PRINTER'S NO. 2287
No. 1856 Session of 1999
INTRODUCED BY BUNT, CAPPABIANCA, COY, HENNESSEY, MELIO, NICKOL,
PRESTON, ROSS, SATHER, SEYFERT, SOLOBAY, STABACK, TANGRETTI,
E. Z. TAYLOR, J. TAYLOR, TRELLO, WILLIAMS, WILT, WOJNAROSKI,
YOUNGBLOOD, M. COHEN, HARHAI, MUNDY AND SAYLOR,
SEPTEMBER 27, 1999
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 27, 1999
AN ACT
1 Regulating the sale of unused property; requiring unused
2 property merchants to maintain certain receipts; and
3 prescribing penalties.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Short title.
7 This act shall be known and may be cited as the Unused
8 Property Market Act.
9 Section 2. Definitions.
10 The following words and phrases when used in this act shall
11 have the meanings given to them in this section unless the
12 context clearly indicates otherwise:
13 "Baby food." Any food manufactured, packaged and labeled
14 specifically for sale for consumption by a child under two years
15 of age. The term includes infant formula.
16 "Medical device." An instrument, apparatus, implement,
17 machine, contrivance, implant, in vitro reagent, tool or other
1 similar or related article, including any component part or
2 accessory:
3 (1) Required under Federal law to bear the label
4 "Caution: Federal law requires dispensing by or on the order
5 of a physician" or which is defined by Federal law as a
6 medical device.
7 (2) Which is intended for use in the diagnosis of
8 disease or other conditions or in the cure, mitigation,
9 treatment or prevention of disease in man or animals or is
10 intended to affect the structure or any function of the body
11 of man or animals.
12 (3) Which does not achieve any of its principal intended
13 purposes through chemical action within or on the body of man
14 or animal.
15 (4) Which is not dependent upon being metabolized for
16 achievement of any of its principal intended purposes.
17 "New and unused property." Tangible personal property that
18 was acquired by an unused property merchant directly from the
19 producer, manufacturer, wholesaler or retailer in the ordinary
20 course of business which has never been used since its
21 production or manufacture or which is in its original and
22 unopened package or container if such personal property was so
23 packaged when originally produced or manufactured.
24 "Nonprescription drug." Any nonnarcotic medicine or drug
25 that may be sold without a prescription and is prepackaged for
26 use by the consumer, prepared by the manufacturer or producer
27 for use by the consumer, properly labeled and unadulterated in
28 accordance with the requirements of the Federal Food, Drug and
29 Cosmetic Act (52 Stat. 1040, 21 U.S.C. § 301 et seq.) and the
30 State food and drug laws. The term includes any herbal product,
19990H1856B2287 - 2 -
1 dietary supplement, botanical extract or vitamin.
2 "Unused property market."
3 (1) An event at which:
4 (i) two or more persons offer personal property for
5 sale or exchange and charge a fee for sale or exchange of
6 personal property, or charge a fee to prospective buyers
7 for admission to the area at which personal property is
8 offered or displayed for sale or exchange; or
9 (ii) persons offer or display personal property if
10 the event is held more than six times in any 12-month
11 period.
12 The term includes an indoor swap meet, flea market or other
13 similar terms regardless of whether the event is held inside
14 a building or outside in the open, as long as the event
15 involves a series of sales sufficient in number, scope and
16 character to constitute a regular course of business.
17 (2) The term does not include:
18 (i) an event that is organized for the exclusive
19 benefit of a community chest, fund, foundation,
20 association or corporation organized and operated for
21 religious, educational or charitable purposes, provided
22 that no part of any admission fee or parking fee charged
23 vendors or prospective purchasers or the gross receipts
24 or net earnings from the sale or exchange of personal
25 property, whether in the form of a percentage of the
26 receipts or earnings, as salary or otherwise, inures to
27 the benefit of any private shareholder or person
28 participating in the organization or conduct of the
29 event; or
30 (ii) an event at which all of the personal property
19990H1856B2287 - 3 -
1 offered for sale or displayed is new, and all persons
2 selling, exchanging or offering or displaying personal
3 property for sale or exchange are manufacturers or
4 authorized representatives of manufacturers or
5 distributors.
6 "Unused property merchant." A person, other than a vendor or
7 merchant with an established retail store in the county where
8 the unused property occurs who transports an inventory of goods
9 to a building, vacant lot or other unused property market
10 location and who, at that location, displays the goods for sale
11 and sells the goods at retail or offers the goods for sale at
12 retail.
13 Section 3. Certain sales at unused property markets prohibited.
14 (a) General rule.--No unused property merchant may offer at
15 an unused property market for sale or knowingly permit the sale
16 of baby food, cosmetics or personal care products or any
17 nonprescription drug or medical device.
18 (b) Applicability.--This section shall not apply to a person
19 who keeps available for public inspection a written
20 authorization identifying that person as an authorized
21 representative of the manufacturer or distributor of such
22 product, as long as the authorization is not false, fraudulent
23 or fraudulently obtained.
24 Section 4. Receipts.
25 An unused property merchant shall maintain receipts for the
26 purchase of new and unused property. The receipts shall contain
27 all of the following information:
28 (1) The date of the transaction.
29 (2) The name and address of the person, corporation or
30 entity from whom the new and unused property was acquired.
19990H1856B2287 - 4 -
1 (3) An identification and description of the new and
2 unused property acquired.
3 (4) The price paid for the new and unused property.
4 (5) The signature of the seller and buyer of the new and
5 unused property.
6 Section 5. Violation of act.
7 It is a violation of this act for an unused property merchant
8 required to maintain receipts under section 4 to knowingly:
9 (1) falsify, obliterate or destroy a receipt;
10 (2) refuse or fail upon request to make a receipt
11 available for inspection within a period of time which is
12 reasonable under the individual circumstances surrounding the
13 request, provided, however, nothing contained in this section
14 shall be construed to require the unused property merchant to
15 possess a receipt on or about his person without reasonable
16 notice; or
17 (3) fail to maintain the receipts required by section 4
18 for at least two years.
19 Section 6. Penalties.
20 A person who violates any provision of this act commits:
21 (1) For a first or second violation, a summary offense.
22 (2) For a third or subsequent violation, a misdemeanor
23 of the third degree.
24 Section 7. Applicability.
25 The provisions of this act shall not apply to:
26 (1) The sale of a motor vehicle or trailer that is
27 required to be registered or is subject to the certificate of
28 title laws of this Commonwealth.
29 (2) The sale of wood for fuel, ice or livestock.
30 (3) Business conducted in any industry or association
19990H1856B2287 - 5 -
1 trade show.
2 (4) Property, although never used, whose style,
3 packaging or material clearly indicates that the property was
4 not produced or manufactured within recent times.
5 (5) Anyone who sells by sample, catalog or brochure for
6 future delivery.
7 (6) The sale of arts or crafts by a person who produces
8 the arts or crafts.
9 (7) Persons who make sales presentations pursuant to a
10 prior individualized invitation issued to the consumer by the
11 owner or legal occupant of the premises.
12 Section 8. Transactions covered.
13 This act shall apply to all new and unused property purchased
14 or acquired on or after the effective date of this act.
15 Section 9. Effective date.
16 This act shall take effect in 60 days.
G23L35DMS/19990H1856B2287 - 6 -