orexchange on a form, prescribed or approved by the CaliforniaDepartment of Justice, containing all the following information: (1) The name and address of the vendor. (2) A description of the merchandise offered for sale or exchange,including serial numbers and personal identification marks, or ifthere is no serial number, other identification marks or symbols, ifany, or a general description of the item. (3) A certification by the vendor that to his or her knowledge andbelief, the information contained on the form is true. (4) The make, year, color, state of registration, and licensenumber of the vehicle or vehicles in which the merchandise istransported to the swap meet. (5) The California seller's permit number (State Board ofEqualization sales tax number), if any, of the vendor. (6) The vendor's motor vehicle driver's license number and itsstate of issuance or California identification card numbers. (7) If the vendor is an agent of an individual, company,partnership or corporation, the name and business address of theprincipal. (8) The dates of sale for which the report is made. (9) A receipt number given by the operator for the dates of thesale or the space used by the vendor. (10) A requirement that the vendor check an appropriate box thatsets forth his or her permit number for sales tax purposes. If the vendor's permit number is not listed in the appropriateplace on the form, the vendor shall indicate that he or she has notand does not contemplate making more than two sales of sufficientsize, scope, and character within a 12-month period to require apermit. (b) In addition to the official governmental form, consisting ofan original and at least two copies, the information required may berecorded on a computerized or other similar record that contains thesame information required by subdivision (a). (c) In no case shall a swap meet owner or operator be liable orresponsible for the accuracy of, or any discrepancy in, anyinformation submitted by the vendors on the forms provided to them bythe swap meet owners or operators.21663.1. (a) A vendor selling or displaying new merchandise and avendor holding a business license issued by a city, county, or cityand county of this state are not required to comply with Section21633 if the swap meet is conducted at the same location at leastonce per month on real property owned by the operator or leased tothe operator for a period of not less than one year. (b) A vendor meeting the conditions of subdivision (a) shall, at aminimum, provide the operator with the following information priorto offering or displaying merchandise for sale at the event: (1) The name and address of the vendor. (2) The vendor's California seller's permit number (State Board ofEqualization sales tax number). (3) The vendor's motor vehicle driver's license number and itsstate of issuance or his or her California identification cardnumber. (4) The vendor's business license number and its city or county ofissuance, unless the vendor is operating under a business licenseissued to the operator. (c) The operator shall maintain the information required by thissection in written or electronic form for six months after the dateof its receipt and shall make copies of the information available forinspection, upon request, to any peace officer or any authorizedrepresentative of the Board of Equalization or Department of Justice. (d) In no case shall the operator be liable for the accuracy of,or any discrepancy in, any information submitted by a vendor.21664. (a) The swap meet operator shall obtain sufficient blankforms from the Department of Justice at a cost not to exceed theactual cost to the department, or shall cause to be printed and beavailable sufficient forms approved by the department, for the use ofvendors attending the swap meet, and shall distribute them tovendors as needed. The vendor shall submit the completed form to theoperator who shall note on the vendor's copy that the vendor hassubmitted the form. The vendor shall submit the form to the swap meetoperator prior to the close of the business day on which the item isto be placed on sale. The swap meet operator shall provide this formrequired by subdivision (a) of Section 21663 to the chief of police,if the swap meet occurs within the territorial limits of anincorporated city, or the sheriff, if the swap meet occurs outside acity, within 24 hours, or, before the end of the first working dayfollowing the swap meet. The original shall also be available to theState Board of Equalization to permit them to detect possible salestax evasion. The reports shall not be utilized by a chief of police,a sheriff, the Department of Justice, or any other governmentalagency for the purpose of providing a permanent record of propertyownership, nor shall the information derived from these reports formthe basis for any record other than reports which assist in tracingand recovering of stolen property or assist in detecting sales taxevasion. (b) Every vendor shall submit to the swap meet operator the formdisclosing the information required by subdivision (a) of Section21663 for each swap meet at which he or she is a vendor prior to theclose of the business day at which the item is to be placed on sale.Items described in reports previously submitted pursuant to paragraph(2) of subdivision (a) of Section 21663 may be omitted from thedescription on the forms submitted at subsequent swap meets if thevendor furnishes the swap meet operator of each subsequent swap meetwith two copies of the report previously submitted, marked toindicate personal property currently being offered or displayed. (c) A vendor who regularly offers or displays for sale or exchangeany new or used personal property or merchandise shall be requiredto submit to the swap meet operator the form disclosing theinformation required by subdivision (a) of Section 21663 only onceevery 60 days. The vendor shall, however, submit a new report at anyswap meet at which he or she is a vendor and offers or displays forsale or exchange any personal property not included by genericclassification in the previously submitted report. For purposes ofthis subdivision, a vendor shall be deemed to regularly offer ordisplay for sale or exchange any items of merchandise if such vendorparticipates for four or more days in a month at a swap meetconducted at the same location. Any vendor claiming to be a regularseller of new or used merchandise under the provisions of thissubdivision shall so indicate on the bimonthly report. (d) Every vendor shall submit to the swap meet operator the formdisclosing the information required by subdivision (a) of Section21663 for each swap meet at which he or she is a vendor prior to thebusiness day on which the item is to be placed on sale. A vendor whor*gularly offers or displays merchandise for sale or exchange shallbe required to submit to the swap meet operator the form disclosingthe information required by subdivision (a) of Section 21663 onlyonce every six months, provided the vendor has a written agreementwith the swap meet operator for a periodic term of one month orlonger. All other casual vendors shall submit the form disclosing theinformation required by subdivision (a) of Section 21663 on eachinstance of offering merchandise for sale or exchange at the swapmeet.21665. (a) Swap meet operators shall retain a copy of the reportscollected by them for six months and shall make the copies availablefor inspection, upon request, by a peace officer as defined inSection 830.1 or subdivision (a) of Section 830.3 of the Penal Code,or a peace officer of the Department of the California Highway Patrolas defined in subdivision (a) of Section 830.2 of the Penal Code,when the swap meet occurs on state property, or properly identifiedrepresentatives of the State Board of Equalization or Department ofJustice. (b) Vendors shall have available for inspection during the swapmeet a completed copy of the report form which was submitted to theswap meet operator describing the goods offered or displayed for saleor exchange at the swap meet.21666. (a) Upon request, a vendor shall provide the purchaser awritten receipt disclosing the vendor's name and address for anyitems purchased which has a selling price in excess of fifteendollars ($15). (b) No vendor shall offer or display at a swap meet any new orused personal property or merchandise of a kind which the swap meetoperator has expressly prohibited. Every swap meet owner shall postor display in prominent places at the swap meet, or give writtennotice to every vendor prior to the commencement of a swap meet ofthe kinds of personal property or merchandise which may be notoffered for sale or exchange. The swap meet owner or operator shallalso post a sign at the main entrance of the swap meet which statesthat vendors are required to issue receipts in accordance withsubdivision (a).21667. A violation of any provision of this article, exceptsubdivision (b) of Section 21666, is a misdemeanor and may bepunishable by up to six months in county jail, a fine of fiftydollars ($50) for the first violation, one hundred dollars ($100) forthe second violation, and two hundred dollars ($200) for the thirdand subsequent violations.21668. A chief of police of a city or the sheriff of an areaoutside of the city may waive any requirement of this article forswap meet operators and vendors in the city or area outside of thecity if the chief of police or sheriff determines it is not necessaryor appropriate in the public interest to impose the requirement. Ifthe swap meet is located in both the city and area outside of thecity, the chief of police of the city has the authority to grant thewaiver authorized by this section.21669. (a) All swap meets which are conducted two or more times percalendar year on any premises or property owned or leased by anycity, county, city and county, state, or any other local governmentalagency, entity, or board, shall comply with all of the followingprocedures: (1) The swap meet operator shall have a valid business license. (2) The swap meet operator shall have a valid California seller'spermit number (State Board of Equalization sales tax number), ifapplicable. (3) The swap meet operator shall provide the state or localgovernmental entities described in this subdivision upon whoseproperty the swap meet is being held, a certificate of insurancecertifying that the swap meet operator maintains public liability andproperty damage insurance for the operation of the swap meet of atleast two million dollars ($2,000,000), and that the policy namesthat governmental entity as an additional insured under the policy. (4) The swap meet operator shall provide the state or localgovernmental entity a hold harmless and idemnification agreement forhis or her operation of the swap meet and activities and acts arisingfrom that swap meet. (5) The swap meet operator shall comply with all other provisionsof this article relating to swap meets. (b) State or local governmental entities shall not operate ormanage a swap meet for profit in direct competition to a privateenterprise, unless they comply with subdivision (a) of Section 21662.21669.1. In addition to the requirements specified in subdivision(a) of Section 21669, all swap meets conducted on the premises orproperty of a state or local governmental entity that has or expectsto have an average daily attendance of 10,000 or more persons shallprovide all of the following: (a) A statement of ownership, including the identity ofindividuals holding a financial interest of 5 percent or more. (b) A sworn statement that no individuals who have a financialinterest of 5 percent or more in the swap meet have been convicted ofany crime involving dishonesty or moral turpitude. (c) A financial statement showing the operator's financialcapability to operate a major swap meet and to meet any financialobligations to the lessor and subcontractors. (d) A statement that the operator is not knowingly delinquent inany payments owed to a state or local governmental entity and that heor she is not knowingly in violation of any state or local law orordinance related to public health or safety standards. (e) Evidence that the operator has a minimum of five years ofexperience in the management and operation of a swap meet for profitwith an average daily attendance of 5,000 or more. (f) A plan for operations, including security, crowd control,sanitation, and emergency medical response.