H. B. 2045
(By Delegates Stemple, Beach, Swartzmiller and Anderson)
[Introduced February 9, 2005; referred to the
Committee on Agriculture and Natural Resources the Government
Organization.]
A BILL to amend and reenact §19-2C-1, §19-2C-2, §19-2C-3, §19-2C-4,
§19-2C-5, §19-2C-5a, §19-2C-6, §19-2C-6b, §19-2C-6c, §19-2C-7,
§19-2C-8, §19-2C-8a and §19-2C-9 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto
three new sections, designated §19-2C-5b, §19-2C-6d and
§19-2C-9a, all relating to auctioneers; adding and amending
definitions; clarifying application and renewal procedures;
establishing and modifying fees; bonding requirements for
apprentice license; licensing requirements; requiring photo
identification for examination; requiring notice of change of
address; limiting number of apprentices auctioneer may
sponsor; clarifying licensing by reciprocity; requiring
continuing education; modifying criminal and civil penalties;
requiring escrow account; establishing settlement procedures;
and making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §19-2C-1, §19-2C-2, §19-2C-3, §19-2C-4, §19-2C-5,
§19-2C-5a, §19-2C-6, §19-2C-6b, §19-2C-6c, §19-2C-7, §19-2C-8,
§19-2C-8a and §19-2C-9 of the code of West Virginia, 1931, as
amended, be amended and reenacted; and that said Code be amended by
adding thereto three new sections, designated §19-2C-5b, §19-2C-6d
and §19-2C-9a, all to read as follows:
ARTICLE 2C. AUCTIONEERS.
§19-2C-1. Definitions.
For
the purposes of this article:
(a) The term "auctioneer" means, and includes, a person who
sells goods or real estate at public auction for another on
commission or for other compensation. The term "auctioneer" does
not include: (1) Persons conducting sales at auctions conducted by
or under the direction of any public authority or pursuant to any
judicial order or direction or to any sale required by law to be at
auction; (2) the owner of any real or personal property when
personally sold at auction by such owner and such owner has not
personally conducted an auction within the previous twelve-month
period; (3) persons conducting sales pursuant to a deed of trust or
other security agreement; (4) fiduciaries of estates when selling
real or personal property of such estate; (5) persons conducting
sales on behalf of charitable, religious, fraternal or other
nonprofit organizations; and (6) persons properly licensed pursuant to the provisions of article
twelve forty, chapter
forty-seven
thirty of this code when conducting an auction, any portion of
which contains any leasehold or any estate in land whether
corporeal or incorporeal, freehold or nonfreehold, when such person
is retained to conduct an auction by a receiver or trustee in
bankruptcy, a fiduciary acting under the authority of a deed of
trust or will, or a fiduciary of a decedent's estate:
Provided,
That nothing contained in this article exempts persons conducting
sales at public markets from the provisions of article two-a of
this chapter, where the sale is confined solely to livestock,
poultry and other agriculture and horticulture products.
(b) The term "public auction" means any public sale of real or
personal property when offers or bids are made by prospective
purchasers and the property sold to the highest bidder.
(c) The term "commissioner" means the Commissioner of
Agriculture of West Virginia.
(d) The term "department" means the West Virginia Department
of Agriculture.
(e) The term "person" means corporations, partnerships,
associations, societies, individuals or group of individuals or any
employee, servant or agent acting or employed by any person.
§19-2C-2. License required.
After the thirtieth day of June, one thousand nine hundred
seventy-four, no No person shall conduct an auction as an auctioneer in
this state West Virginia unless he
or she shall have
has first obtained
from the commissioner a an auctioneer license
therefor from the commissioner.
§19-2C-3. Application for license; renewal; Department of
Agriculture as statutory agent for licensees; fee.
Any person who wishes to conduct an auction as an auctioneer
may apply for a license on forms prescribed by the commissioner and
containing such information as the commissioner may require by a
legislative rule promulgated in accordance with article three,
chapter twenty-nine-a of this code. A nonreturnable application
fee of fifty dollars shall accompany each application as well as a
license fee of fifty dollars. All fees collected under this
article shall be paid into a special revenue fund in the state
treasury to be used by the department of agriculture for the
expressed purpose of administering and enforcing this article and
for providing continuing education for auctioneers: Provided, That
for the fiscal year ending the thirtieth day of June, one thousand
nine hundred ninety-seven, fees collected under this article shall
be paid into the state fund, general revenue.
In addition to the payment of fees, an applicant shall file
with his or her application a bond as required in section four of
this article.
(a) An applicant for an auctioneer or apprentice auctioneer
license shall:
(1) Submit the application on specified forms and provide all
information required by the commissioner by rule;
(2) Pay a nonrefundable application fee of fifty dollars;
(3) Pay the license fee of fifty dollars;
(4) File the bond required by section four of this article.
(b) The commissioner shall, within thirty days after the
receipt of an application, notify the applicant of his or her
eligibility to be examined at the next regularly scheduled
examination, as well as the date of the examination.
(c) In the event the license is denied, the commissioner shall
refund the license fee submitted with the application to the
applicant.
(d) Licenses
issued expire on the thirty-first day of December
of each year but are renewable upon the payment of the annual
license fee within sixty days of the expiration date. Renewals
received more than sixty days after the expiration date are subject
to a late renewal fee of twenty-five dollars in addition to the
annual renewal fee.
Renewal forms will be mailed to current
licensees. Failure to receive the renewal form does not relieve a
licensee of the obligation to renew. The commissioner shall not
renew licenses which have been expired for
more than two years
or
more and the
former auctioneer or apprentice auctioneer
shall is
required to take the written and oral examination,
and pay the
examination fee,
pay the nonrefundable application fee and pay the annual license fee in order to
renew his or her license be issued
a valid license.
The commissioner shall not renew a license unless
the applicant complies with the other requirements of this article.
No renewal license will be issued unless the applicant complies
with all other requirements of this article.
(e) The commissioner shall not issue or renew a license if the
applicant or licensee has been convicted of a felony or crime
involving forgery, embezzlement, obtaining money under false
pretenses, larceny, extortion, conspiracy to defraud or other like
offense during the five years immediately preceding application or
renewal.
Where an auctioneer or apprentice auctioneer requires a
duplicate or replacement license or a license reflecting a change
in information, the auctioneer or apprentice auctioneer shall
submit a fee of five dollars with the request.
(f) All requests for a duplicate or replacement license must
be in writing and must be accompanied by a fee of ten dollars.
(g) All requests for the issuance of a letter in good standing
must be in writing and must be accompanied by a fee of twenty-five
dollars.
(h) The State Department of Agriculture is the agent for the
purpose of service of process on any licensed auctioneer for any
action occasioned by the performance of the duties of the
auctioneer. Every licensed auctioneer, by virtue of his or her application for a license, shall be considered to have consented to
the statutory agency.
(i) All fees collected under this article shall be paid into
a special revenue fund as provided in section four-c, article one
of this chapter.
§19-2C-4. Bond required.
(a) Every Each person applying for a license as an auctioneer
,
apprentice auctioneer or continuing to act as a licensed auctioneer
or apprentice auctioneer shall file with the commissioner and
maintain in full effect a bond satisfactory to the commissioner and
in form and amount as prescribed by the commissioner
pursuant to
the rules and regulations promulgated in accordance with this
article by rule:
Provided
, That in no event shall the amount of
such the bond be less than ten thousand dollars for an auctioneer
and in no event or less than five thousand dollars for an
apprentice auctioneer. The bond may include, at the option of the
applicant
or licensee, corporate surety bonding, collateral bonding
(including costs and securities), establishment of an escrow
account, an irrevocable letter of credit or a combination of these
methods. If collateral bonding is used, the
auctioneer applicant
or licensee may elect to deposit cash, or any of the following
collateral securities or certificates: bonds of the United States
or its possessions, of the federal land bank, or of the homeowners'
loan corporation; full faith and credit general obligation bonds of the State of West Virginia, or other states, and of any county,
district, or municipality of the State of West Virginia or other
states; or certificates of deposit in a bank in this State, which
certificates shall be in the name of the department. The cash
deposit or market value of
such the securities or certificates
shall be equal to or greater than the sum of the bond. It shall be
the duty of the applicant
or licensee to ensure the market value of
such the bonds is sufficient. The commissioner shall, upon receipt
of any
such deposits of cash, securities or certificates, promptly
place the same with the Treasurer of the State of West Virginia
whose duty it shall be to receive and hold the same in the name of
the State in trust for the purpose for which the deposit is made
when the license is issued. The applicant
or licensee making the
deposit shall be entitled from time to time to receive from the
State Treasurer, upon written approval of the commissioner, the
whole or any portion of any cash, securities or certificates
so
deposited, upon depositing with him
or her in lieu thereof, cash or
other securities or certificates of the classes herein specified
having value equal to or greater than the sum of the bond.
Such
The bond shall be conditioned upon the faithful compliance by the
auctioneer applicant or licensee with the provisions of this
article and the payment of all required taxes, fees and penalties
imposed by this State and its political subdivisions, as well as
the payment by any
auctioneer licensee of any final judgment obtained for damages arising out of his conduct or duties as an
auctioneer.
Such The bond shall be open to public inspection.
(b) Each person applying for an apprentice auctioneer license,
within thirty days after receiving notice of passing the
examination, shall file a bond with the commissioner in an amount
of no less than five thousand dollars and in the same form as
authorized by subsection (a) of this section.
§19-2C-5. Requirements for auctioneer license; rules; duties of
licensee.
(1) (a) Each person seeking
a an auctioneer license
hereunder
after the effective date of this section shall submit satisfactory
evidence to the commissioner showing:
(a) (1) That he or she has successfully completed the written
and oral examinations provided
for in this article;
(b) (2) That he or she has a good reputation;
(c) (3) That he or she is of trustworthy character;
(d) (4) That he or she has met the apprenticeship requirements
set forth in this article, if applicable;
(e) (5) That he or she is a citizen of the United States;
and
(f) (6) That he or she has a general knowledge of the
auctioneering profession and the principles involved in conducting
an auction;
and
(7) That he or she is at least eighteen years of age.
(2) (b)(1) The commissioner shall
promulgate such reasonable rules and regulations as he or she considers necessary to carry out
the intent and the administration and enforcement of this article,
which said rules and regulations shall be promulgated in accordance
with the applicable provisions of chapter twenty-nine-a of this
code propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
necessary to implement and enforce the provisions of this article,
including, but not limited to: (A) the examinations administered
under this article; (B) issuing and renewing licenses; (C) denying,
suspending, revoking or reinstating licenses; (D) continuing
professional education requirements for licensees; (E) professional
conduct requirements; (F) hearings; and (G) the maintenance and
inspection of records.
(2) All rules in effect at the time the amendment to this
section is effective remain in effect until they are superseded.
(3) The commissioner may propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code setting or changing the amount
of a fee authorized by this article.
(3) (c) Each
licensee shall auctioneer and apprentice
auctioneer must carry his or her pocket license and promptly
produce
it for inspection
such license at all sales conducted by
or
participated in by such the licensee.
when requested to do so by
any person and The auctioneer shall keep complete and accurate records of all transactions engaged in for a period of six months.
which The records shall be open to inspection by the commissioner
or his
or her authorized representative.
(d) If a buyer premium or any surcharge is a condition to sale
at any auction, the amount of the premium or surcharge must be
placed in the advertisement and announced at the beginning of the
auction. A written notice of this information must also be
conspicuously displayed or distributed to the public at the auction
site.
§19-2C-5a. Examinations of applicants; excuse for illness; fee
renewal.
(a) Examinations shall be held in April and October of each
year, at a time and place to be designated by the commissioner or
his
or her authorized representative.
(b) Any
individual auctioneer applicant may take the
examination for auctioneer or apprentice auctioneer at the
regularly scheduled time and place. The apprentice
auctioneer's
auctioneer license examination
shall consist of is a written
examination. The
auctioneer's auctioneer license examination
will
consist of is both a written and oral examination. The passing
grade for any written examination
shall be seventy is seventy-five
percent out of one hundred percent. The oral
portion will be
examination is scored by the commissioner or his
or her authorized
representative. If the applicant fails either the written or oral portion of the examination, no license will be issued and he or she
shall not be administered may not take the examination again until
the next regularly scheduled examination date. A person who is
qualified for an auctioneer's license as provided for in this
article is considered to be a professional in his
or her trade.
(c) One notice only Only one notice of the examination
shall
will be mailed to the applicant at the address given on the
application. If the applicant fails to appear for
such the
examination, except as
otherwise provided
herein pursuant to this
subsection, a new application and
a new fee shall be applicable
fees are required
to be submitted.
No fee shall be The examination
fee will not be returned
except when unless the applicant fails to
take the examination because of illness evidenced by a doctor's
certificate sent to the commissioner. If excused because of
illness the applicant
shall will be admitted to the next scheduled
examination without paying an additional
examination fee. No
applicant
shall will be excused from taking the scheduled
examination for any reason other than illness unless in the
judgment of the commissioner the applicant would suffer undue
hardship by not being excused.
(d) An The examination fee
of is fifty dollars.
It is in
addition to any other fees required by this article
, shall be
collected from each person taking such examination. If the
applicant has previously paid the examination fee and successfully completed the apprentice
auctioneer's auctioneer examination, no
additional examination fee
will be is required to take the
auctioneer's auctioneer examination
as provided for in this
article.
(e) Each applicant must exhibit photographic identification
when taking the examination.
(f) If the commissioner determines that an applicant does not
qualify for a license, he or she
shall so will notify the applicant
by certified mail. The notice
shall must state the reason for
refusal to grant a license and the applicant's right to appeal the
commissioner's decision within twenty days of receipt of the
notice.
(g) An examination
shall is not
be required for the renewal of
any license.
unless such If the license
has been was revoked or
suspended,
in which case the applicant may be required
, by the
commissioner, to take and pass
any a written or oral examination
required by the department. In cases where a license has been
expired for more than two years and
was not
been revoked or
suspended, the applicant
is may be required to take and pass
any
written and oral examinations
required by the department.
The
commissioner is hereby authorized to promulgate rules as he or she
considers necessary for the renewal of auctioneer licenses,
including, but not limited to, requirements for continuing
education of auctioneers.
§19-2C-5b. Change of address.
Each licensee must give written notice of any change of
principal business location or residence address to the department
within ten days of the change. In the event of a change of
address, the department will issue a new license for the unexpired
license period. The fee for the replacement license is ten dollars.
A post office box is not acceptable as the principal business
location.
§19-2C-6. Apprentice licenses; fees.
(a) The
department of agriculture commissioner may grant
an
apprentice
auctioneer's licenses auctioneer license to
those
persons considered a qualified
by the commissioner person. Every
applicant for an apprentice
auctioneer's auctioneer license must
take and pass a written examination relating to the skills and
knowledge and statutes and regulations governing auctioneers.
Every applicant shall furnish to the commissioner on
specified
forms
provided by the department satisfactory proof of the
following:
(a) (1) That he or she has a good reputation;
(b) (2) That he or she is a trustworthy character;
and
(c) (3) That he or she is a citizen of the United States;
and
(4) That he or she is at least eighteen years of age.
(b) Any An apprentice auctioneer may take the examination to
become an auctioneer after serving a two-year apprenticeship under a licensed auctioneer:
Provided, That if the apprentice auctioneer
has attended a nationally accredited graduate school of
auctioneering, approved by the commissioner, he or she shall serve
an apprenticeship of only six months. Before an apprentice
auctioneer may take the
auctioneer's auctioneer examination, the
apprentice auctioneer shall conduct at least
six eight auction
sales under the direct supervision of the sponsoring auctioneer.
The commissioner may waive the requirements of this section, on an
individual basis, upon the presentation of written evidence that
the applicant has educational training or exceptional experience in
the auctioneering profession and that the applicant has been unable
to obtain sponsorship by a licensed auctioneer:
Provided, however,
That the commissioner shall
promulgate rules and regulations
propose rules for legislative approval in accordance with article
three, chapter twenty-nine-a of this code setting forth educational
and experience qualifications which would entitle an individual to
a waiver of the provisions of this section:
Provided further, That
the commissioner
shall may not waive apprenticeship requirements
for any applicant without the concurrence of the board of review.
(c) When
any an apprentice auctioneer is discharged or
terminates his
or her employment with an auctioneer for any reason,
the auctioneer shall immediately provide written notification to
the commissioner. No discharged or terminated apprentice
auctioneer shall thereafter perform any acts under the authority of his
or her license until
such the apprentice auctioneer
applies for
and receives a
new revised license
bearing the name and address of
his new employer. No more than one license
shall may be issued to
any an apprentice auctioneer for the same period of time. The fee
for the
transfer of the revised license
of an apprentice auctioneer
to a new employer auctioneer is fifteen dollars.
The fee for the annual renewal of the apprentice auctioneer's
license is fifty dollars. Bond requirements for an apprentice
auctioneer shall be established by reasonable rules and regulations
promulgated by the commissioner, and both the annual renewal fee
and the bond must be filed with the department of agriculture:
Provided, That the bond required by this section shall not be less
than five thousand dollars. The department shall not issue an
apprentice auctioneer's license until bond has been filed in
accordance with this article. All apprentice auctioneer licenses
expire on the thirty-first day of December of each year but are
renewable upon the payment of the annual fee.
§19-2C-6b. Duties and responsibilities of apprentice auctioneer;
sponsoring auctioneer.
(a) An apprentice auctioneer
shall may only conduct or assist
in auctions under the direct supervision of his
or her sponsoring
auctioneer. A licensed apprentice auctioneer may not enter into a
contract to conduct an auction unless the contract is cosigned by
his
or her sponsoring auctioneer.
(b) The sponsoring auctioneer is responsible for the actions
of an apprentice auctioneer. It is his
or her responsibility to
insure adherence to
this and all applicable
sections of state law:
Provided, That if the apprentice auctioneer conducts auctions
without the consent of his
or her sponsor, only the apprentice
auctioneer is subject to the penalties in section eight of this
article.
(c) An auctioneer may not sponsor more than three apprentice
auctioneers at one time. An auctioneer who serves as a sponsor
must have held an active, valid license for the three consecutive
years preceding the date on which the auctioneer is named as a
sponsor.
§19-2C-6c. Procedure for obtaining nonresident auctioneer and
apprentice auctioneer license.
(a) To qualify for a
nonresident West Virginia auctioneer or
apprentice auctioneer license by reciprocity, the applicant must
show evidence of licensing in evidence of licensing by another
state for a period of one year preceding the date of application
and meet all other requirements of this article. The
licensing
out-of-state license may
have been as be an apprentice auctioneer
license or
as an auctioneer
license.
Provided this qualification
is met and the applicant meets all the other requirements as
required by this article and by regulation, he or she shall The
applicant may be
licensed issued either
as an apprentice auctioneer
license or
as an auctioneer
license, whichever corresponds to the
class of out-of-state license then held by the applicant based on
a nonresident license, as the case may be.
(b) When an applicant's resident state
has no licensing law
for auctioneers does not license auctioneers or the applicant's
resident state
has no does not require a written or oral
examination
associated with its licensing requirements, the
department of agriculture commissioner shall require proof that the
applicant has been a practicing auctioneer for a period of two
years preceding the date of application
and meets all other
requirements of this article. The proof
of practice shall may be
in the form of sale bills, contracts, sale permits
and or other
such evidence acceptable to the commissioner.
Provided this
qualification is met, and the applicant meets other requirements
for licensing as required by the statutes and regulations, the
applicant Qualified applicants shall be admitted to the next
scheduled written and oral examination for auctioneers without
being required to first serve an apprenticeship.
19-2C-6d. Continuing education.
(a) An auctioneer must complete six hours of continuing
education each calendar year in order to qualify to renew his or
her license for the next year.
(1) Only classes taught by course providers approved by the
commissioner qualify for credit.
(2) At least three hours of the required six hours of class
must be from core subjects. Core subjects are:
(A) West Virginia statutes and rules governing autioneering;
(B) Federal statutes and rules governing auctioneering;
(C) Auctioneering ethics;
(D) Escrow, trust and custodial accounts;
(E) Contracts; and
(F) Other subjects approved by the commissioner.
(3) At least three hours of the required six hours of class
may be from elective subjects. Elective subjects are:
(A) Real estate law;
(B) Auction management;
(C) Bid calling;
(D) Advertising;
(E) Public speaking;
(F) Business law; and
(G) Other subjects approved by the commissioner.
(b) An auctioneer who conducts no more than three auctions in
a calendar year must complete three hours of continuing education
each calendar year in order to qualify to renew the license for the
next year. The three hours may be from either or both core and
elective subjects.
§19-2C-7. Orders of commissioner; hearing; review.
Any An order of the commissioner shall be served
by him upon on all
affected persons
affected thereby by
registered certified
mail. Within ten days of the receipt of
such the order
, any party
adversely affected
thereby may, in writing, request a hearing
before the commissioner.
Such The hearing
and any judicial review
thereof shall be conducted in accordance with the
applicable
provisions
governing contested administrative cases of articles
five and six in article five, chapter twenty-nine-a of this code
as
if the same were set forth herein in extenso. The effect of
any an
order shall be suspended during the course of
any the hearing
or
subsequent appeals.
§19-2C-8. Penalties for violation of article or rules.
(a)
Criminal penalties. --
(1) Any person
, firm, association
or corporation violating any
of the provisions provision of this
article,
or of the rules and regulations adopted pursuant to the
provisions thereof including legislatively approved rules, shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than
fifty one hundred dollars nor more than two
hundred
fifty dollars for the first offense, and not less than
four
five hundred dollars nor more than one thousand dollars for the
second and subsequent offenses. Magistrates have concurrent
jurisdiction with circuit courts to enforce the provisions of this
article.
(2) It shall be the duty of the prosecuting attorney of the
county in which the violation occurred to represent the department, to institute proceedings, and to prosecute the person charged with
a violation.
(b)
Civil penalties. - (1) Any person violating a provision of
this article or any
legislatively approved rule
or regulation
adopted hereunder may be assessed a civil penalty by the
commissioner. In determining the amount of any civil penalty, the
commissioner shall give due consideration to the history of
previous violations of the person, the seriousness of the
violation, and the demonstrated good faith of the person charged in
attempting to achieve compliance with this article before and after
written notification of the violation; (2) the commissioner may
assess a penalty of not more than two hundred
fifty dollars for
each the first offense, and not more than one thousand dollars for
a second and subsequent offense; and (3) the civil penalty is
payable to the State of West Virginia and is collectible in any
manner
now or hereafter provided authorized by law for
the
collection of
debt debts.
If any Any person liable to pay
the a
civil penalty
who neglects or refuses to pay the
same penalty
within thirty days of written notice and demand for payment, shall
be assessed, the amount of the civil penalty, together with
interest at
the rate of ten percent
per year from the date the
penalty was assessed to the date of payment, is a
The penalty and
interest constitute a lien in favor of the State of West Virginia
and shall attach upon on the
person's property
, both real and personal, of such a person after the same has been entered and
docketed to record in the county where such property is situated.
The clerk of the county, upon receipt of the certified copy of
such, shall enter same to record without requiring the payment of
costs as a condition precedent to recording. when a lien is
properly recorded in the county wherein the property is situated.
There shall be no cost as a condition precedent to recording. (4)
The commissioner may negotiate and enter into a settlement
agreement for the payment of civil penalties.
(c) Notwithstanding any other provision of law to the
contrary, the commissioner may promulgate and adopt rules which
permit consent agreements or negotiated settlements for the civil
penalties assessed as a result of violation of the provisions of
this article.
(d) (c) No state court may allow for the recovery of damages
for any administrative action taken if the court finds that there
was probable cause for
such the action.
§19-2C-8a. Revocation.
(a) In addition to the penalties in section eight of this
article, the commissioner may, by order, suspend, deny or revoke
any a license
granted hereunder for
any a violation of this article
or the
legislatively approved rules
and regulations promulgated
hereunder or for
any of the following reasons:
(a)(1) Obtaining a license
through by false or fraudulent representation;
(b)(2) Making
any substantial misrepresentation in
any an
application for an
auctioneer's auctioneer or apprentice
auctioneer's auctioneer license;
(c)(3) Engaging in a continued or flagrant course of
misrepresentation or for making false promises through an agent,
advertisement or otherwise;
(d)(4) Failing to account for or remit within
a reasonable
time any fourteen business days of a completed sale or auction
money belonging to others that comes into his
or her possession
as
a result of a sale or auction;
(e)(5) Being convicted in any court of competent jurisdiction
of this State or any other state of a criminal offense involving
moral turpitude or a felony; or for failing to notify the
department of
any such a conviction within fifteen days of
the
conviction;
(f)(6) Engaging in any conduct
of as an auctioneer which
demonstrates dishonesty or incompetency;
(g)(7) Engaging in any other conduct that constitutes
fraudulent or dishonest dealing;
and
(h)(8) Acting as an attorney;
for a client and
(9) Failing to establish an escrow or custodial account within
three business days as required by section nine-a of this article.
(b) Any auctioneer or apprentice auctioneer who has had his
or her license suspended
, not renewed or revoked
shall not be issued
another such license until a period not to exceed two years has
elapsed from the date of revocation must be afforded an opportunity
to demonstrate the qualifications to be licensed. The application
for reinstatement must be in writing and is subject to the
procedures specified by the commissioner by rule. The commissioner
may
also require the successful completion of the examinations
required for an
auctioneer's auctioneer license or an apprentice
auctioneer's auctioneer license.
§19-2C-9. Written contracts; exception.
(a) No
person shall act as auctioneer
on the may conduct a
sale at public auction of any goods, wares, merchandise or of any
other property, real or personal, until he or she has entered into
a written contract in duplicate with the owner or consignor of the
property to be sold, containing the terms and conditions upon which
the licensee receives or accepts the property for sale at auction.
No apprentice auctioneer shall be authorized to enter into a
contract without the written consent of his or her sponsoring
auctioneer. All contracts shall be in the name of and on behalf of
the sponsoring auctioneer.
The commissioner may require by rule the following
(a) That written contracts between the auctioneer and the
seller be made in duplicate;
(b) That the original contract is to be retained by the auctioneer for a period of six months;
(c) That one copy of the contract is to be furnished to each
person that entered into the contract;
(d) That an apprentice auctioneer may not contract directly
with a client but only through his or her sponsoring auctioneer;
(e) That an apprentice auctioneer may not engage in a sale
with an auctioneer by whom he or she is not sponsored without first
obtaining the written consent of his or her sponsoring auctioneer;
and
(f) That on all contracts between an auctioneer and a seller
there shall be a prominent statement indicating that the auctioneer
is licensed by the department of agriculture and bonded in favor of
the state of West Virginia.
(c) One copy of a contract must be furnished to each person
who is a party to the contract.
(d) An apprentice auctioneer may not execute a contract to
conduct a sale except through his or her sponsoring auctioneer.
(e) All contracts executed by an auctioneer must contain a
prominent statement that the auctioneer is licensed by the
Department of Agriculture and is bonded in favor of the State of
West Virginia.
§19-2C-9a. Sale proceeds; escrow account; accounting.
(a) All funds received by an auctioneer which are not
disbursed to the contracting party immediately upon the completion
of the sale must be deposited in an insured escrow account at a
bank or savings and loan association located within this State for
the benefit of the contracting party within three business days of
the completed sale.
(b) The auctioneer must make payment to the contracting party
no later than fourteen business days after the completed sale. At
the time funds are disbursed, the auctioneer shall provide a
written settlement statement setting forth: the name and address of
the contracting party; the amount of the disbursement; and the
reason for the disbursement. The settlement statement must be
signed by both the auctioneer and the person receiving the
disbursement. In addition to the settlement statement, the
auctioneer must maintain written records which disclose the names
of all buyers, the items purchased and the amount of payment
received from each buyer. Further, the records must disclose the
names of the seller and the amount payable to each seller. All
written records must be delivered to the contracting party within
fourteen business days of the completed sale.
(c) Any exception to settlement being made within fourteen
business days must be in writing in the contract between the
auctioneer and the seller.
(d) Each auctioneer must maintain his or her written records for no less than five years. In addition to the records set forth
in subsections (a) and (b) of this section, an auctioneer must keep
complete records showing all escrow account activity. The
commissioner or his or her designated agent may inspect these
records periodically without prior notice and may inspect these
records whenever the commissioner determines that they may be
pertinent to an investigation of a complaint against an auctioneer.
NOTE: The purpose of this bill is to modify and update
auctioneer licensing requirements, fees and continuing education.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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