Senate Bill 1716

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    Florida Senate - 1999                                  SB 1716

    By Senator Gutman





    23-1152-99

  1                      A bill to be entitled

  2         An act relating to auctioneering; amending s.

  3         468.385, F.S.; providing for examination not

  4         prepared or administered by the Board of

  5         Auctioneers; amending s. 468.388, F.S.;

  6         deleting exceptions from a requirement that

  7         auctions be conducted pursuant to a written

  8         agreement; amending s. 468.389, F.S.; providing

  9         for disciplinary action against licensees who

10         fail to account for certain property; amending

11         s. 468.395, F.S.; revising provisions relating

12         to the Auctioneer Recovery Fund; providing for

13         recovery from the fund pursuant to an order

14         issued by the board; deleting a requirement

15         that notice be given to the board before

16         bringing certain suits; providing limitations

17         on bringing claims for certain acts; providing

18         subrogation rights for the fund; providing an

19         effective date.

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

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23         Section 1.  Subsections (4) and (6) of section 468.385,

24  Florida Statutes, are amended to read:

25         468.385  Licenses required; qualifications;

26  examination; bond.--

27         (4)  Any person seeking a license as an auctioneer must

28  shall pass a written examination approved by the board

29  prepared and administered by the department which tests his or

30  her general knowledge of the laws of this state relating to

31  provisions of the Uniform Commercial Code that are relevant to

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    Florida Senate - 1999                                  SB 1716
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  1  bulk sales, auctions, the laws of agency brokerage, and the

  2  provisions of this act.

  3         (6)  No person shall be licensed as an auctioneer

  4  unless he or she:

  5         (a)  Has held an apprentice license and has served as

  6  an apprentice for 1 year or more, or has completed a course of

  7  study, consisting of not less than 80 classroom hours of

  8  instruction, that meets standards adopted by the board;

  9         (b)  Has passed the required an examination conducted

10  by the department; and

11         (c)  Is approved by the board.

12         Section 2.  Section 468.388, Florida Statutes, is

13  amended to read:

14         468.388  Conduct of an auction.--

15         (1)  Prior to conducting an auction in this state, an

16  auctioneer or auction business shall execute a written

17  agreement with the owner, or the agent of the owner, of any

18  property to be offered for sale, stating:

19         (a)  The name and address of the owner of the property;

20         (b)  The name and address of the person employing the

21  auctioneer or auction business, if different from the owner;

22  and

23         (c)  The terms or conditions upon which the auctioneer

24  or auction business will receive the property for sale and

25  remit the sales proceeds to the owner.

26         (2)  The auctioneer or auction business shall give the

27  owner one copy of the agreement and shall keep one copy for 2

28  years after the date of the auction.

29         (3)  A written agreement shall not be required if:

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    Florida Senate - 1999                                  SB 1716
    23-1152-99




  1         (a)  The auction is to be conducted at an auction house

  2  or similar place where the public regularly offers property

  3  for sale;

  4         (b)  There has been no prior negotiation between the

  5  owner or the owner's agent and the auctioneer or auction

  6  business involving terms or conditions pertaining to the

  7  property being offered for sale; and

  8         (c)  The total estimated value of the property is $500

  9  or less.  If the actual sale price of the property exceeds

10  $550, the written agreement required by subsection (1) shall

11  be executed after the sale.

12         (3)(4)  Each auctioneer or auction business shall

13  maintain a record book of all sales for which a written

14  agreement is required.  The record book shall be open to

15  inspection by the board at reasonable times.

16         (4)(5)  Each auctioneer or auction business shall

17  prominently display his or her license, or make it otherwise

18  available for inspection, at each auction in which he or she

19  participates.

20         (5)(6)  All advertising by an auctioneer or auction

21  business shall include the name and Florida license number of

22  such auctioneer and auction business.  The term "advertising"

23  shall not include articles of clothing, directional signs, or

24  other promotional novelty items.

25         Section 3.  Paragraph (c) of subsection (1) of section

26  468.389, Florida Statutes, is amended to read:

27         468.389  Prohibited acts; penalties.--

28         (1)  The following acts shall be grounds for the

29  disciplinary activities provided in subsections (2) and (3):

30         (c)  Failure to account for or to pay, within a

31  reasonable time not to exceed 30 days, money or property

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    Florida Senate - 1999                                  SB 1716
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  1  belonging to another which has come into the control of an

  2  auctioneer or auction business through an auction.

  3         Section 4.  Section 468.395, Florida Statutes, is

  4  amended to read:

  5         468.395  Conditions of recovery; eligibility.--

  6         (1)  Recovery from the Auctioneer Recovery Fund may be

  7  obtained as follows:

  8         (a)  Any aggrieved person is eligible to receive

  9  recovery from the Auctioneer Recovery Fund if the Board of

10  Auctioneers has issued a final order directing an offending

11  licensee to pay restitution to the claimant as the result of

12  the licensee violating, within this state, any provision of s.

13  468.389 or any rule adopted by the board and if the board

14  determined that the order of restitution cannot be enforced;

15  or

16         (b)(1)  Any aggrieved person who obtains a final

17  judgment in any court against any licensee to recover damages

18  for any actual loss that results from the violation within

19  this state, by failure to meet the obligations of a licensee

20  of any provision of s. 468.389 or any rule under this part and

21  the rules adopted by the board, with or without findings by

22  the board, that results in an actual cash loss to the

23  aggrieved person may, upon termination of all proceedings,

24  including appeals and proceedings supplemental to judgment for

25  collection purposes, file a verified application to the board

26  in the court in which the judgment was entered for an order

27  directing payment out of the Auctioneer Recovery Fund of the

28  amount of actual and direct loss in the transaction that

29  remains unpaid upon the judgment. Notwithstanding subsection

30  (3), any application received by the court in which the

31  judgment was entered within 6 months of termination of all

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    Florida Senate - 1999                                  SB 1716
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  1  proceedings, including appeals and proceedings supplemental to

  2  judgment for collection purposes, shall be considered timely

  3  filed. The amount of actual and direct loss may include court

  4  costs, but shall not include attorney's fees or punitive

  5  damages awarded.

  6         (2)  The amount paid from the Auctioneer Recovery Fund

  7  may not exceed $50,000 per claim judgment or claims judgments

  8  arising out of the same transaction or auction nor and an

  9  aggregate lifetime limit of $100,000 with respect to any one

10  licensee.

11         (2)  At the time the action is commenced, such person

12  shall give notice thereof to the board by certified mail,

13  except that, if no notice is given to the board, the claim may

14  still be honored if, in the opinion of the board, the claim is

15  otherwise valid.

16         (3)  A claim for recovery from the Auctioneer Recovery

17  Fund shall be made within 2 years from the time of the act

18  giving rise to the claim or within 2 years from the time the

19  act is discovered or should have been discovered with the

20  exercise of due diligence; however, in no event may a claim

21  for recovery be made more than 4 years after the date of the

22  act giving rise to the claim.

23         (4)  The board court shall not issue an order for

24  payment of a claim from the Auctioneer Recovery Fund unless

25  the claimant has reasonably established to for the board court

26  that she or he has taken proper and reasonable action to

27  collect the amount of her or his claim from the licensee

28  licensed auctioneer responsible for the loss and that any

29  recovery made has been applied to reduce the amount of the

30  claim on the Auctioneer Recovery Fund.

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    Florida Senate - 1999                                  SB 1716
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  1         (5)  Notwithstanding any other provision of this part,

  2  no claim based on any act or omission that occurred outside

  3  this state or that occurred before October 1, 1991, shall be

  4  payable submitted for payment to or payment from the

  5  Auctioneer Recovery Fund until after October 1, 1995.

  6         (6)  In case of payment of loss from the Auctioneer

  7  Recovery Fund, the fund shall be subrogated, to the extent of

  8  the amount of the payment, to all the rights of the claimant

  9  against any licensee with respect to the loss.

10         Section 5.  This act shall take effect July 1, 1999.

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13                          SENATE SUMMARY

14    Revises provisions related to auctioneering and the
      Auctioneer Recovery Fund. Allows examinations to be given
15    by outside parties. Deletes exemptions to the requirement
      that auctions be conducted pursuant to a written
16    agreement. Provides additional grounds for disciplinary
      action. Allows recovery from the fund pursuant to an
17    order issued by the board. Deletes a notice requirement
      prior to filing suit. Limits claims to acts that occur
18    within the state after a specified time. Provides for
      subrogation rights. (See bill for details.)
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