As used in KRS365.655 to 365.695 unless the context requires otherwise:
"Transient merchant" means any person, firm, corporation, partnership or other entity which engages in, does or transacts any temporary or transient business in the state, either in one (1) locality or in traveling from place to place in the state, offering for sale or selling goods, wares, merchandise or commodities of any kind, and includes those merchants who, for the purpose of carrying on such business, hire, lease, use or occupy any building, structure, motor vehicle or real estate, and
"Temporary or transient business" means any business conducted for the sale or offer for sale of goods, wares or merchandise which is carried on in any building, structure, motor vehicle or real estate in one (1) locality for a period of less than six (6) months in a year.
The provision of KRS365.650 to 365.695 shall not apply to:
- Sales at wholesale to retail merchants by commercial selling agents in the usual course of business;
- Wholesale trade shows or conventions;
- Sale of goods, wares or merchandise by sample catalogue or brochure for future delivery;
- Participants in fairs, and convention center activities when the participants' businesses are conducted primarily for amusement or entertainment;
- Any general sale, fair, auction or bazaar sponsored by any religious, educational, public service or charitable organization;
- Garage sales held on premises devoted to residential use;
- Sales of crafts or items made by hand and sold or offered for sale by the person making such crafts or homemade items;
- Sales of locally grown agricultural products;
Sales made by a seller at residential premises pursuant to an invitation issued by the owner or legal occupant of such premises;
- Sheriffs, constables, or other public or court officers, or any other person or persons acting under the direction or authority of any court, state or federal, selling goods, wares or merchandise in the course of official duties;
- Flea market vendors who can demonstrate compliance with KRS139.550;
- Professions and occupations, licensed and regulated by the state, when the activities are performed within the scope of their respective statutory and regulatory authority; and
- Temporary sales at another location by businesses with a permanent business location within the state of Kentucky
It is unlawful for any transient merchant to transact business in any county of this state unless such merchant & the owners of any goods, wares or merchandise to be offered for sale or sold, if such are not owned by the merchant, shall first secured a permit and shall have
otherwise complied with the requirements of KRS365.650 to 365.695.
Application for Permit
Any transient merchant desiring to transact business in any county in this state shall make application for and obtain permit in each county in which the merchant desires to transact business at least ten (10) days prior to transacting business in the county. The application for permit shall be designed and distributed by the Revenue Cabinet, shall be filed by the transient merchant with the county clerk, or the officer of an urban-county government having the responsibility for the issuance of business permits and licenses generally and shall include but not limited to the following information:
- The name and permanent address of the transient merchant 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;
- If the applicant is a corporation, 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 Kentucky, the date on which such corporation qualified to transact business as a foreign corporation in this state;
- 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 location of the proposed place of business;
- An estimate of the aggregate market value of any goods, wares or merchandise to be offered for sale during the permit period;
- A statement that the applicant has acquired all other required city, county & state permits and licenses;
- The applicant's sales and use tax permit number or temporary vendor's registration number, and the Social Security numbers, of all salesman employed by the applicant, or representing the applicant, in the transaction of business in the Commonwealth of Kentucky;
- The name and permanent address of the transient merchant's registered agent or office; and
- Evidence of security as outlined in KRS365.680: The absence of any of the above information shall result in the denial of the permit by the county clerk.
Duty of County Clerk
The county clerk shall forward a copy of each approved application to the Revenue Cabinet and to the office of the Attorney General within ten (10) days of approval.
Each registered agent designated by a transient merchant in the application for a permit shall be a resident of the state and shall be agent of the transient merchant upon whom any processes, notice or demand required or permitted by the law to be served upon the transient merchant may be served. The registered agent shall agree in writing to act as such agent and a copy of the file agreement to so act shall be filed with the application for a permit.
If any transient merchant doing business or having doing business in any county within the state shall fail to have or maintain a registered agent in the state or if such registered agent cannot be found at his permanent address, the Secretary of State shall be agent of such transient merchant for service of all process, notices or demands.
Each application for a transient merchant permit shall be accompanied by a permit fee of twenty-five dollars ($25.00) to be retained by the office of the county clerk or the officer of an urban-county government having the responsibility for the issuance of business permits & licenses generally. In addition, any applicant who will be selling goods, wares or merchandise during that period which have an aggregate market value of one thousand five hundred dollars ($1,500.00) or more, shall secure and submit evidence of security, a cash bond or a surety bond in the amount of one thousand dollars ($1,000.00) or five percent (5%) of the retail value of any goods, wares or merchandise to be offered for sale, whichever sum is greater. Such evidence shall be held by the Attorney General and he shall issue a certificate of security to be used by the applicant as evidence of security.
The surety bond required by this section shall be in favor of the Commonwealth of Kentucky and shall assure the payment by the applicant of all taxes that may be due from the applicant to the state or any political subdivision of the state, the payment of any fines that may be assessed against the applicant or its agents or employees for violation of the provisions of KRS365.650 to 365.695, and for the satisfaction of all judgments that may be rendered against the transient merchant or its agents or employees in any cause of action commenced by any purchaser of goods, wares or merchandise within one (1) year from the date of the sale by such transient merchant.
The bond shall be maintained so long as the transient merchant conducts business in the Commonwealth of Kentucky and for a period of one (1) year after the termination of such business and shall be released only when the transient merchant furnishes satisfactory proof to the Attorney General that it has satisfied all claims of purchasers of goods, wares or merchandise for such merchant, and that all state and local sales taxes and other taxes have been paid.
Use of Permit--Limits--Display
A transient business permit shall be used hereunder only when all requirements of KRS365.650 to 365.695 have been met. Such permit shall not be transferable, shall be valid only within the territorial limits of the issuing county, and shall be valid only for a period of ninety (90) days. A permit so issued shall be valid for only one (1) person, unless such person shall be a member of a partnership or employee of a firm or corporation obtaining such permit. The permit shall at all times be conspicuously displayed at any place that the transient merchant is transacting business. If the county clerk refuses to issue the permit, the applicant may apply to the District Court for a hearing. The clerk shall notify the county attorney who shall appear in opposition to the issuance of the permit.
Buyer's Right of Cancellation
Any buyer who purchases from a transient merchant goods with a value in excess of fifty dollars ($50.00), shall acquire the right of cancellation and any other rights granted to a buyer by KRS367.420 to 367.60
Enforcement by Attorney General or County Attorney
The Attorney General or county attorney may enforce the provisions of KRS365.650 to 365.695 by civil action for injunctive relief in the Circuit Court of his county. In the action to obtain the injunction, it shall be sufficient to allege and prove that a violation of KRS365.650 to 365.695 has occurred or is about to occur, and shall not be necessary to allege or prove that any person has been damaged or sustained any loss as a result of any violation of KRS365.650 to 365.695
When the provisions of KRS365.650 to 365.695 are enforced through civil action, the Attorney General or county attorney may ask for and the court may assess a civil penalty for the benefit of the Commonwealth, not to exceed the sum of two thousand dollars ($2000.00). The penalty shall be in lieu of all penalties set forth in KRS365.990(9).
Nothing in KRS365.650 to 365.695 shall be construed to limit or restrict the exercise of powers or the performance of duties the Attorney General is authorized to exercise or perform under any provision of law.