H 4090 Session 111 (1995-1996)
H 4090 General Bill, By Harrison
A Bill to enact the Flea Market Vendors Act.-short title
04/12/95 House Introduced and read first time HJ-45
04/12/95 House Referred to Committee on Labor, Commerce and
Industry HJ-45
05/18/95 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-41
05/23/95 House Objection by Rep. Spearman HJ-165
05/24/95 House Tabled HJ-33
05/24/95 House Roll call Yeas-59 Nays-39 HJ-34
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
May 18, 1995
H. 4090
Introduced by REP. Harrison
S. Printed 5/18/95--H.
Read the first time April 12, 1995.
THE COMMITTEE ON
LABOR, COMMERCE AND INDUSTRY
To whom was referred a Bill (H. 4090), to enact the Flea Market
Vendors Act; to amend Title 40, Chapter 41, Code of Laws of
South Carolina, 1976, by adding Article 7 so as to require flea
market operators, etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, by deleting Section
40-41-520 and inserting:
/Section 40-41-520. A vendor shall keep a record of the source
of new merchandise the vendor offers for sale. The record may be
a receipt or an invoice from the person who sold the merchandise to
the vendor or any other documentation that establishes the source of
the merchandise; however, the record or documentation must
include the address of the source. The vendor shall keep the
record with the new merchandise being offered for sale and shall
maintain the record for one year after the merchandise is sold.
Upon the request of a law enforcement officer, the vendor shall
produce the record of the source of new merchandise the vendor
offers for sale. If the vendor fails to produce the requested record
and the law enforcement officer has probable cause to believe the
vendor's possession of the merchandise is unlawful, the officer may
seize the merchandise and hold it in custody as evidence and on a
proper determination return it to its rightful owner, where possible.
A charitable organization offering merchandise for sale is exempt
from the requirements of this section./
Amend further, Section 40-41-525, by deleting item (4) and
inserting:
/(4) cosmetics, as defined in Section 39-25-20 unless that vendor
is licensed or authorized by written agreement or contract to sell or
offer for sale at retail./
Amend further, Section 40-41-525 by adding at the end:
/Nothing in this section or this article prohibits a vendor from
selling or offering for sale a product or item at retail for which the
person is authorized to sell by written contract or agreement./
Amend further, by deleting Section 40-41-530 and inserting:
/Section 40-41-530. A vendor shall issue a receipt to a
customer purchasing goods in excess of ninety-nine dollars./
Amend further, by deleting Sections 40-41-545 and 40-41-560.
Amend further, by deleting SECTION 2 and inserting:
/SECTION 2. Section 12-36-520 of the 1976 Code, as added by
Part II, Section 74A of Act 612 of 1990, is amended to read:
"Section 12-36-520. Before doing business in this State or
receiving a retail license, retailers subject to the license
requirements of this article not having a permanent retail sales
location including, but not limited to, flea market vendors
required to be licensed and vendors operating transient businesses
and temporary businesses may be required to make a cash
deposit or post bond unless otherwise provided by this
section. The bond, determined by the
commission, department may be based upon a step level
bond rate and at a minimum must be equal to at least the
retailers retailer's estimated annual sales tax
liability. However, a person or business selling seasonal
merchandise including, but not limited to, fireworks or produce may
be required to make a cash deposit or post bond."/
Renumber sections to conform.
Amend title to conform.
HARRY F. CATO, for Committee.
A BILL
TO ENACT THE FLEA MARKET VENDORS ACT; TO AMEND
TITLE 40, CHAPTER 41, CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING ARTICLE 7 SO AS TO
REQUIRE FLEA MARKET OPERATORS AND FLEA MARKET,
TEMPORARY, AND TRANSIENT VENDORS TO MEET
CERTAIN REQUIREMENTS TO CONDUCT BUSINESS, TO
PROHIBIT THE SALE OF CERTAIN GOODS, AND TO
PROVIDE CRIMINAL PENALTIES; TO AMEND SECTION 12-36-520, RELATING TO BOND REQUIREMENTS FOR
RETAILERS WITHOUT PERMANENT SALES LOCATIONS, SO
AS TO MAKE A BOND OR CASH DEPOSIT MANDATORY
RATHER THAN PERMISSIVE; TO AMEND SECTION 16-13-110, AS AMENDED, RELATING TO SHOPLIFTING, SO AS TO
AUTHORIZE THAT FINES AND IMPRISONMENT MAY BE
DOUBLED FOR A FIFTH OR SUBSEQUENT OFFENSE; AND
TO AMEND SECTION 16-13-180, AS AMENDED, RELATING
TO RECEIVING STOLEN GOODS, SO AS TO ALSO MAKE IT
UNLAWFUL TO REPACKAGE OR DISTRIBUTE
REPACKAGED STOLEN GOODS AND TO AUTHORIZE
INCREASED FINES FOR THIS OFFENSE AND TO PROVIDE
MITIGATING CIRCUMSTANCES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Title 40, Chapter 41 of the 1976 Code is amended
by adding:
"Article 7
Flea Market Vendors
Section 40-41-505. For purposes of this article:
(1) `Flea market' means an event or location, other than a
permanent retail store, at which space is rented to others to sell or
offer for sale goods at retail.
(2) `Flea market vendor' means a person who sells or offers for
sale goods at retail at a flea market.
(3) `Temporary vendor' means a person who sells or offers to
sell goods at retail in this State for no more than thirty consecutive
days at one location.
(4) `Transient vendor' means a person who does not have a
permanent retail location in this State but who sells or offers to sell
goods at retail in this State and who is required to have a retail
sales license as provided for in Section 12-36-510.
(5) `Vendor' means a flea market vendor, a temporary vendor,
and a transient vendor and who is required to have a retail sales
license as provided for in Section 12-36-510; `vendor' does not
include a person who sells by sample, catalogue, or brochure for
future delivery or who makes sales presentations pursuant to a prior
invitation issued by the owner or legal occupant of the premises.
Section 40-41-510. A vendor who is required to obtain a retail
sales license pursuant to Section 12-36-510 must keep the license
conspicuously and prominently displayed so as to be visible for
inspection by patrons of the vendor at the places or locations at
which the vendor sells or offers to sell goods at retail.
Section 40-41-515. (A) Upon the request of a customer, a state
or local tax or revenue agent, or a law enforcement officer a vendor
shall provide:
(1) the vendor's name and permanent address;
(2) proof of identification by providing a valid driver's license,
special identification card issued by the Department of Public
Safety, a military identification card, or a passport.
(B) If the vendor is a corporation, upon the request of a
customer, a state or local tax or revenue agent, or a law
enforcement officer, the agent of the vendor shall provide the name
of and registered agent for the corporation and the address of the
registered office of the corporation as filed with the Secretary of
State.
Section 40-41-520. A vendor shall keep a record of the source of
new merchandise the vendor offers for sale. The record may be a
receipt or an invoice from the person who sold the merchandise to
the vendor or any other documentation that establishes the source of
the merchandise; however, the record or documentation must
include the address of the source. The vendor shall keep the
record with the new merchandise being offered for sale and shall
maintain the record for one year after the merchandise is sold.
Upon the request of a law enforcement officer, the vendor shall
produce the record of the source of new merchandise the vendor
offers for sale. If the vendor fails to produce the requested record
and the law enforcement officer has probable cause to believe the
vendor's possession of the merchandise is unlawful, the officer may
seize the merchandise and hold it in custody as evidence and on a
proper determination return it to its rightful owner, where possible.
Section 40-41-525. No vendor may sell or offer for sale at retail:
(1) infant formula manufactured and packaged for sale for the
consumption by a child under the age of two years;
(2) drugs, as defined in Section 44-53-110;
(3) devices, as defined in Section 39-23-20;
(4) cosmetics, as defined in Section 39-25-20;
(5) any item from which the expiration date has been removed
or obliterated.
Section 40-41-530. A vendor shall issue a receipt to a customer
purchasing goods in excess of ninety-nine dollars and shall maintain
a copy of the receipt for one year for the purposes of this section
and upon the request of a law enforcement officer shall produce the
copy of the receipt.
Section 40-41-535. A vendor who travels from place to place by
vehicle, in addition to other requirements of this section, shall
obtain a written statement signed by the owner or lessee of any
property, other than a flea market, upon which the vendor offers
goods for sale giving the owner's or lessee' permission to offer
goods for sale upon the property of the owner or lessee. The
statement clearly shall state the name of the owner or lessee, the
location of the premises for which the permission is granted, and
the dates during which the permission is valid. The statement must
be conspicuously and prominently displayed, so as to be visible for
inspection by patrons of the vendor, at the places or locations at
which the goods are to be sold or offered for sale.
Section 40-41-540. (A) A flea market vendor shall register with
the flea market operator before conducting business at the flea
market each time the flea market vendor begins a new period of
conducting business at the flea market.
(B) A flea market operator shall maintain a daily registration list
of all vendors selling or offering goods for sale at the flea market.
This registration shall include and the list shall state clearly and
legibly each vendor's name, permanent address, and where
applicable retail sales and use tax registration numbers. Each daily
registration list maintained pursuant to this subsection must be
retained by the flea market operator for no less than two years and
at any time must be available to any law enforcement officer upon
request.
Section 40-41-545. No flea market owner or operator may lease
space to a vendor if the owner or operator knows the vendor:
(1) is in possession of or intends to sell or offer for sale at retail
stolen goods; or
(2) has been convicted of or pled guilty to or nolo contendere to
receiving, possessing, selling, repackaging, or distributing
repackaged stolen goods.
Section 40-41-550. A person is guilty of a misdemeanor and,
upon conviction, must be fined up to two hundred dollars or
imprisoned up to thirty days or both for:
(1) failing to display a retail license in accordance with Section
40-41-510 when the vendor is required to obtain the license
pursuant to Section 12-36-510;
(2) failing to provide name, address, or identification upon
request pursuant to Section 40-41-515; or
(3) failing to display the statement of an owner or lessee for
permission to offer goods for sale on the property of the owner or
lessee as provided for in Section 40-41-535.
Section 40-41-555. A person is guilty of a misdemeanor and,
upon conviction, must be fined up to one thousand dollars or
imprisoned up to sixty days or both for:
(1) failing to produce upon request the record of the source of
new merchandise the person offers for sale, as required by Section
40-41-520; or
(2) failing to register or maintain a daily register of flea market
vendors as required by Section 40-41-540; or
(3) selling or offering for sale at retail goods from which the
expiration date has been removed or obliterated as prohibited by
Section 40-41-525.
Section 40-41-560. A person is guilty of a misdemeanor and,
upon conviction, must be fined up to five thousand dollars or
imprisoned up to three years or both for leasing space to a vendor
the person knows to be in possession of or intends to sell or offer
for sale at retail stolen goods, in violation of Section 40-41-545.
Section 40-41-565. A person is guilty of a felony and, upon
conviction, must be fined up to ten thousand dollars or imprisoned
up to five years for selling or offering for sale at retail any goods
the sale of which is prohibited by Section 40-41-525(1) through
(4)."
SECTION 2. Section 12-36-520 of the 1976 Code, as added by
Part II, Section 74A of Act 612 of 1990, is amended to read:
"Section 12-36-520. Before doing business in this State or
receiving a retail license, retailers subject to the license
requirements of this article not having a permanent retail sales
location including, but not limited to, flea market vendors
required to be licensed, and vendors operating transient businesses
and temporary businesses may be required to
shall make a cash deposit or post bond. The bond,
determined by the commission, department may be
based upon a step level bond rate and at a minimum must be
equal to at least the retailers retailer's estimated
annual sales tax liability."
SECTION 3. Section 16-13-110(B) of the 1976 Code, as last
amended by Act 184 of 1993, Section 111, is further amended to
read:
"(B) A person who violates the provisions of this
section is guilty of a:
(1) misdemeanor triable in magistrate's court and, upon
conviction, must be fined not more than five hundred dollars or
imprisoned not more than thirty days if the value of the shoplifted
merchandise is one thousand dollars or less;
(2) felony and, upon conviction, must be fined not more than
one thousand dollars or imprisoned not more than five years, or
both, if the value of the shoplifted merchandise is more than one
thousand dollars but less than five thousand dollars;
(3) felony and, upon conviction, must be imprisoned not more
than ten years if the value of the shoplifted merchandise is five
thousand dollars or more.
For a fifth or subsequent offense under this section, the court
may double the fines and imprisonment or both authorized by this
subsection."
SECTION 4. Section 16-13-180 of the 1976 Code, as last
amended by Act 184 of 1993, Section 112, is further amended to
read:
"Section 16-13-180. (A) It is unlawful for a
person to buy, receive, or possess, repackage, or
distribute repackaged stolen goods, chattels, or other property if
the person knows or has reason to believe the goods, chattels, or
property is stolen. A person is guilty of this offense whether or not
anyone is convicted of the theft of the property. A person who
violates the provisions of this section is guilty of a:
(1) misdemeanor triable in magistrate's court if the value of
the property is one thousand dollars or less. Upon conviction, the
person must be fined or imprisoned not more than is permitted by
law without presentment or indictment by the grand jury;
(2) felony and, upon conviction, must be fined not less than
one thousand dollars or imprisoned not more than five years if the
value of the property is more than one thousand dollars but less
than five thousand dollars;
(3) felony and, upon conviction, must be fined not less than
two thousand dollars or imprisoned not more than ten years if the
value of the property is five thousand dollars or more.
(B) In imposing the fines under subsection (A), the county
may double the allowable fines when a person is convicted of
repackaging or distributing repackaged stolen goods, chattels, or
property in violation of subsection (A).
(C) Information provided by a person guilty of an offense under
this section which leads to a conviction for the theft of the stolen
property may be considered by the court as a mitigating
circumstance in imposing penalties under this section.
(D) For the purposes of this section, the receipt of
multiple items in a single transaction or event constitutes a single
offense."
SECTION 5. This act takes effect upon approval by the
Governor.
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