Opinion No. 1992-002

John Pagan

Attorney General of Arkansas — Opinion
Opinion Delivered January 24, 1992

WINSTON BRYANT, Attorney General

The Honorable John Pagan State Senator 6907 Lucerne Drive Little Rock, Arkansas 72205

Dear Senator Pagan:

This is in response to your request for an opinion on the legality, under A.C.A. § 4-74-101—111, of an auction conducted by a company which is going out of business. You note that the auction will be held after expiration of the sixty day license and thirty day extension provided for in A.C.A. § 4-74-108. Specifically, you pose the following question:

Is an auction to the general public, at the same location as the `going out of business sale’ covered by the license, under the same business name, and involving the same stock of goods, a prohibited `similar business’ within the meaning of § 4-74-110? Would the answer be affected if the auction were held on more than one occasion or on a series of dates?

It is my opinion that the answer to your question is “yes,” and this answer is not affected by the number of auctions held.

Section 4-74-101—111 provides for the licensure of “going out of business sales,” by providing for the issuance of a sixty day license to conduct the sale, which may be extended by the county clerk for an additional thirty days. A.C.A. § 4-74-108. Section 4-74-111 provides that:

A person conducting a going out of business sale licensed under the provisions of this chapter shall not, upon conclusion of the sale, continue to conduct a similar business at the same location or address at which the going out of business sale was conducted.

The phrase “similar business” is not defined by the statutes, but in my opinion would include any business conducted at the same location where the same or similar goods are sold to the same category of purchasers. The word “similar” is defined in Black’sLaw Dictionary (5th ed. 1979) as meaning:

Nearly corresponding; resembling in many respects; somewhat like; having a general likeness, although allowing for some degree of difference. [Citation omitted.] Word `similar’ is generally interpreted to mean that one thing has a resemblance in many respects, nearly corresponds, is somewhat like, or has a general likeness to some other thing but is not identical in form and substance, although in some cases `similar’ may mean identical or exactly alike. It is a word with different meanings depending on context in which it is used.

Black’s, supra, at 1240.

It is my opinion that an “auction” of the same or similar goods to the general public, held at the same location by a business with an expired “going out of business” license would be prohibited by the statutes as a continuation of a “similar business.” A.C.A. § 4-74-111.

The fact that the sale will be through an “auction” of goods rather than through ordinary retail sales, in my opinion makes it in this one respect different from the formerly conducted business, but not so much as to preclude a finding of a “similar” business as that term is defined above.

It is my opinion, additionally, that the number of “auctions” held at the same location has no bearing on this answer.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.


WINSTON BRYANT Attorney General