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.

  7

  8  Be It Enacted by the Legislature of the State of Florida:

  9

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.

  9

10            *****************************************

11                          HOUSE SUMMARY

12
      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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