An Analysis of Yard Sale Permit Ordinances in Illinois – Case in point, Collinsville, Illinois

By Mark McCoy

Article Online Here - http://wp.me/p1uj3C-lO

This article contains some legal interpretation and analysis. For those who wish to gain a deeper understanding of the issue you are welcome to read the entire article. For the sake of brevity and conciseness I will answer the question of whether or not a permit is required to conduct a yard sale in Collinsville, Illinois. If you are a private individual selling your personal property or items that were not purchased for the purpose of retail sale then you do not need a yard sale permit. You must be involved in a "business" activity of selling "merchandise" advertised as a "yard sale", "garage sale", "tag sale", "basement sale", or "moving sale". People selling their property from their yards, garages, basements, or otherwise need not apply for, nor display, the permit.

Even though this article deals with the City of Collinsville’s ordinance I would posit that it applies equally to all municipalities in Illinois since the authority for cities to license is found in Illinois Statutes. In order for a municipality to license this type of activity the statute would have to identify that authority. I would guess that all municipalities who do license yard sales implement language similar to Collinsville.

I received an email from someone who recently moved to Collinsville and was investigating what he was told about needing to procure a yard sale permit. He wished to remain anonymous. He had inquired with the City, using an online form for asking questions. The email forwarded to me read like this:

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Mr. McCoy,

I came upon your website while researching ordinances for Collinsville, Il. You appear to have a bit of history regarding the application of ordinances. I read your piece on the Collinsville Business License Ordinance and thought this may be of some interest to you. I made an inquiry through the City's FAQ page regarding a yard sale permit. I received the response below. I was curious whether you have studied the yard sale permit provision and the relevance or applicability it has with the Business License Ordinance in general. Thank you for your time. Your website is very informative. While I do not agree with 100% of your conclusions on some things, your analysis and foundation appear to be very well thought out. Thank you for your time.

Your Question:I was told I needed a permit for a yard sale but the yard sale ordinance comes under the

business license ordinance. I am not acting as a business when I sell my personal property. Does the ordinance apply to private men or women who sell their personal property?

Our Solution: (This is the email response from the City)Thank you for using our system.The yard sale ordinance has nothing to do with the business license ordinance.  You can obtain a yard sale permit for $2 at the front counter of City Hall (where you pay your water bill).  It can be obtained any time between 8:30 am and 5 pm and it only takes a minute to issue.  You can get it up to the day before your sale starts.  They will give you a copy of the restrictions when you obtain your permit--where you can put your signs, how many sales you are allowed in a year, etc.

Sincerely,

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I want to thank the gentleman for his email as this is something I have studied in the past, but which many people have no interest in learning the truth. For the $2 fee, most would rather trod down to City Hall and get the permit rather than deal with the applicability of the code to their situation. I'm glad this gentleman asked.

To be clear, The Yard Sale Permit has nothing to do with the "Business License Ordinance" as the gentleman stated in his inquiry to the City, and the City was correct in their response to the same question. The yard sale ordinance actually comes under Business License and Regulation. What is commonly referred to as the Business License Ordinance is the Business Registration Ordinance. The Business License Ordinance is what I refused to submit to as working out of my home. That story is here.

So, let's take a look at the Collinsville Yard Sale Permit Ordinance.

Looking at the City Codes online I see the yard sale ordinance is under Title 5,  which is Business License and Regulations.

It would seem that ordinances under that Title would relate to the Title. "Yard Sales" is under chapter 5.20 under Title 5, which is " Business Licenses and Regulations".

Let's take a look at the first part of Title 5, which applies to all the subtitles as well:

Chapter 5.04BUSINESS LICENSES GENERALLY*__________*State law references:   General authority of city to license, 65 ILCS 5/11-42-1 et seq.__________

Sec. 5.04.010.  Public policy.It is the public policy of the City that the public health, safety, morals, interest, convenience, and necessity of the City and the residents thereof require the regulation of businesses and the fixing of a reasonable license fee related thereto.(Ord. No. 3399, 8-11-2003)

Sec. 5.04.020.  Purpose and jurisdiction.As each business located in the City is a basic part of and effects the physical and economic well-being of the City, necessitating special services from the City in the form of health inspections and other services, such businesses shall in all respects be in full compliance with the provisions hereinafter contained in this chapter. This chapter is designed to provide for the means whereby the City may render the necessary inspections and services to businesses in order to promote, protect, and safeguard the public safety, health, and welfare of the citizens of the City and to enable the maintenance of an accurate record of businesses located and carrying on commercial activities or commerce within the City. - My question is, what health inspections or other services to yard sales require? Also, looking at the last part of the ordinance you will see "businesses located and carrying on commercial activities or commerce..."  Does that sound like mom, pop, or joe selling their "stuff"?(Ord. No. 3399, 8-11-2003)

Sec. 5.04.030.  Definitions.The following words and phrases as used in this chapter shall have the following meaning, unless a different meaning is required by the context:Business means any vocation, occupation, profession, enterprise, establishment, concern, or any other type of activity, with the exception of those exemptions as otherwise provided for in this chapter.Person means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.(Ord. No. 3399, 8-11-2003)

Title 5, where the Yard Sale Ordinance is located, states at 5.04, Business Licenses Generally, "*State law references: "General authority of city to license, 65 ILCS 5/11-42-1 et seq."

If you go to the Illinois Compiled Statutes under that section, you will see, "(65 ILCS 5/11-42-5) (from Ch. 24, par. 11-42-5) Sec. 11-42-5. The corporate authorities of each municipality may license, tax, regulate, or prohibit hawkers, peddlers, pawnbrokers, itinerant merchants, transient vendors of merchandise,.... (Source: P.A. 96-1516, eff. 2-4-11.)

Remember that word,  "Merchandise" .  The statute which the City references as its general authority to license does not list private individuals selling their property. The Yard Sale Ordinance embraces "vendors of merchandise.

Likewise, under the Public Policy Statement for Title 5 it states:

"Sec. 5.04.010.  Public policy. It is the public policy of the City that the public health, safety, morals, interest, convenience, and necessity of the City and the residents thereof require the regulation of businesses and the fixing of a reasonable license fee related thereto.(Ord. No. 3399, 8-11-2003)"

Again, the word "business" is used to define the purpose of the Title. So, when viewing the Yard Sale Ordinance, it states:

"Sec. 5.20.010.  Definition. Yard sale  means any display of merchandise for the purpose of exchanging it for legal tender or barter at a location not otherwise regularly used or specifically designated for the sale or exchange of merchandise. Events commonly known as "garage sales," "tag sales," "moving sales," or "basement sales" shall be included in the definition of a yard sale. (Ord. No. 3909, 6-11-2007)"

Well, it sounds like if you have a "yard sale" you are exchanging merchandise for legal tender, right? Or are you? I would suggest that if a business uses the terms, "yard sale", or any of the other terms defined in Sec. 5.20.010 then the permit applies to you. Look at it like this; what the ordinance does is prohibit businesses from selling merchandise under the pretense of a "yard sale".

Nowhere in Title 5 is the word "merchandise" defined. The Title brings Yard Sales under the regulation of "Businesses" with a distinction of selling "merchandise". So, the Yard Sale Ordinance involves businesses selling merchandise.

So, what is the definition of "merchandise"? The dictionary says, "–noun1.the manufactured goods bought and sold in any business.2.the stock of goods in a store.3.goods, especially manufactured goods; commodities.Legal dictionaries often use the following definition “MERCHANDISE”. By this term is understood all those things which merchants sell either wholesale or retail, as dry goods, hardware, groceries, drugs, &c. It is usually applied to personal chattels only, and to those which are not required for food or immediate support, but such as remain after having been used or which are used only by a slow consumption. Vide Pardess. n. 8; Dig. 13, 3, 1; Id. 19, 4, 1; Id. 50, 16, 66. 8 Pet. 277; 2 Story, R. 16, 53, 54; 6 Wend. 335.

My contention is that my personal property is NOT merchandise. It is personal property. I am not selling it as a business. Merchandise is a commercial term, as is business. When I engage another individual with the intent of exchanging my property for valuable consideration it is nobody's business, no pun intended. The City has no authority to control such activity. Looking at the language of the ordinance and how it is organized speaks clearly to that fact, if you don't belabor it with preconceptions and misinformation.

I wanted to address one more thing, under definitions there is the word "person". Some people capitulate because of that one word. They believe, "If it says person, then that's me,

and I have to get the permit." Look at it this way, what if you are not a "person"? Sure, you may think you are, but are you the 'person" defined in Title 5? What does Title 5 say a "person" is?

Let's look at how the term "person" is used throughout Title 5.Sec. 5.04.030.   Definitions.  Person means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.(Ord. No. 3399, 8-11-2003)

Sec. 5.06.020.   Definitions.  Person means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, including not-for-profit organizations, but excluding governmental bodies properly organized under the law of the State or of the United States of America.

(Ord. No. 3400, 8-11-2003)

Sec. 5.16.010.   Definitions.  Person, firm, corporation or association  includes the following: Any person, firm, corporation or association which owns any cigarette vending machines; the person, firm, corporation or association in whose place of business any such machines are placed for use by the public; and the person, firm, corporation or association having control over such machine; provided, however, that the payment of such fee by any person, firm, corporation or association enumerated in this section shall be deemed a compliance with this section.

(Code 1996, § 5.16.010)Sec. 5.64.020.   Definitions.  Person  means any natural person; firm; joint venture, including all participants; partnership, including all partners; association, social club, or fraternal organization, including all officers and directors; corporation, including all officers, directors, and significant stockholders; estate; trust; business trust; receiver; or any other group or combination acting as a unit.

Sec. 5.70.020.   Definitions.  Person  means any individual, partnership, firm, association, joint stock company, corporation, venture, sole proprietorship, or combination thereof made up of whatever formal or legal character.Now, there are some subtitles that do not have definitions for the term "person". In that case the subtitle must use the definition under the main heading at Sec. 5.04.030.   Definitions. However, the Yard Sale Permit Ordinance does not define "person", thereby forcing us to consult the main heading definition at Sec. 5.04.030.   Definitions.  Person is not used as a word, but rather a legal "term". Once a word has been defined in a piece of legislation it loses its common usage meaning and adopts the definition specified in the legislation.

Let's look at this definition. It states, "Person  means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America." If you notice, there things other than people defined as persons. The definition begins with the word "individual", but you can't rely upon that as applying to you.

There is a rule of statutory construction called Ejusdem Generis - (eh-youse-dem generous) v adj. Latin for "of the same kind," used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.

This means the classes of things listed must be of the same kind as the others in the definition. So, breaking it apart we see this:

Person  means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.

Let 's see what classified the things in this definition.Individual - Presumed to be a flesh and blood being, but it must conform to Ejusdem Generis.Partnership - This is a legal entity.Firm - This is a legal entity.Association - This is a legal entity.Joint Stock Company - This is a legal entity.Corporation - This is a legal entity.Trust - This is a legal entity.Or any other legal entity - This is the giveaway.

The line, "or any other legal entity" means that everything preceding is a legal entity, and not a natural entity. A legal entity exists through an act of law, like other things on the list. To be any of them you must make application to the State. They are all defined, and controlled, by the legislature. The legislature never acquired the power to define private people or their dealings. "Or any other legal entity" thereby shows everything in the definition conforming to Ejusdem Generis since the classification is for "legal entities". If you believe yourself to be a legal entity and engaged in the business of selling merchandise under the label of a yard sale then you need a yard sale permit. If you are a private individual selling your personal property you need no such permission from anyone.I hope this clears things up a bit. If you have any questions feel free to use my contact form to reach me.