BP BHEAD INT H [atlas:bill]

AN ACT Relating to unused property markets; adding a new chapter to Title 19 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The definitions set forth in this section apply throughout this chapter.

(1)(a) "Unused property market" means an event:

(i) At which two or more persons offer personal property for sale or exchange and (A) at which a fee is charged for sale or exchange of personal property, or (B) at which a fee is charged to prospective buyers for admission to the area in which personal property is offered or displayed for sale or exchange; or

(ii) Regardless of the number of persons offering or displaying personal property or the absence of fees at which personal property is offered or displayed for sale or exchange, if the event is held more than six times in any twelve-month period.

(b) The term unused property market is interchangeable with and applicable to "swap meet," "indoor swap meet," "flea market," or other similar terms regardless of whether these events are held inside a building or outside in the open. The primary characteristic is that these activities involve a series of sales sufficient in number, scope, and character to constitute a regular course of business.

(i) An event that is organized for the exclusive benefit of a community chest, fund, foundation, association, or corporation organized and operated for religious, educational, or charitable purposes, so long as no part of an admission fee or parking fee charged vendors or prospective purchasers or the gross receipts or net earnings from the sale or exchange of personal property, whether in the form of a percentage of the receipts or earnings, as salary, or otherwise, inures to the benefit of a private shareholder or person participating in the organization or conduct of the event; or

(ii) An event at which all of the personal property offered for sale or displayed is new, and all persons selling, exchanging, or offering or displaying personal property for sale or exchange are manufacturers or authorized representatives of manufacturers or distributors.

(2) "Unused property merchant" means a person, other than a vendor or merchant with an established retail store in the county, who transports an inventory of goods to a building, vacant lot, or other unused property market location and who, at that location, displays the goods for sale and sells the goods at retail or offers the goods for sale at retail.

(3) "New and unused property" means tangible personal property that was acquired by the unused property merchant directly from the producer, manufacturer, wholesaler, or retailer in the ordinary course of business that has never been used since its production or manufacturing or that is in its original and unopened package or container, if the personal property was so packaged when originally produced or manufactured.

(4) "Baby food" or "infant formula" means food manufactured, packaged, and labeled specifically for sale for consumption by a child under the age of two years.

(5) "Nonprescription drug," which may also be referred to as an "over the counter drug," means a nonnarcotic medicine or drug that may be sold without a prescription and is prepackaged for use by the consumer, prepared by the manufacturer or producer for use by the consumer, properly labeled and unadulterated in accordance with the requirements of the state food and drug laws and the federal Food, Drug and Cosmetic Act. The term "nonprescription drug" does not include herbal products, dietary supplements, botanical extracts, or vitamins.

(6) "Medical device" means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, tool, or other similar or related article, including a component part or accessory, required under federal law to bear the label "Caution: Federal law requires dispensing by or on the order of a physician"; or that is defined by federal law as a medical device and that is intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment, or prevention of disease in man or other animals or is intended to affect the structure or a function of the body of man or other animals, that does not achieve any of its principal intended purposes through chemical action within or on the body of man or other animals, and that is not dependent upon being metabolized for achievement of any of its principal intended purposes.

NEW SECTION. Sec. 2. An unused property merchant may not offer at an unused property market for sale or knowingly permit the sale of baby food, infant formula, cosmetics or personal care products, or any nonprescription drug or medical device. This section does not apply to a person who keeps available for public inspection a written authorization identifying that person as an authorized representative of the manufacturer or distributor of such a product, as long as the authorization is not false, fraudulent, or fraudulently obtained.

NEW SECTION. Sec. 3. (1) An unused property merchant shall maintain receipts for the purchase of new and unused property. Receipts must contain all of the following information:

(a) Date of the transaction;

(b) Name and address of the person, corporation, or entity from whom the new and unused property was acquired;

(d) The price paid for the new and unused property.

(2) It is a violation of this chapter for an unused property merchant required to maintain receipts under this section to knowingly:

(a) Falsify, obliterate, or destroy the receipts;

(b) Refuse or fail upon request to make the receipts available for inspection within a period of time that is reasonable under the individual circumstances surrounding the request; however, nothing contained in this subsection requires the unused property merchant to possess the receipt on or about his or her person without reasonable notice; or

NEW SECTION. Sec. 4. This chapter does not apply to:

(1) The sale of a motor vehicle or trailer that is required to be registered or is subject to the certificate of ownership laws of this state;

(2) The sale of wood for fuel, ice, or livestock;

(3) Business conducted at an industry or association trade show;

(4) Property, although never used, whose style, packaging, or material clearly indicates that the property was not produced or manufactured within recent times;

(5) Anyone who sells by sample, catalog, or brochure for future delivery;

(6) The sale of arts or crafts by the person who produced the arts or crafts;

(7) Persons who make sales presentations under a prior, individualized invitation issued to the consumer by the owner or legal occupant of the premises.

NEW SECTION. Sec. 5. (1) The first violation of this chapter is a misdemeanor.

(2) A second violation of this chapter is a gross misdemeanor.

(3) A third or subsequent violation of this chapter is a felony.

NEW SECTION. Sec. 6. Sections 1 through 5 of this act constitute a new chapter in Title 19 RCW.