H. B. 4067
(By Delegates Stemple, Beach, Coleman, Swartzmiller,
Williams, Yeager and Anderson)
[Introduced January 19, 2004; referred to the
Committee on Agriculture and Natural Resources
then 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 or offenses or has been convicted of any other crime
in a court of competent jurisdiction of this or any other state,
district or territory of the United States or of a foreign
country 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 licence 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.
§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 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 a auctioneer's
license as provided for in this article is considered to be a
professional in his 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 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 auctionnering;
(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 and
regulations.
(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.
(b) The original contract must be retained by the auctioneer
for a period of six months from the date the sale is completed.
(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 of 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.
§§19-2C-5b, 6d and 9a are new; therefore, strike-throughs
and underscoring have been omitted.
This bill is recommended for passage during the 2004 regular
sessionby the interim Committee on Agriculture and Agribusiness.