2006 Regular Session
To: Ways and Means
By: Representative Johnson
AN ACT TO REQUIRE FLEA MARKET VENDORS TO KEEP A WRITTEN RECORD OF THE SOURCE OF ALL NEW BRAND NAME MERCHANDISE OFFERED FOR SALE; TO REQUIRE A FLEA MARKET OPERATOR TO CONSPICUOUSLY POST IN PLAIN VIEW A SIGN INFORMING ALL VENDORS THAT FAILURE TO PRODUCE THE WRITTEN RECORD TO LAW ENFORCEMENT IS PUNISHABLE BY A CIVIL PENALTY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) For the purposes of this section, the following terms shall have the following meanings unless the context clearly indicates otherwise:
(a) "Flea market vendor" means any event where:
(i) Two (2) or more persons offer new personal property for sale or exchange and a fee is charged for the privilege of offering or displaying personal property for sale or exchange, or a fee is charged to prospective buyers for admission to the area where personal property is offered or displayed for sale or exchange; or
(ii) Used personal property is offered or displayed for sale or exchange if the event is held seven (7) or more times in any twelve-month period.
(b) "Flea market operator" means the person who is responsible for the operation and management of any event that is described in paragraph (a) of this subsection.
(c) "Vendor" means a person who engages in the retail sale of personal property at a flea market.
(2) This section does not apply to an event:
(a) That is organized for the exclusive benefit of any political subdivision or a nonprofit corporation if no person participating in the organization of the event receives a portion of any:
(i) Admission fee or parking fee charged to vendors or prospective purchasers.
(ii) Gross receipts or net earnings from the sale or exchange of personal property either as a percentage of the receipts or earnings or as salary.
(b) Where all of the personal property offered or displayed is new and all of the persons selling, exchanging, offering or displaying personal property for sale or exchange are manufacturers or licensed retail or wholesale merchants.
(3) (a) A vendor shall keep a written record of the source of all new brand name merchandise offered for sale. Except as provided in paragraph (b) of this subsection, the record shall be a receipt or invoice from the person who sold the merchandise to the vendor. The invoice or receipt shall identify the product offered for sale by the product name and serial, model or other number. The invoice or receipt shall also include a description of all identifying marks inscribed on the product, the price the vendor paid for the product and the signature of the seller. If the seller is:
(i) An individual, the receipt or invoice shall also include the seller's date of birth and driver's license number, the state of issuance and the expiration date. The vendor shall verify the information provided by the seller by comparing the seller's driver's license to the invoice or receipt and signing the invoice or receipt.
(ii) A corporation, the receipt or invoice shall also include the corporation's federal tax identification number, the state of incorporation, the name and address of the corporation's registered agent in this state, if any, and the corporation's principal office address.
(b) The vendor may satisfy the record requirement of paragraph (a) of this subsection by producing a notarized affidavit identifying the source of the merchandise, including the name and address of the seller, the license number of any auctioneer seller and the date and place of purchase of the merchandise.
(c) The vendor shall have the record or affidavit prescribed by this section while the vendor is offering the merchandise for sale. The vendor shall keep the record for one (1) year after the merchandise is sold.
(d) On the request of a law enforcement officer the vendor shall produce the record or affidavit prescribed by this section. The law enforcement officer shall issue the vendor a citation if the vendor fails to produce the record or affidavit. Failure to produce the record or affidavit or falsifying the record or affidavit is punishable by a civil penalty of not more than One Hundred Dollars ($100.00) for each item offered for sale or sold for which the vendor failed to produce the required record or affidavit.
(4) A flea market operator shall conspicuously post in plain view of all vendors a sign informing all vendors that effective on January 1, 2007, failure to produce the record or affidavit prescribed by this section on the request of a law enforcement officer is punishable by a civil penalty of not more than One Hundred Dollars ($100.00) for each item offered for sale or sold for which the vendor failed to produce the required record or affidavit.
(5) (a) Except an authorized representative of a manufacturer or distributor who possesses written proof of authorization for public retail sales, no vendor may sell, offer for sale or knowingly permit the sale at any flea market of any of the following items:
(i) Food manufactured and packaged for sale for consumption by a child under the age of two (2) years.
(ii) Drugs, cosmetics and medical devices as defined in the federal food, drug and cosmetic act (21 USCS Section 321).
(iii) Any product that has an expiration date.
(b) For the purposes of this section "representative of a manufacturer or distributor" means a person who carries and has available for public inspection written proof that the person is authorized by the manufacturer or distributor for the public retail sale of those products that are offered for sale. The written proof shall include the seller's name and may include an expiration date.
(6) (a) Except as provided in paragraph (b) of this subsection, a vendor who violates this act is subject to a civil penalty of not more than One Hundred Dollars ($100.00) for each item offered for sale or sold for which the vendor failed to produce a record or an affidavit as prescribed by this section.
(b) If a vendor subject to a civil penalty under this section presents to the court the record or affidavit prescribed in subsection (3)(d) or the authorization prescribed in subsection (5)(a) and the court verifies that the record, affidavit or authorization is valid, the court may reduce or waive the amount of the penalty.
SECTION 2. This act shall take effect and be in force from and after July 1, 2006.