House Bill 4091
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Florida House of Representatives - 1998 HB 4091
By Representative Trovillion
1 A bill to be entitled
2 An act relating to auctioneers; amending s.
3 468.385, F.S.; revising provisions relating to
4 the written examination required for licensure
5 as an auctioneer; amending s. 468.388, F.S.;
6 eliminating exemptions from the requirement
7 that a written agreement be executed prior to
8 conducting an auction; amending s. 468.389,
9 F.S.; revising a ground for disciplinary action
10 relating to failure to account for or to pay
11 certain money, to include reference to property
12 belonging to another; providing penalties;
13 reenacting ss. 468.385(3)(b) and 468.391, F.S.,
14 relating to licensure as an auctioneer and to a
15 criminal penalty, respectively, to incorporate
16 the amendment to s. 468.389, F.S., in
17 references thereto; amending s. 468.393, F.S.;
18 reducing the level at which the Auctioneer
19 Recovery Fund must be maintained and for which
20 surcharges are levied; reenacting s.
21 468.392(5), F.S., relating to moneys in the
22 Auctioneer Recovery Fund, to incorporate the
23 amendment to s. 468.393, F.S., in references
24 thereto; amending s. 468.395, F.S.; revising
25 circumstances under which recovery from the
26 Auctioneer Recovery Fund may be obtained;
27 reducing the amount per claim or claims arising
28 out of the same transaction or auction and the
29 aggregate lifetime limit with respect to any
30 one licensee that may be paid from the fund;
31 amending s. 468.396, F.S., relating to claims
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1 against a single licensee in excess of the
2 dollar limitation, to conform; eliminating
3 semiannual identification and payment of
4 claims; amending s. 468.397, F.S., relating to
5 payment of claim; correcting language;
6 providing an effective date.
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8 Be It Enacted by the Legislature of the State of Florida:
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10 Section 1. Subsections (4) and (6) of section 468.385,
11 Florida Statutes, are amended to read:
12 468.385 Licenses required; qualifications;
13 examination; bond.--
14 (4) Any person seeking a license as an auctioneer
15 shall pass a written examination approved by the board and
16 certified prepared and administered by the department which
17 tests his or her general knowledge of the laws of this state
18 relating to the Uniform Commercial Code bulk sales, auctions,
19 laws of agency brokerage, and the provisions of this act.
20 (6) No person shall be licensed as an auctioneer
21 unless he or she:
22 (a) Has held an apprentice license and has served as
23 an apprentice for 1 year or more, or has completed a course of
24 study, consisting of not less than 80 classroom hours of
25 instruction, that meets standards adopted by the board;
26 (b) Has passed the required an examination conducted
27 by the department; and
28 (c) Is approved by the board.
29 Section 2. Section 468.388, Florida Statutes, is
30 amended to read:
31 468.388 Conduct of an auction.--
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1 (1) Prior to conducting an auction in this state, an
2 auctioneer or auction business shall execute a written
3 agreement with the owner, or the agent of the owner, of any
4 property to be offered for sale, stating:
5 (a) The name and address of the owner of the property;
6 (b) The name and address of the person employing the
7 auctioneer or auction business, if different from the owner;
8 and
9 (c) The terms or conditions upon which the auctioneer
10 or auction business will receive the property for sale and
11 remit the sales proceeds to the owner.
12 (2) The auctioneer or auction business shall give the
13 owner one copy of the agreement and shall keep one copy for 2
14 years after the date of the auction.
15 (3) A written agreement shall not be required if:
16 (a) The auction is to be conducted at an auction house
17 or similar place where the public regularly offers property
18 for sale;
19 (b) There has been no prior negotiation between the
20 owner or the owner's agent and the auctioneer or auction
21 business involving terms or conditions pertaining to the
22 property being offered for sale; and
23 (c) The total estimated value of the property is $500
24 or less. If the actual sale price of the property exceeds
25 $550, the written agreement required by subsection (1) shall
26 be executed after the sale.
27 (3)(4) Each auctioneer or auction business shall
28 maintain a record book of all sales for which a written
29 agreement is required. The record book shall be open to
30 inspection by the board at reasonable times.
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1 (4)(5) Each auctioneer or auction business shall
2 prominently display his or her license, or make it otherwise
3 available for inspection, at each auction in which he or she
4 participates.
5 (5)(6) All advertising by an auctioneer or auction
6 business shall include the name and Florida license number of
7 such auctioneer and auction business. The term "advertising"
8 shall not include articles of clothing, directional signs, or
9 other promotional novelty items.
10 Section 3. Paragraph (c) of subsection (1) of section
11 468.389, Florida Statutes, is amended to read:
12 468.389 Prohibited acts; penalties.--
13 (1) The following acts shall be grounds for the
14 disciplinary activities provided in subsections (2) and (3):
15 (c) Failure to account for or to pay or pay for,
16 within a reasonable time not to exceed 30 days, money or
17 property belonging to another which has come into the control
18 of an auctioneer or auction business through an auction.
19 Section 4. For the purpose of incorporating the
20 amendment to section 468.389, Florida Statutes, in references
21 thereto, paragraph (b) of subsection (3) of section 468.385
22 and section 468.391, Florida Statutes, are reenacted to read:
23 468.385 Licenses required; qualifications;
24 examination; bond.--
25 (3) No person shall be licensed as an auctioneer or
26 apprentice if he or she:
27 (b) Has committed any act or offense in this state or
28 any other jurisdiction which would constitute a basis for
29 disciplinary action under s. 468.389.
30 468.391 Penalty.--Any auctioneer, apprentice, or
31 auction business or any owner or manager thereof, or, in the
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1 case of corporate ownership, any substantial stockholder of
2 the corporation owning the auction business, who operates
3 without an active license or violates any provision of the
4 prohibited acts listed under s. 468.389 commits a felony of
5 the third degree, punishable as provided in s. 775.082 or s.
6 775.083.
7 Section 5. Subsections (2) and (3) of section 468.393,
8 Florida Statutes, are amended to read:
9 468.393 Surcharge to license fee; assessments.--
10 (2) If the total amount in the Auctioneer Recovery
11 Fund, including principal and interest, exceeds $250,000
12 $500,000 at the end of the state fiscal year after the payment
13 of all claims and expenses, the amount in excess of $250,000
14 $500,000 shall remain in the fund for benefit of the licensees
15 in tolling the surcharge until such time as the surcharge
16 shall need replenishing.
17 (3) After October 1, 1995, if the total amount in the
18 Auctioneer Recovery Fund, including principal and interest, is
19 less than $200,000 at the end of the fiscal year after the
20 payment of all claims and expenses, the board shall assess, in
21 addition to any other fees under s. 468.3852, a surcharge
22 against a licensee at the time of initial licensure or at the
23 time of license renewal, according to the following formula in
24 order to maintain the fund at $250,000 $500,000:
25 (a) Determine the amount remaining in the fund at the
26 end of the state fiscal year after all expenses and claims
27 have been paid.
28 (b) Subtract the amount determined under paragraph (a)
29 from $250,000 $500,000.
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1 (c) Determine the number of initial licenses and
2 license renewals in the fiscal year that precedes the current
3 fiscal year.
4 (d) Divide the amount determined under paragraph (b)
5 by the number determined under paragraph (c).
6 Section 6. For the purpose of incorporating the
7 amendment to section 468.393, Florida Statutes, in references
8 thereto, subsection (5) of section 468.392, Florida Statutes,
9 is reenacted to read:
10 468.392 Auctioneer Recovery Fund.--There is created
11 the Auctioneer Recovery Fund as a separate account in the
12 Professional Regulation Trust Fund. The fund shall be
13 administered by the Florida Board of Auctioneers.
14 (5) Moneys in the fund at the end of a fiscal year
15 shall be retained in the fund and shall accrue for the benefit
16 of auctioneers and auction businesses. When the fund exceeds
17 the amount as set forth in s. 468.393(2), all surcharges shall
18 be suspended until such time as the fund is reduced below the
19 amount as set forth in s. 468.393(3).
20 Section 7. Section 468.395, Florida Statutes, is
21 amended to read:
22 468.395 Conditions of recovery; eligibility.--
23 (1) Recovery from the Auctioneer Recovery Fund may be
24 obtained under either of the following circumstances:
25 (a) Any aggrieved person is eligible to receive
26 recovery from the Auctioneer Recovery Fund if the Florida
27 Board of Auctioneers has issued a final order directing an
28 offending licensee to pay restitution to the claimant as the
29 result of the licensee violating, within this state, any
30 provision of s. 468.389 or any rule adopted by the board and
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1 the board determines that the order of restitution cannot be
2 enforced; or
3 (b) Any aggrieved person who obtains a final judgment
4 in any court against any licensee to recover damages for an
5 actual cash loss resulting from the violation, within this
6 state, by failure to meet the obligations of a licensee, of
7 any provision of s. 468.389 or any rule under this part and
8 the rules adopted by the board, with or without findings by
9 the board, that results in an actual cash loss to the
10 aggrieved person may, upon termination of all proceedings,
11 including appeals and proceedings supplemental to judgment for
12 collection purposes, file a verified application to the board
13 in the court in which the judgment was entered for an order
14 directing payment out of the Auctioneer Recovery Fund of the
15 amount of actual and direct loss in the transaction that
16 remains unpaid upon the judgment. Notwithstanding subsection
17 (3), any application received by the court in which the
18 judgment was entered within 6 months of termination of all
19 proceedings, including appeals and proceedings supplemental to
20 judgment for collection purposes, shall be considered timely
21 filed. The amount of actual and direct loss may include court
22 costs, but shall not include attorney's fees or punitive
23 damages awarded.
24 (2) The amount paid from the Auctioneer Recovery Fund
25 may not exceed $25,000 $50,000 per claim judgment or claims
26 judgments arising out of the same transaction or auction nor
27 and an aggregate lifetime limit of $50,000 $100,000 with
28 respect to any one licensee.
29 (2) At the time the action is commenced, such person
30 shall give notice thereof to the board by certified mail,
31 except that, if no notice is given to the board, the claim may
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1 still be honored if, in the opinion of the board, the claim is
2 otherwise valid.
3 (3) A claim for recovery from the Auctioneer Recovery
4 Fund shall be made within 2 years from the time of the act
5 giving rise to the claim or within 2 years from the time the
6 act is discovered or should have been discovered with the
7 exercise of due diligence; however, in no event may a claim
8 for recovery be made more than 4 years after the date of the
9 act giving rise to the claim.
10 (4) The board court shall not issue an order for
11 payment of a claim from the Auctioneer Recovery Fund unless
12 the claimant has reasonably established for the board court
13 that she or he has taken proper and reasonable action to
14 collect the amount of her or his claim from the licensee
15 licensed auctioneer responsible for the loss and that any
16 recovery made has been applied to reduce the amount of the
17 claim on the Auctioneer Recovery Fund.
18 (5) Notwithstanding any other provision of this part,
19 no claim based on any act or omission occurring outside this
20 state or occurring prior to October 1, 1995, shall be payable
21 submitted for payment to or payment from the Auctioneer
22 Recovery Fund until after October 1, 1995.
23 (6) In case of payment of loss from the Auctioneer
24 Recovery Fund, the fund shall be subrogated, to the extent of
25 the amount of the payment, to all the rights of the claimant
26 against any licensee with respect to the loss.
27 Section 8. Section 468.396, Florida Statutes, is
28 amended to read:
29 468.396 Claims against a single licensee in excess of
30 dollar limitation; joinder of claims, payment; insufficient
31 funds.--
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1 (1) If the payment in full of two or more pending
2 valid claims that have been filed by aggrieved persons against
3 a single licensee would exceed the $25,000 $50,000 limit as
4 set forth in s. 468.395, the $25,000 $50,000 shall be
5 distributed among the aggrieved persons in the ratio that
6 their respective claims bear to the aggregate of all valid
7 claims or in any other manner that a court of record may
8 determine to be equitable. Such money shall be distributed
9 among the persons entitled to share in it without regard to
10 the order of priority in which their respective judgments have
11 been obtained or their claims have been filed.
12 (2) Upon petition of the board, the court may require
13 all claimants and prospective claimants against one licensee
14 to be joined in one action, to the end that the respective
15 rights of all the claimants to the board may be equitably
16 adjudicated and settled.
17 (3) On June 30 and December 31 of each year, The board
18 shall identify each claim that the court orders to be paid and
19 shall pay the claim as provided in s. 468.397 during the
20 6-month period that ended on that day. The board shall pay the
21 part of each claim that is so identified within 15 days after
22 the end of the 6-month period in which the claim is ordered
23 paid. However, if the balance in the fund is insufficient to
24 pay the full payable amount of each claim that is ordered to
25 be paid during a 6-month period, the board shall pay a
26 prorated portion of each claim that is ordered to be paid
27 during the period. Any part of the payable amount of a claim
28 left unpaid due to the prorating of payments under this
29 subsection shall be paid, subject to the $50,000 limit
30 described in s. 468.395, before the payment of claims ordered
31 to be paid during the following 6 months.
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1 Section 9. Section 468.397, Florida Statutes, is
2 amended to read:
3 468.397 Payment of claim.--Upon a final order of the
4 court directing that payment be made out of the Auctioneer
5 Recovery Fund, the board shall, subject to the provisions of
6 this part, make the payment out of to the Auctioneer Recovery
7 Fund as provided in s. 468.395.
8 Section 10. This act shall take effect July 1, 1998.
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11 HOUSE SUMMARY
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Amends various provisions of pt. VI, ch. 468, F.S.,
13 relating to auctioneers. Revises provisions relating to
the written examination required for licensure as an
14 auctioneer, to revise reference to the laws covered by
such examination and to eliminate the requirement that
15 the Department of Business and Professional Regulation
prepare and administer the examination. Eliminates
16 exemptions from the requirement that a written agreement
be executed prior to conducting an auction. Revises a
17 ground for disciplinary action relating to failure to
account for or to pay certain money, to include reference
18 to property belonging to another. Reduces the level at
which the Auctioneer Recovery Fund must be maintained and
19 for which surcharges are levied. Revises circumstances
under which recovery from the Auctioneer Recovery Fund
20 may be obtained. Reduces the amount per claim or claims
arising out of the same transaction or auction and the
21 aggregate lifetime limit with respect to any one licensee
that may be paid from the fund. Eliminates semiannual
22 identification and payment of claims, and provides for
payment of claims by order of the Florida Board of
23 Auctioneers. See bill for details.
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