Chapter 47

§ 4701 Purpose. The purpose of this chapter is to protect the public from improper sales techniques by transient retailers, and to provide a method of processing warranty claims on merchandise sold by transient retailers. 65 Del. Laws, c. 391, §  1 ; § 4702 Definitions. As used in this chapter, the following terms shall have the respective meanings ascribed by this section: (1) “Operator” means the owner or operator of any building, structure, motor vehicle or real estate, whether fixed or mobile, which is leased or rented to a transient merchant. (2) “Registered agent” as used in this chapter may be, but is not required to be, the agent appointed pursuant to § 132 of Title 8. (3) “Temporary or transient business” means any exhibition or sale of goods, wares or merchandise which is carried on in any building, structure, motor vehicle or real estate for less than either of following times during any consecutive 12-month period: a. A period of 4 months’ duration between commencement and cessation of the conduct of business; or b. A period of 90 actual days during which business is conducted. (4) “Transient retailer” means any person, firm or corporation, as principal or agent, or both, which engages in, does or transacts any temporary or transient business in this State, either in 1 locality or in traveling from place to place in this State, offering for sale or selling goods, wares, merchandise, food or beverages, and including those who, for the purpose of carrying on such business, hire, lease, use or occupy any permanent or mobile building, structure, motor vehicle including trucks, or real estate for the exhibition by means of samples, catalogues, photographs and price lists or sale of such goods, wares or merchandise. 65 Del. Laws, c. 391, §  1 ; 66 Del. Laws, c. 237, §  1 ; § 4703 Exemptions. (a) This chapter shall not apply to: (1) Sales made to dealers by commercial travelers or selling agents in the usual course of business; (2) Bona fide sales of goods, wares or merchandise by sample, brochure or catalogue for future delivery; (3) Any annual fair; (4) Any special event, taking place upon real property which is designed for and in the business of conducting such events where the transient merchant’s goods, wares or merchandise are only displayed and sold on said property; (5) Any general sale, fair, auction or bazaar sponsored by an ecclesiastical society, religious corporation, public service or charitable organization; (6) Garage sales on premises devoted to residential use; (7) Sales of crafts or items made by hand when sold or offered for sale by the person making such crafts or handmade items; (8) Sales of local agricultural products; (9) Sales resulting from prior invitation to the vendor by the owner or occupant of the residence; or (10) Any special event, taking place within the confines of an enclosed retail shopping facility, having a total enclosed common area square footage, exclusive of the total square footage of all occupied retail space contained in said enclosed retail shopping facility, of not less than 20,000 square feet, where the transient merchant’s goods, wares or merchandise are only displayed and sold within the confines of such enclosed retail shopping facility; provided, however, that each such enclosed retail shopping facility shall compile and maintain for a period of 4 years a listing containing the name, address, telephone number and general description of the type of goods or merchandise sold of each transient merchant participating in each special event. (b) No transient retailer not otherwise exempted from this chapter by subsection (a) of this section shall be relieved or exempted from this chapter by reason of associating himself or herself temporarily with any local dealer, auctioneer, trader or merchant or by conducting such temporary or transient business in connection with or in the name of any local dealer, auctioneer, trader or merchant. 65 Del. Laws, c. 391, §  1 ; 66 Del. Laws, c. 237, §  2 ; 70 Del. Laws, c. 186, §  1 ; § 4704 License required. It shall be unlawful for any transient retailer to transact business in this State unless such transient retailer and the owners of any goods, wares or merchandise to be offered for sale or sold, if such are not owned by the vendor, shall have first secured a license as provided in § 2905 of Title 30 and shall have complied with the other requirements of this chapter. The fee for such license shall be identical to the annual license fee assessed against a retailer transacting business in this State on a year-round basis. 65 Del. Laws, c. 391, §  1 ; § 4705 Registration of transient retailers. In addition to obtaining the license referred to in § 4704 of this title, any transient retailer desiring to transact business in this State shall first register by filing an application with the Director of Revenue. The application shall state the following facts: (1) The name and permanent address of the transient retailer making the application, and if the applicant is a firm or corporation, the name and address of the members of the firm or the officers of the corporation, as the case may be. (2) If the applicant is a corporation, then there shall be stated on the application form the date of incorporation, the state of incorporation, and if the applicant is a corporation formed in a state other than the State of Delaware, the date on which such corporation qualified to transact business as a foreign corporation in the State of Delaware. (3) A statement showing the kind of business proposed to be conducted, the length of time for which the applicant desires to transact such business and the location of such proposed place of business. (4) A description of the types of goods, wares and merchandise to be offered for sale in this State. (5) The name and permanent address of the transient retailer’s registered agent and office. 65 Del. Laws, c. 391, §  1 ; § 4706 Registered agent. (a) Every transient retailer shall file with the application required by § 4705 of this title the name and permanent address of such retailer’s registered agent. (b) Such registered agent shall be a resident of Delaware and shall be an agent of such transient retailer upon whom any legal process permitted by law to be served upon the transient retailer may be served. (c) The registered agent shall agree in writing to act as such agent and a copy of the agreement shall be filed with the application. (d) The Director of Revenue shall maintain an alphabetical record of all transient retailers and the names and addresses of their registered agents. (e) Whenever a transient retailer doing business or having done business in this State shall fail to have or maintain a registered agent in the State, or whenever any such registered agent cannot with due diligence be found at the registered agent’s permanent address, the Director of Revenue shall be an agent of such transient retailer upon whom any such legal process may be served. Service on the Director of Revenue of such legal process with the fee of $4.00 shall be made in the same manner as is provided by law for service of writs of summons and when so made shall be as effectual to all intents and purposes as if made personally upon the defendant within this State; provided, that not later than 7 days following the filing of the return of service of process in the court in which the civil action is commenced or following the filing with the court of the proof of the nonreceipt of notice provided for in subsection (h) of this section, the plaintiff or a person acting in the plaintiff’s behalf shall send by registered mail to the transient retailer a notice consisting of a copy of the process and complaint served upon the Director of Revenue and the statement that service of the original of such process has been made upon the Director of Revenue of this State, and that under this section such service is as effectual to all intents and purposes as if it had been made upon such transient retailer personally within this State. (f) Proof of the mailing and receipt or refusal of the notice shall be made in such manner as the court, by rule or otherwise, shall direct. (g) The return receipt or other official proof of delivery shall constitute presumptive evidence that the notice mailed was received by the transient retailer or the retailer’s agent, and the notation of refusal shall constitute presumptive evidence that the refusal was by the transient retailer or the retailer’s agent. (h) The plaintiff or plaintiff’s counsel of record in the action may within 7 days following the return of any undelivered notice mailed in accordance with subsection (e) of this section other than a notice, delivery of which is shown by the notation of the postal authorities on the original envelope to have been refused by the transient retailer or the retailer’s agent, file with the court in which the civil action is commenced proof of the nonreceipt of the notice by the transient retailer or the retailer’s agent, which proof shall consist of the usual receipt given by the post office at the time of mailing to the person mailing the registered article containing the notice, the original envelope of the undelivered registered article and an affidavit made by or on behalf of plaintiff specifying: (1) The date upon which the envelope containing the notice was mailed by registered mail; (2) The date upon which the envelope containing the notice was returned to the sender; (3) That the notice provided for in subsection (e) of this section was contained in the envelope at the time it was mailed; and (4) That the receipt, obtained at the time of mailing by the person mailing the envelope containing the notice, is the receipt filed with the affidavit. (i) The time in which defendant shall serve an answer shall be computed from the date of the mailing of the registered letter which is the subject of the return receipt or other official proof of delivery or the notation of refusal of delivery; provided, however, that the court in which the action is pending may, at any time before or after the expiration of the prescribed time for answering, order such continuances as may be necessary to afford the defendant therein reasonable opportunity to defend the action. (j) Nothing herein contained limits or affects rights to serve process in any other manner now or hereafter provided by law. This section is an extension of and not a limitation upon the rights otherwise existing of service of legal process upon nonresidents. 65 Del. Laws, c. 391, §  1 ; 70 Del. Laws, c. 186, §  1 ; § 4707 Bond required. (a) At the time of filing the application for license as provided in § 4704 of this title and as a part thereof, the applicant shall file and deposit with the Department of Finance a surety bond issued by an authorized surety insurer, or a cash bond, in the amount of $1,000, or, in the discretion of the Director of Revenue, a lesser amount determined in accordance with § 375 of Title 30. The surety bond shall run in favor of the State and shall be for the use of assuring the payment by the applicant of all taxes that may be payable by or due from the applicant to the State or any department thereof or any subdivision of the State, municipal or otherwise, and the payment of any fines that may be assessed by any court against the applicant or its agents or employees for violation of this chapter. The Director of Revenue may waive the bond provided in this section upon a showing sufficient to satisfy the Director that: (1) If the transient retailer is organized as a corporation, the principal offices for purposes of conducting the administrative business of the corporation are located in a permanent and fixed location within Delaware; (2) If the transient retailer is organized other than as a corporation, at least 1 person legally liable for all the debts of the retailer maintains a permanent and fixed residence within this State. The Director may issue such forms or returns as may be necessary to carry out the Director’s duties under this chapter. (b) Such surety bond shall be maintained unimpaired as long as the transient retailer conducts business in this State. Whenever the transient retailer ceases to conduct temporary or transient business in this State and furnishes the Department proof satisfactory that it has satisfied all claims or causes of action against it, the Department shall release said bond to the applicant. 65 Del. Laws, c. 391, §  1 ; 66 Del. Laws, c. 237, §  3 ; 70 Del. Laws, c. 186, §  1 ; § 4708 Advertising. No transient retailer who seeks to transact business in this State may advertise in any presale advertising media without including in each such advertisement the transient retailer’s complete name in a form easily comprehensible to the reader, listener or viewer of such advertisement. 65 Del. Laws, c. 391, §  1 ; § 4709 Penalty for violation. (a) A transient retailer who transacts business without having first obtained a license and filing a registration application, or who knowingly makes a material misstatement in such registration application, or who knowingly advertises, offers for sale, or sells any goods, wares or merchandise contrary to this chapter is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than $200 or imprisoned for not more than 30 days, or both. (b) Justices of the peace shall have original and exclusive jurisdiction to hear and determine violations of this chapter. 65 Del. Laws, c. 391, §  1 ; § 4710 Deceptive trade practices. In addition to the criminal penalty provided in § 4709 of this title, any violation of this chapter shall constitute a deceptive trade practice under subchapter III of Chapter 25 of this title. 65 Del. Laws, c. 391, §  1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 4720 Definitions. As used in this subchapter: (1) “Baby food” or “infant formula” means any food manufactured, packaged and labeled specifically for sale for consumption by a child under the age of 2. (2) “Medical device” means any new or unused instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, tool or other similar or related article, including any component part or accessory, required by federal law to bear the label, “Caution: Federal law requires dispensing by or on the order of a physician” or which is defined by federal law as a medical device and which is intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment of prevention of disease in humans or other animals, or is intended to affect the structure or any function of the body of humans or other animals, which does not achieve any of its principal intended purposes through chemical action within or on the body of humans or other animals and which is not dependent upon being metabolized for achievement of any of its principal intended purposes. (3) “New and unused property” shall mean 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 which has never been used since its production or manufacturing or which is in its original and unopened package or container, if such personal property was so packaged when originally produced or manufactured. (4) “Nonprescription drug” means any nonnarcotic medicine or drug that may be sold without a prescription and is prepackaged for use by the consumer and prepared by the manufacturer or producer for use by the consumer. The term “nonprescription” shall include any drug commonly known as an “over the counter drug” which is required by state food and drug laws or the federal “Food, Drug and Cosmetic Act” [21 U.S.C. § 301 et seq.] to be properly labeled and unadulterated, but shall not include any herbal products, dietary supplements, botanical extracts or vitamins. (5) “Unused property market” means any event at which persons offer personal property for sale or exchange, and which involves a series of sales sufficient in number, scope and character to constitute a regular course of business; provided, however, that the event occurs at least 6 times in any 12-month period. Unused property markets include any “swap meet, indoor swap meet,” “flea market” or other similar event at which transient retailers transact temporary or transient business, however the event is described and whether or not a fee is charged for entrance thereto. (6) “Unused property merchant” means any 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 and shall include any transient retailer. 72 Del. Laws, c. 419, §  1 ; 70 Del. Laws, c. 186, §  1 ; § 4721 Prohibition on sale of certain goods. No unused property merchant shall offer at an unused property market for sale or knowingly permit the sale of baby food, infant formula, cosmetics or any nonprescription drug or medical device. This section shall 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 product, as long as the authorization is not false, fraudulent or fraudulently obtained. 72 Del. Laws, c. 419, §  1 ; § 4722 Receipts of purchase required for resale; maintenance and inspection of records; destruction or obliteration of receipts. (a) No unused property merchant shall offer any new and unused property for sale at an unused property market for which the merchant does not possess a receipt of sale or equivalent documentary evidence of true ownership. (b) Every unused property merchant shall maintain receipts for the purchase of, or other documentary evidence of true ownership of, new and unused property for a period of not less than 2 years from the date of acquisition by the unused property merchant. (c) Receipts for the purchase for new and unused property, and any other documentary evidence of true ownership, must contain at least: (1) The date of the transaction; (2) The name and address of the person, corporation or entity from whom the new and unused property was acquired; (3) An identification and description of the new and unused property acquired; (4) The price paid for such new and unused property; and (5) The signature of the seller and buyer of the new and unused property. (d) No unused property merchant shall: (1) Falsify, obliterate or destroy such receipts, or knowingly allow the same to occur; or (2) Refuse or fail, upon request, to make such receipts available for inspection within a period of time which is reasonable under the individual circumstances surrounding such request. (e) Nothing contained in this section shall be construed to require the unused property merchant to possess such receipt on or about his or her person without reasonable notice. 72 Del. Laws, c. 419, §  1 ; 70 Del. Laws, c. 186, §  1 ; § 4723 Unlawful trade in new and unused property; penalties. (a) Any person who violates the provisions of this subchapter shall, in addition to any other crimes or violations contained in this Code, be guilty of the unlawful trade in new and unused property and shall, in addition to any other penalty provided for in any other provision of this Code: (1) For the first offense, be guilty of a class B misdemeanor; (2) For a second offense, be guilty of a class A misdemeanor; and (3) For a third or subsequent offense, be guilty of a class G Felony. (b) The Superior Court shall have original jurisdiction over all violations of this subchapter. 72 Del. Laws, c. 419, §  1 ; § 4724 Unlawful trade in new and unused property; exceptions. The provisions of this subchapter shall not apply to: (1) Any event which is organized for the exclusive benefit of any community chest, fund, foundation, association or corporation organized and operated for religious, educational or charitable purposes, provided that no part of any 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 any private shareholder or person participating in the organization or conduct of the event; (2) Any 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; (3) The sale of a motor vehicle or trailer that is required to be registered or is subject to the certificate of title laws of this State; (4) The sale of wood for fuel, ice or livestock; (5) Business conducted in any industry or association trade show; (6) Property, although never used, whose style, packaging or material clearly indicates that such property was not produced or manufactured within recent times; (7) Anyone who sells by sample, catalog or brochure for future delivery; (8) The sale of arts or crafts by a person who produces such arts or crafts; (9) The sale of new and unused property claimed to be the personal possession of the unused property merchant which had been intended for the merchant’s personal use; provided, however, that this exception shall not apply to any item of personal property that is 1 of 4 or more identical items that the unused property merchant possesses or offers for sale; or (10) Persons who make sales presentations pursuant to a prior, individualized invitation issued to the consumer by the owner or legal occupant of the premises. 72 Del. Laws, c. 419, §  1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } }