CHAPTER 118
Pawnbrokers
Section
118.03 License and permit required
118.05 Suspension or revocation of permit; hearing
118.06 Reports, records and delivery
118.07 Default; disposition of pledged goods
118.01 TITLE.
This chapter may be cited as the “Pawnbroker Chapter.”
(‘87 Code, § 14-9-1) (Ord. 88-027; Am. Ord. 94-049)
118.02 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
PAWN SERVICE CHARGE. The sum of all charges, payable directly or indirectly by the pledger and imposed directly or indirectly by the pawnbroker as an incident to the pawn transactions.
PAWN TRANSACTION. Either the act between a pawnbroker and a person pledging a good of lending money or extending credit on the security of pledged goods or of purchasing tangible personal property with an express or implied agreement or understanding that it may be redeemed or repurchased by the seller at a stipulated price.
PAWNBROKER. A person engaged in the business of making pawn transactions.
PAWNSHOP. The location or premises at which a pawnbroker regularly conducts his business.
PERSON. An individual, partnership, corporation, joint venture, trust, association or any other legal entity however organized.
PLEDGED GOODS. Tangible personal property other than chose in action, securities or printed evidences of indebtedness, which property is deposited with or otherwise actually delivered into the possession of a pawnbroker in the course of his business in connection with the pawn transaction.
(‘87 Code, § 14-9-2) (Ord. 88-027; Am. Ord. 94-049)
118.03 LICENSE AND PERMIT REQUIRED.
(A) Before conducting, operating or engaging in business, and upon obtaining a permit as provided in division (B) below, every pawnbroker shall register as a business under the provisions of §§ 110.01 et seq. (‘87 Code, § 14-9-3)
(B) (1) Every pawnbroker shall obtain a pawnbroker permit from the City Clerk, which permit shall be conspicuously displayed in the pawnbroker’s place of business. Pawnbroker permits will expire on July 1 of each year and must be renewed annually.
(2) Upon obtaining the permit, every pawnbroker shall register with the Department of Public Safety.
(3) Doing business as a pawnbroker without a permit constitutes a violation of this chapter and is subject to the penalties set forth in § 118.99.
(4) No person who has been convicted of a felony shall be eligible for a permit.
(‘87 Code, § 14-9-4)
(C) (1) Each application for an original or a renewal permit shall be submitted on a form provided by the City Clerk. Each application shall contain the name, address, social security number and place and date of birth of every natural principal, agent, servant and employee of the applicant engaged in the business of pawn transactions and other information as required on the application.
(2) Changes in the list must be indicated on each renewal application.
(3) Every pawnbroker shall furnish with each application for an original or renewal permit proof of execution and delivery of the bond as stipulated in § 118.04.
(‘87 Code, § 14-9-5)
(Ord. 88-027; Am. Ord. 94-049) Penalty, see § 118.99
118.04 BOND REQUIRED.
(A) No person shall engage in business as a pawnbroker without having executed and delivered a bond to the City Clerk in the sum of $5,000. The bond shall be in a form provided by the City Clerk and shall be conditioned upon the conduct of the pawnbroker’s business according to the provisions of this chapter and the New Mexico Pawnbrokers Act, NMSA §§ 56-12-1 to 56-12-16.
(B) The bond shall be for the benefit of each and every person damaged by a breach of any condition set forth in the bond. Every pawnbroker shall provide written notice to the City Clerk within 30 days of the cancellation of the bond.
(‘87 Code, § 14-9-6) (Ord. 88-027; Am. Ord. 94-049)
118.05 SUSPENSION OR REVOCATION OF PERMIT; HEARING.
(A) The governing body or its appointed hearing officer shall conduct a hearing for the suspension or revocation of any permit issued upon the filing of a written complaint by the Department of Public Safety or the Attorney General charging the permit holder, principal, agent, servant or an employee thereof of having violated any provision of this chapter.
(B) The City Clerk shall serve written notice upon the permit holder of the alleged violation.
(1) The notice shall set forth with reasonable specificity the factual basis of the alleged violation, stating the date, time, place and persons involved. It shall also specify the date, place and time of hearing, not more than ten days, nor less than five days after the date of notice.
(2) The notice shall state that the hearing will be held in accordance with the Open Meetings Act.
(3) The City Clerk shall send the notice by certified mail, return receipt requested, to the mailing address stated in the most recent permit application. In the alternative, notice may also be served by personal delivery upon the permit holder or any person in charge of the permit holder’s premises or by posting the notice in a conspicuous place on or about the permit holder’s place of business in the city.
(C) The permit holder and any other interested persons shall have the right to appear at the scheduled hearing, to produce testimony and evidence and to cross-examine witnesses. The rules of evidence shall not apply.
(D) If the hearing is conducted by a hearing officer, that officer shall prepare a report setting forth his findings of facts and conclusions of law. He shall forward his report to the governing body within ten days of the conclusion of the hearing. The governing body shall then consider the report without additional fact-finding and shall adopt, modify or reject the report or remand the report to the hearing officer for additional findings of fact.
(E) If, after holding the hearing or acting upon the hearing officer’s report, the governing body determines that the permit holder is in violation of the provisions of this chapter as charged in the notice, the governing body shall issue a written order. The order may suspend the permit for a stated period of time or permanently revoke the permit. The governing body shall cause the order to be served upon the permit holder and filed in the office of the City Clerk for public inspection within five business days after the hearing or consideration of the report. Service of the order on the permit holder shall be as specified in division (B)(3) above and the official serving the order shall have the authority to remove the permit from the premises and deliver that permit to the City Clerk. This hearing or consideration of the report shall be the final administrative remedy.
(NMSA § 56-12-8) (‘87 Code, § 14-9-7) (Ord. 88-027; Am. Ord. 94-049)
118.06 REPORTS, RECORDS AND DELIVERY.
(A) (1) Every pawnbroker shall each day accurately complete a report of all used property of every kind received or purchased in a pawn transaction during the preceding business day on a form approved by the Department of Public Safety. Either a driver’s license or other photo identification shall be required of each person entering into a pawn transaction with a pawnbroker. Each item received shall be listed on a separate report form. The report shall include the following:
(a) Name of item;
(b) Description of the item including make and model number, if any;
(c) Serial number and other identifying marks, if any;
(d) Date, time and type of pawn transaction;
(e) Name and address of person offering the item;
(f) Description of the person offering the item including sex, complexion, hair color, approximate height and weight and date of birth;
(g) Type of identification used by person offering item and identifying number of the identification; and (If the person presents a driver’s license, the report shall also indicate the state of issuance.)
(h) Name of the employee accepting the pawn item.
(2) All reports required by this section shall be completed accurately and be made available by 12:00 noon of the day following the day of the pawn transaction and shall be delivered or mailed to the Department of Public Safety within three days of the pawn transaction.
(3) Property purchased directly from another permit holder regulated by this chapter who has already reported the item pursuant to this section is exempt from the requirements of this section.
(4) Conduct demonstrating persistent or frequent erroneous or incomplete entries in the permit holder’s reports or delays in the submitting of the above required reports constitutes a violation of this section and renders the permit holder or its principal, agent, servant or employee subject to the general penalty provisions of this chapter.
(5) The reports and records of the permit holder required pursuant to this section, as well as every item received in pawn, shall be available for inspection by the Department of Public Safety at all reasonable times.
(6) In the event that the Department of Public Safety should seize any pledged goods under a warrant or otherwise in conjunction with a criminal investigation, the Department of Public Safety shall at the conclusion of the criminal matter return the property to the original owner, the pledger or to the pawnbroker after conferring with all claimants to determine whether any will relinquish claim to the property. If there are conflicting claims, the Department of Public Safety shall interplead the property into the District Court of the Thirteenth District and provide notice to all claimants in accordance with the Rules of Civil Procedure for the District Courts, SCRA 1986.
(7) Each item pledged to or purchased by the permit holder for which a report is required shall have attached to it a tag with an alphabetic or numerical identification system matching that item with its corresponding report and record.
(NMSA § 56-12-9) (‘87 Code, § 14-9-8)
(B) (1) Every pawnbroker shall at the time of each pawn transaction deliver to the person pawning any item of personal property a ticket, signed by the pawnbroker, containing the substance of the entry required to be made in his report pursuant to division (A) above.
(2) The holder of the ticket shall be presumed to be the person entitled to redeem the pledge and the pawnbroker shall deliver the article to the person so presenting the ticket on payment of principal and all lawful charges.
(3) The pawn ticket required by this section shall further contain all disclosures of credit terms required to be disclosed to the pledger by the federal Truth in Lending Act.
(NMSA § 56-12-10) (‘87 Code, § 14-9-9)
(Ord. 88-027; Am. Ord. 94-049)
118.07 DEFAULT; DISPOSITION OF PLEDGED GOODS.
(A) (1) Except as otherwise specified in this section, upon default by the pledger, the pawnbroker shall comply with the requirements of NMSA §§ 55-9-501 through 55-9-507, in the disposition of pledged goods.
(2) Notwithstanding division (A)(1) above, if the pawnbroker disposes of the pledged goods by sale in the regular course of his business, the sale shall conform to the requirements of NMSA § 55-9-504, and, if a surplus remains after sale of the pledged goods, the pawnbroker must make a record of the sale and the amount of the surplus and must notify the pledger by first class mail sent to the pledger’s last known address of the amount of the surplus and the pledger’s right to claim it at a specified location within 90 days of the date of mailing of the notice if the surplus is $100 or less or within 12 months of the date of the mailing of the notice if the surplus is greater than $100. In the event that the first class mail addressed to any pledger is returned unclaimed to the pawnbroker, then the pawnbroker must post and maintain on a conspicuous public part of his premises an appropriately entitled list name each person. Ninety days or 12 months, as applicable, after the date of the mailing or posting whichever is later, the pawnbroker may retain any surplus remaining unclaimed by the pledger as his own property.
(NMSA § 56-12-11) (‘87 Code, § 14-9-10)
(B) Every pawnbroker shall keep a permanent record, fully itemized, of all pledged goods disposed of following default by the pledger. The record shall include the following:
(1) The number of pawn transaction;
(2) The name and address of the pledger;
(3) The date of the pawn transaction and the date of the last payment received as service charge or on principal;
(4) The date of disposition of the pledged goods pursuant to division (A) above;
(5) The method of disposition of the pledged goods; and
(6) The amount and disposition of any surplus following disposition of the pledged goods.
(NMSA § 56-12-12) (‘87 Code, § 14-9-11)
(Ord. 88-027; Am. Ord. 94-049)
118.08 PAWN SERVICE CHARGE.
(A) (1) For the first 30-day period of the pawn transaction, a pawnbroker may charge $7.50 or 10% of the amount loaned, whichever is greater, provided that the charge shall not be made on the refinancing of an existing loan or credit transaction.
(2) A loan or extension of credit shall be considered to be refinancing of an existing loan if any part of the proceeds of the subsequent loan is applied toward the payment of a prior loan with the same pawnbroker.
(B) For the remaining period of the pawn transaction, including any refinancing, no pawnbroker shall charge directly, indirectly or by any means whatsoever a pawn service charge in connection with any pawn transaction at a rate in excess of 4% per month on the unpaid principal balance of the loan or extension of credit.
(C) The foregoing pawn service charges are limiting maximums and nothing herein shall be construed to prohibit a pawnbroker from contracting for or receiving a lesser rate than here established.
(NMSA § 56-12-13) (‘87 Code, § 14-9-12) (Ord. 88-027; Am. Ord. 94-049)
118.09 UNLAWFUL ACTS.
A pawnbroker shall not:
(A) Knowingly enter into a pawn transaction with a person under the age of 18 years or under the influence of alcohol, any narcotic, drug, stimulant or depressant;
(B) Make any agreement requiring the personal liability of a pledger in connection with the pawn transaction;
(C) Accept any waiver, in writing or otherwise, of any right or protection accorded a pledger under this chapter;
(D) Fail to exercise reasonable care to protect pledged goods from loss or damage;
(E) Fail to return pledged goods to a pledger upon payment of the full amount due to the pawnbroker on the pawn transaction; (In the event a pledged goods is lost or damaged while in the possession of the pawnbroker, the pawnbroker shall compensate the pledger for the reasonable value of the lost or damaged item of property.)
(F) Make any charge for insurance in connection with a pawn transaction;
(G) Purchase or otherwise receive any item of property from which the manufacturer’s name plate, serial number or identification make has been obviously defaced, altered, covered or destroyed;
(H) Purchase or otherwise receive any item of property which the permit holder knows is not lawfully owned by the person offering the same;
(I) Enter into a pawn transaction in which the unpaid principal balance exceeds $2,000; or
(J) Require that any of the proceeds of any cash loan be spent at the pawnbroker’s place of business or any other manner directed by the pawnbroker.
(NMSA § 56-12-14) (‘87 Code, § 14-9-13) (Ord. 88-027; Am. Ord. 94-049)
118.10 VIOLATION; FORFEITURE.
The violation of any provision of this chapter in any covered transaction shall be deemed a forfeiture of the entire amount of the pawn service charge contracted for or allowable under the transaction. In the event a pawn service charge in excess of the amounts allowable under the Pawnbrokers Act has been paid in any covered transaction, the person by whom it has been paid, or his legal representative, may recover in a civil action triple the amount of service charge paid as well as costs of court and reasonable attorneys fees. Any civil action under this section shall be commenced within two years from the date the usurious transaction was consummated.
(NMSA § 56-12-16) (‘87 Code, § 14-9-15) (Ord. 88-027; Am. Ord. 94-049)
118.99 PENALTY.
Any permit holder who is found guilty of a violation of any provision of this chapter shall be guilty of a petty misdemeanor. Any permit holder who violates any provision of the Pawnbrokers Act shall be subject to having his permit administratively revoked or suspended by the governing body pursuant to the provisions of this chapter. Revocation or suspension of the permit will not bar prosecution of the permit holder under the penal provisions of this chapter. Criminal prosecution will not bar administrative proceedings to revoke or suspend the holder’s permit.
(NMSA § 56-12-15) (‘87 Code, § 14-9-14) (Ord. 88-027; Am. Ord. 94-049)