House Bill 1987

CODING: Words stricken are deletions; words underlined are additions.







    Florida House of Representatives - 1999                HB 1987

        By Representatives Cantens and Tullis






  1                      A bill to be entitled

  2         An act relating to auctioneering; amending s.

  3         468.385, F.S.; revising requirements relating

  4         to the conduct, administration, approval, and

  5         scope of the examination for licensure as an

  6         auctioneer; amending s. 468.388, F.S.; deleting

  7         exceptions from a requirement that auctions be

  8         conducted pursuant to a written agreement;

  9         amending s. 468.389, F.S.; providing for

10         disciplinary action against licensees who fail

11         to account for certain property; providing

12         penalties; reenacting ss. 468.385(3)(b) and

13         468.391, F.S., relating to licensure as an

14         auctioneer and to a criminal penalty,

15         respectively, to incorporate the amendment to

16         s. 468.389, F.S., in references thereto;

17         amending s. 468.395, F.S.; revising conditions

18         of recovery from the Auctioneer Recovery Fund;

19         providing for recovery from the fund pursuant

20         to an order issued by the Florida Board of

21         Auctioneers; deleting a requirement that notice

22         be given to the board at the time action is

23         commenced; providing limitations on bringing

24         claims for certain acts; providing subrogation

25         rights for the fund; amending s. 468.397, F.S.,

26         relating to payment of claim; correcting

27         language; providing an effective date.

28

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

30

31

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 1987

    702-112-99






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

  2  Florida Statutes, are amended to read:

  3         468.385  Licenses required; qualifications;

  4  examination; bond.--

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

  6  shall pass a written examination approved by the board

  7  prepared and administered by the department which tests his or

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

  9  provisions of the Uniform Commercial Code that are relevant to

10  bulk sales, auctions, the laws of agency brokerage, and the

11  provisions of this act.

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

13  unless he or she:

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

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

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

17  instruction, that meets standards adopted by the board;

18         (b)  Has passed the required an examination conducted

19  by the department; and

20         (c)  Is approved by the board.

21         Section 2.  Section 468.388, Florida Statutes, is

22  amended to read:

23         468.388  Conduct of an auction.--

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

25  auctioneer or auction business shall execute a written

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

27  property to be offered for sale, stating:

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

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

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

31  and

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 1987

    702-112-99






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

  2  or auction business will receive the property for sale and

  3  remit the sales proceeds to the owner.

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

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

  6  years after the date of the auction.

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

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

  9  or similar place where the public regularly offers property

10  for sale;

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

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

13  business involving terms or conditions pertaining to the

14  property being offered for sale; and

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

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

17  $550, the written agreement required by subsection (1) shall

18  be executed after the sale.

19         (3)(4)  Each auctioneer or auction business shall

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

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

22  inspection by the board at reasonable times.

23         (4)(5)  Each auctioneer or auction business shall

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

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

26  participates.

27         (5)(6)  All advertising by an auctioneer or auction

28  business shall include the name and Florida license number of

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

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

31  other promotional novelty items.

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 1987

    702-112-99






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

  2  468.389, Florida Statutes, is amended to read:

  3         468.389  Prohibited acts; penalties.--

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

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

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

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

  8  belonging to another which has come into the control of an

  9  auctioneer or auction business through an auction.

10         Section 4.  For the purpose of incorporating the

11  amendment to section 468.389, Florida Statutes, in references

12  thereto, paragraph (b) of subsection (3) of section 468.385

13  and section 468.391, Florida Statutes, are reenacted to read:

14         468.385  Licenses required; qualifications;

15  examination; bond.--

16         (3)  No person shall be licensed as an auctioneer or

17  apprentice if he or she:

18         (b)  Has committed any act or offense in this state or

19  any other jurisdiction which would constitute a basis for

20  disciplinary action under s. 468.389.

21         468.391  Penalty.--Any auctioneer, apprentice, or

22  auction business or any owner or manager thereof, or, in the

23  case of corporate ownership, any substantial stockholder of

24  the corporation owning the auction business, who operates

25  without an active license or violates any provision of the

26  prohibited acts listed under s. 468.389 commits a felony of

27  the third degree, punishable as provided in s. 775.082 or s.

28  775.083.

29         Section 5.  Section 468.395, Florida Statutes, is

30  amended to read:

31         468.395  Conditions of recovery; eligibility.--

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 1987

    702-112-99






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

  2  obtained as follows:

  3         (a)  Any aggrieved person is eligible to receive

  4  recovery from the Auctioneer Recovery Fund if the Florida

  5  Board of Auctioneers has issued a final order directing an

  6  offending licensee to pay restitution to the claimant as the

  7  result of the licensee violating, within this state, any

  8  provision of s. 468.389 or any rule adopted by the board and

  9  if the board determined that the order of restitution cannot

10  be enforced; or

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

12  judgment in any court against any licensee to recover damages

13  for any actual loss that results from the violation, within

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

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

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

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

18  aggrieved person may, upon termination of all proceedings,

19  including appeals and proceedings supplemental to judgment for

20  collection purposes, file a verified application to the board

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

22  directing payment out of the Auctioneer Recovery Fund of the

23  amount of actual and direct loss in the transaction that

24  remains unpaid upon the judgment. Notwithstanding subsection

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

26  judgment was entered within 6 months of termination of all

27  proceedings, including appeals and proceedings supplemental to

28  judgment for collection purposes, shall be considered timely

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

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

31  damages awarded.

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 1987

    702-112-99






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

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

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

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

  5  licensee. For purposes of this subsection, auctions conducted

  6  under a single contract, agreement, or consignment shall be

  7  considered a single transaction or auction even though

  8  conducted at more than one time or place.

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

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

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

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

13  otherwise valid.

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

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

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

17  act is discovered or should have been discovered with the

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

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

20  act giving rise to the claim.

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

22  payment of a claim from the Auctioneer Recovery Fund unless

23  the claimant has reasonably established to for the board court

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

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

26  licensed auctioneer responsible for the loss and that any

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

28  claim on the Auctioneer Recovery Fund.

29         (5)  Notwithstanding any other provision of this part,

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

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

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 1987

    702-112-99






  1  payable submitted for payment to or payment from the

  2  Auctioneer Recovery Fund until after October 1, 1995.

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

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

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

  6  against any licensee with respect to the loss.

  7         Section 6.  Section 468.397, Florida Statutes, is

  8  amended to read:

  9         468.397  Payment of claim.--Upon a final order of the

10  court directing that payment be made out of the Auctioneer

11  Recovery Fund, the board shall, subject to the provisions of

12  this part, make the payment out of to the Auctioneer Recovery

13  Fund as provided in s. 468.395.

14         Section 7.  This act shall take effect July 1, 1999.

15

16            *****************************************

17                          HOUSE SUMMARY

18
      Allows the examination for licensure as an auctioneer to
19    be prepared and conducted by outside parties, if approved
      by the Florida Board of Auctioneers. Deletes exceptions
20    to the requirement that auctions be conducted pursuant to
      a written agreement. Provides that failure of an
21    auctioneer or auction business to account for property
      belonging to another which has come into its control
22    through an auction is a ground for disciplinary action
      and criminal penalties. Revises conditions of recovery
23    from the Auctioneer Recovery Fund, to provide for
      recovery from the fund pursuant to an order issued by the
24    board. Deletes the requirement that the board be notified
      at the time the action is commenced. Limits claims to
25    acts that occur within the state after a specified time.
      Provides for subrogation rights. See bill for details.
26

27

28

29

30

31

                                  7