Chapter 5.08 - AUCTIONS AND AUCTIONEERS

"Auctioneer" means and includes every person who shall, at public outcry, offer for sale, as principal or agent to the highest bidder on the spot, or by any method of sale described in Section 5.08.040, any article of merchandise or property.

(Prior code § 5-9.01(g))

5.08.020 - Jewelry auction defined.

"Jewelry auction" means and includes any sale, or offer for sale, of any platinum, gold, silver, precious stones, semi-precious stones, watches, or other jewelry by public outcry to the highest bidder. Nothing in this chapter shall be construed to permit any sale, or offer for sale, of any jewelry by public outcry whereby any item is offered at a stated price and thereafter at successively or gradually lower prices until an accepter or purchaser is found, or at a stated price with the addition of other merchandise until an accepter or purchaser is found, or by what is commonly known as "Dutch Sale," or "Down-hill Selling," or any other method of a like or similar nature.

(Prior code § 5-9.01(h))

5.08.030 - Auctioneer—Permit required.

It is unlawful for any person to engage in the calling of auctioneer, or to hold, conduct, carry on, or maintain any auction room or place for holding public auction sales, or to advertise or hold himself or herself out to the public as an auctioneer, or to conduct, carry on or maintain any sale of goods by public auction, in the city, unless there exists a valid permit therefor, granted and existing in compliance with the provisions of Chapter 5.02. The investigating official referred to in Section 5.02.030, to whom the application shall be referred, shall be the Chief of Police. Such permit may be granted to a firm or corporation provided such firm or corporation shall designate the member thereof to act as such auctioneer.

(Prior code § 5-9.16)

5.08.040 - Sales by public auction.

Without limiting the generality of the term "sale by public auction," such sale shall include a sale in which, instead of the bidders making increasingly higher bids for an article or articles of merchandise, the seller or auctioneer announces a price at which he or she will sell one or more articles of merchandise and then, if no sale occurs, increasingly adds additional articles of merchandise to those originally offered, with or without varying the previously announced price, until a buyer is finally induced to buy the accumulated articles at the price fixed.

Without limiting the generality of the term "sale by public auction," such sale shall include a sale in which, instead of the bidders making increasingly higher bids for an article or articles of merchandise, the seller or auctioneer announces a price at which he or she will sell one or more articles of merchandise and then, if no sale occurs, decreases the price of that offered until a buyer is finally induced to buy the article or articles offered for sale.

(Prior code § 5-9.161)

5.08.050 - Auctioneer's application for permit.

In addition to the requirements of Section 5.02.060, every person applying for a permit under Section 5.08.030, and all substitutes and criers provided for in Section 5.08.240, shall be fingerprinted at the request of Oakland Police Department. Should any such person be found to have a prior criminal record of conviction of any theft, obtaining money or property by false pretenses, embezzlement, extortion, receiving stolen property, or violating any provisions of law regulating auctions, auctioneers or auction houses, the application for such permit shall be denied. Normally, approximately thirty (30) days are required to process the application subsequent to the taking of fingerprints.

(Prior code § 5-9.162)

5.08.060 - Auctioneer's limited permit.

Any person applying for an Auctioneer's permit who shall establish to the satisfaction of the City Manager that his or her auction business is limited exclusively to dealers for resale of the merchandise or property sold, may be granted a limited permit in lieu of that required by Section 5.08.030. The sale by auction by any person operating under such limited permit and to other than any such dealer for resale shall invalidate such limited permit. The provisions of Sections 5.08.090 and 5.08.100 shall not apply to an auctioneer granted and complying with the restricted purposes of such limited permit.

(Prior code § 5-9.163)

5.08.070 - Auctioneer—Bond—Forfeitures.

No person shall engage in the calling of an auctioneer in the city of Oakland, unless, in addition to the permit required under the provisions of Section 5.08.030, he or she shall have filed with the City Clerk a surety company bond issued by a surety company authorized to do business in the state of California, for the faithful performance of his or her duties, which bond shall be in the principal amount of five thousand dollars ($5,000.00), payable to the city of Oakland. Said bond shall be approved by the City Attorney.

For every violation of any of the provisions of this chapter pertaining to the calling of auctioneer, or to auctions, in addition to such penalty as may be otherwise provided for such violation, such auctioneer shall forfeit to the city the sum of two hundred fifty dollars ($250.00), which amount shall be recoverable upon said bond.

(Prior code § 5-9.17)

5.08.080 - Auctions—False representations—Substituted merchandise false bids.

It is unlawful for any person to sell, or attempt to sell, by auction, or to advertise for sale by auction, any goods, wares or merchandise falsely representing or pretending the same to be, in whole or in part, a bankrupt or insolvent stock, or damaged goods, or goods saved from a fire, or to make any false statement as to the previous history, ownership, quality or character of such goods, wares and merchandise, or for any person to offer for sale at auction any article and induce its purchase by any bidder and afterwards to substitute any article in lieu of that offered to and purchased by the bidder, except with the bidder's knowledge and consent.

It is unlawful for any person to falsely act as bidder in the capacity of what is commonly known as a "capper," "booster" or "shiller" merely for the purpose of increasing the amount of the bids at any auction sale or place for conducting public auctions, or to offer or make any false bid, or pretend to buy any article sold or offered for sale at any public auction.

(Prior code § 5-9.18)

5.08.090 - Auction sale inventory required.

In all cases where a public auction sale is to be held under the provisions of this chapter, an inventory of the articles or merchandise to be sold at public auction must be made and submitted to the Chief of Police not less than three days prior to the sale. The inventory required must show the items to be offered for sale on the premises by public auction and will include, but not be limited to, the lot number or item number, a brief description of the item, its serial number if serialized, and the number of items in the lot. The auctioneer must make and subscribe an oath, to be attached to the inventory, that said inventory contains a true and itemized account of all property to be sold at said auction. Not more than one supplemental inventory may be filed if so filed not less than three days prior to the sale of the merchandise therein listed. At the time of delivery of such inventory, the Chief of Police or his or her representative shall deliver to said auctioneer a receipt for the inventory. The receipt shall show the date on which the inventory was delivered to the Police Department and the date of the intended sale. It is unlawful for any auctioneer or a public auction house to hold a public auction sale unless they have received said receipt from the Chief of Police or his or her representative. It is unlawful to sell or offer for sale at any public auction sale any article which is not listed in the inventory submitted to the Chief of Police prior to the sale.

A copy of all proposed advertisements, pamphlets, leaflets, brochures, catalogs and other literature announcing the public auction sale which the auctioneer intends to distribute or otherwise make available to the public shall be forwarded to the Chief of Police not less than three days prior to the actual date of the auction sale by the licensed auctioneer.

(Prior code § 5-9.181)

5.08.100 - Ownership of auctioned property.

It is unlawful for any auctioneer or any member of a firm operating a public auction house to bid for or to purchase for his or her own use, for resale or for any other purpose any article the property of another person, firm, or corporation given into their custody to be sold at a public auction sale conducted by said auctioneer or operator of said public auction house.

Any auctioneer or operator of a public auction house as defined and covered by this chapter who has in his or her possession merchandise belonging to him or her, or purchases or buys for or on his or her or its own account new or secondhand merchandise, and who sells the same, or offers for sale the same at a public auction, must, in all notices or advertising of said auction sale, which may be either published, printed or distributed, and likewise prior to the commencement of such auction sale, thoroughly and distinctly state and declare that the property so being sold or offered or advertised for sale belongs to, and is the property of, said auctioneer or public auction house. This information will also be submitted with the verified inventory to the Chief of Police.

(Prior code § 5-9.182)

5.08.110 - Interim suspension of auction.

In addition to the provisions for suspension of permit provided for in Chapter 5.02 the Chief of Police shall have the authority to cause an auction sale to be temporarily discontinued when he or she shall have sufficient evidence, in his or her opinion, that any provision of this code regulating auctions has been violated. Immediately thereafter, unless such violation is remedied, the Chief of Police shall forward to the City Manager notice of such termination, together with his or her evidence supporting such action, and proceedings and hearings for the revocation or suspension of the permit shall thereupon be instituted as provided for in said code.

(Prior code § 5-9.183)

5.08.120 - Auctions identifying bidders and buyers.

It shall be the duty of the auctioneer conducting the auction sale to give some description or identification of the person making a bid every time bid is announced, and also to point out or designate the position on the premises or in the area of said bidder.

It shall be the duty of the auctioneer to announce clearly to all buyers or prospective buyers present when there is a "starting price" for an article offered for bid, and to clearly state the said "starting price" prior to the acceptance of any bids.

When an auctioneer accepts a final bid and designates the article or articles as "sold," such action shall be final and bidding shall not be reopened.

(Prior code § 5-9.185)

5.08.130 - Auctions—Identifying properties offered.

It shall be the duty of every auctioneer who shall offer for sale any goods or other articles to be sold, to announce to the persons present at said auction sale, before proceeding to sell the same, the true character, quality, description, kind, weight and other peculiar or identifiable characteristics of the respective properties or articles offered for sale.

(Prior code § 5-9.186)

5.08.140 - Jewelry auctions—Stock in trade and used.

It is unlawful for any person to conduct a jewelry auction in the city except:

The sale of a stock on hand of any person who shall, for the period of one year next preceding such sale, have been continuously in business in the city as a retail or wholesale merchant of such merchandise, and is disposing of his or her stock for the purpose of retiring from business; or

The sale by auction of new or used jewelry by any person who has a valid auctioneer permit.

(Prior code § 5-9.19)

5.08.150 - Jewelry auctions—Time of.

Any jewelry auction of merchandise described in Section 5.08.140A shall be held on successive days, Sundays and legal holidays excepted, and shall not continue more than thirty (30) days in all from the commencement of said sale.

(Prior code § 5-9.21)

5.08.160 - Jewelry auctions—Permit required.

It is unlawful for any person to conduct a jewelry auction unless such person has first procured a permit so to do pursuant to an application filed with the Chief of Police by the city.

(Prior code § 5-9.211)

5.08.170 - Jewelry auctions—Application for permit.

The permit to conduct a jewelry auction shall be granted and shall exist in compliance with the provisions of Chapter 5.02. If the permit is issued for the sale of merchandise described in Section 5.08.140A the application shall set forth, in addition to the requirements specified in Section 5.02.020, the following:

The purpose of the sale;

The date or dates on which the applicant desires to hold a jewelry auction;

The name of the auctioneer who will conduct the auction;

Attached to the application, in duplicate, a detailed inventory, item by item, of the goods, wares and merchandise to be sold, the wholesale value, or cost of the applicant, of each item, and the quality and grade thereof. Each item of merchandise must be numbered separately in the inventory, and the number in the inventory must correspond to the number physically attached to such item. Such inventory, when filed with the Chief of Police must be accompanied by a statement, sworn to by the applicant, that all of the merchandise described in the inventory is a bona fide part of the applicant's stock in trade and is not secured, purchased or brought into his or her place of business for, or in anticipation of, said sale, and that no other merchandise will be brought into said place of business after the date of the filing of said application, and that no merchandise will be sold, or offered for sale, that is not set forth in said inventory, and that each of the statements in said inventory is true and correct to his or her own personal knowledge.

(Prior code § 5-9.212)

5.08.180 - Jewelry auctions—Identification of merchandise.

The applicant must attach a tag to each item of merchandise listed in the inventory submitted to the Chief of Police, which number must correspond with the number of such item in the inventory, and such article when sold must be delivered to the purchaser with the original tag and number intact.

(Prior code § 5-9.213)

5.08.190 - Jewelry auctions—Investigation of application.

Upon receipt of an application for a jewelry auction permit, the Chief of Police or his or her representative shall check each item of the inventory submitted with the actual item in the applicant's place of business, and make an investigation to ascertain the truthfulness of the sworn statement submitted by the applicant.

(Prior code § 5-9.215)

5.08.200 - Jewelry auctions—Duties of police department representative.

A representative of the Police Department shall attend all auctions and check each item offered for sale, or sold, with the inventory filed by the applicant with the Police Department, and enter on such inventory the date of the sale of each item and the price thereof.

(Prior code § 5-9.217)

5.08.210 - Jewelry auctions—Conduct of.

It is unlawful for the person to whom such permit is granted, or the auctioneer, or any other person, to sell or offer for sale any article not listed in the inventory, or to sell or offer for sale any article listed in inventory without first giving the representative of the Chief of Police an opportunity to check the same against the inventory filed with the application, or to make any representation concerning the quality or grade of the article contrary to that set forth in the said inventory.

(Prior code § 5-9.218)

5.08.220 - Jewelry auctions—Place of.

The permit to hold a jewelry auction shall set forth the street address where such auction is to be held, which shall be the applicant's regular place of business, and it is unlawful to hold any such auction at any place other than such address.

(Prior code § 5-9.219)

5.08.230 - Jewelry auctions—Additional requirements.

Any persons conducting a jewelry auction pursuant to Section 5.08.140B shall:

Cause each item of jewelry to be sold at an auction for which a permit is sought to be appraised at fair market value by an appraiser chosen from a list of qualified jewelry appraisers maintained by the Chief of Police. The appraiser shall not be employed or related to the person conducting the auction or have any financial interest in the auction. The Chief of Police shall not place the name of any person on the list of qualified jewelry appraisers unless such person has been regularly engaged in the San Francisco-Oakland metropolitan area in the business of jewelry appraisal or employed as a jewelry appraiser.

Prepare an inventory separate from and in addition to the inventory required by Section 5.08.090 of all of the articles of jewelry to be sold at public auction and submit the same to the Chief of Police not less than fifteen (15) days prior to the date of sale. Each article of jewelry shall be fully and separately described, together with the appraisal specified herein. The appraiser shall sign a statement, which shall be attached to the inventory, that he or she has personally examined and appraised each item listed in the inventory. No supplemental inventory shall be permitted.

Hold all items listed on the inventory specified herein for a period of fifteen (15) days prior to the commencement of the date of sale. No item listed on the inventory shall be delivered to any person or otherwise disposed of during the fifteen (15) day period.

Post a copy of the appraisal required by this section in a conspicuous location on the premises where auction is to be conducted so that it may be viewed by persons attending the auction. The appraisal shall remain posted throughout the conduct of the auction.

Announce the appraisal value of each article of jewelry for which an appraisal is required and the appraisal number immediately prior to the auction of the article.

(Prior code § 5-9.26)

5.08.240 - Auctioneers, substitutes and criers.

Every auctioneer, when unable to attend in person at any auction sale conducted under his or her license and permit therefor, may employ a co-partner or clerk to hold such auction in his or her name, except that any co-partner or clerk who has not been a bona fide resident of the county of Alameda for a period of one year immediately prior to the time of holding such auction may not be so employed. A partner or employee who is eligible to hold an auction sale in the name of such auctioneer shall make and file with the Chief of Police an affidavit to faithfully perform the duties of said auctioneer setting forth the necessary residence requirement and secure the approval of the Chief of Police. Said auctioneer shall be responsible for the acts of his or her partners or employees upon his or her bond. The auctioneer shall be responsible on his or her bond for the acts, errors or omissions of any crier employed by him or her. When a crier is employed, the auctioneer employing him or her, or the person acting in the auctioneer's behalf as mentioned herein, must be present during the auction sale at all times.

(Prior code § 5-9.22)

5.08.250 - Auctions—Records—Reports.

Each auctioneer must keep a record book in which he or she must enter all sales, the amount paid and the date of each sale, and the name and address of the buyer, which book must be open at all times to the inspection of the Police Department of the City and duly authorized representatives thereof. Within seven days after the close of each sale, a report must be filed with the Chief of Police of all sales held under the provisions of this chapter pertaining to auctions, which reports shall set forth a description of the article sold, the persons to whom sold, the amount received, the lot number or pledge number, or stock number of the items so sold, which shall in each case comply with such number contained in the inventory filed previous to holding such sale.

(Prior code § 5-9.23)

5.08.260 - Auctions—Judicial, etc. sales.

The provisions of this chapter shall not apply to judicial sales or sales by executors or administrators.

(Prior code § 5-9.20)

5.08.270 - Violation—Penalty.

Any person or persons aggrieved or damaged by any act of an auctioneer in the City in violation of, or contrary to, the provisions of this chapter, may be liable to an action against such auctioneer and his or her bondsmen upon his or her official bond therefor.

(Prior code § 5-9.25)