House Bill 0665

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    Florida House of Representatives - 2000                 HB 665

        By Representative Greenstein






  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. 468.392, F.S.; authorizing the

18         designee of the Secretary of Business and

19         Professional Regulation to sign vouchers for

20         payment or disbursement from the Auctioneer

21         Recovery Fund; amending s. 468.395, F.S.;

22         revising conditions of recovery from the

23         Auctioneer Recovery Fund; providing for

24         recovery from the fund pursuant to an order

25         issued by the Florida Board of Auctioneers;

26         deleting a requirement that notice be given to

27         the board at the time action is commenced;

28         providing limitations on bringing claims for

29         certain acts; providing subrogation rights for

30         the fund; amending s. 468.397, F.S., relating

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  1         to payment of claim; correcting language;

  2         providing an effective date.

  3

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

  5

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

  7  Florida Statutes, are amended to read:

  8         468.385  Licenses required; qualifications;

  9  examination; bond.--

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

11  shall pass a written examination approved by the board

12  prepared and administered by the department which tests his or

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

14  provisions of the Uniform Commercial Code that are relevant to

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

16  provisions of this act.

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

18  unless he or she:

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

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

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

22  instruction, that meets standards adopted by the board;

23         (b)  Has passed the required an examination conducted

24  by the department; and

25         (c)  Is approved by the board.

26         Section 2.  Section 468.388, Florida Statutes, is

27  amended to read:

28         468.388  Conduct of an auction.--

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

30  auctioneer or auction business shall execute a written

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

  2  property to be offered for sale, stating:

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

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

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

  6  and

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

  8  or auction business will receive the property for sale and

  9  remit the sales proceeds to the owner.

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

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

12  years after the date of the auction.

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

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

15  or similar place where the public regularly offers property

16  for sale;

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

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

19  business involving terms or conditions pertaining to the

20  property being offered for sale; and

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

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

23  $550, the written agreement required by subsection (1) shall

24  be executed after the sale.

25         (3)(4)  Each auctioneer or auction business shall

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

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

28  inspection by the board at reasonable times.

29         (4)(5)  Each auctioneer or auction business shall

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

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

  2  participates.

  3         (5)(6)  All advertising by an auctioneer or auction

  4  business shall include the name and Florida license number of

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

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

  7  other promotional novelty items.

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

  9  468.389, Florida Statutes, is amended to read:

10         468.389  Prohibited acts; penalties.--

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

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

13         (c)  Failure to account for or to pay or return, within

14  a reasonable time not to exceed 30 days, money or property

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

16  auctioneer or auction business through an auction.

17         Section 4.  For the purpose of incorporating the

18  amendment to section 468.389, Florida Statutes, in references

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

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

21         468.385  Licenses required; qualifications;

22  examination; bond.--

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

24  apprentice if he or she:

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

26  any other jurisdiction which would constitute a basis for

27  disciplinary action under s. 468.389.

28         468.391  Penalty.--Any auctioneer, apprentice, or

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

30  case of corporate ownership, any substantial stockholder of

31  the corporation owning the auction business, who operates

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  1  without an active license or violates any provision of the

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

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

  4  775.083.

  5         Section 5.  Subsection (2) of section 468.392, Florida

  6  Statutes, is amended to read:

  7         468.392  Auctioneer Recovery Fund.--There is created

  8  the Auctioneer Recovery Fund as a separate account in the

  9  Professional Regulation Trust Fund.  The fund shall be

10  administered by the Florida Board of Auctioneers.

11         (2)  All payments and disbursements from the Auctioneer

12  Recovery Fund shall be made by the Treasurer upon a voucher

13  signed by the Secretary of Business and Professional

14  Regulation or the secretary's designee. Amounts transferred to

15  the Auctioneer Recovery Fund shall not be subject to any

16  limitation imposed by an appropriation act of the Legislature.

17         Section 6.  Section 468.395, Florida Statutes, is

18  amended to read:

19         468.395  Conditions of recovery; eligibility.--

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

21  obtained as follows:

22         (a)  Any aggrieved person is eligible to receive

23  recovery from the Auctioneer Recovery Fund if the Florida

24  Board of Auctioneers has issued a final order directing an

25  offending licensee to pay restitution to the claimant as the

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

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

28  if the board determined that the order of restitution cannot

29  be enforced; or

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

31  judgment in any court against any licensee to recover damages

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

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

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

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

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

  6  aggrieved person may, upon termination of all proceedings,

  7  including appeals and proceedings supplemental to judgment for

  8  collection purposes, file a verified application to the board

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

10  directing payment out of the Auctioneer Recovery Fund of the

11  amount of actual and direct loss in the transaction that

12  remains unpaid upon the judgment. Notwithstanding subsection

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

14  judgment was entered within 6 months of termination of all

15  proceedings, including appeals and proceedings supplemental to

16  judgment for collection purposes, shall be considered timely

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

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

19  damages awarded.

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

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

22  arising out of the same transaction or auction or and an

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

24  licensee. For purposes of this subsection, auctions conducted

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

26  considered a single transaction or auction even though

27  conducted at more than one time or place.

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

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

30  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 to 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 that occurred outside

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

21  payable submitted for payment to or payment from the

22  Auctioneer 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 7.  Section 468.397, Florida Statutes, is

28  amended to read:

29         468.397  Payment of claim.--Upon a final order of the

30  court directing that payment be made out of the Auctioneer

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

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

  2  Fund as provided in s. 468.395.

  3         Section 8.  This act shall take effect July 1, 2000.

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  6                          HOUSE SUMMARY

  7
      Allows the examination for licensure as an auctioneer to
  8    be prepared and conducted by outside parties, if approved
      by the Florida Board of Auctioneers. Deletes exceptions
  9    to the requirement that auctions be conducted pursuant to
      a written agreement. Provides that failure of an
10    auctioneer or auction business to account for property
      belonging to another which has come into its control
11    through an auction is a ground for disciplinary action
      and criminal penalties. Authorizes the designee of the
12    Secretary of Business and Professional Regulation to sign
      vouchers for payment or disbursement from the Auctioneer
13    Recovery Fund. Revises conditions of recovery from the
      Auctioneer Recovery Fund, to provide for recovery from
14    the fund pursuant to an order issued by the board.
      Deletes the requirement that the board be notified at the
15    time the action is commenced. Limits claims to acts that
      occur within the state after a specified time. Provides
16    for subrogation rights. See bill for details.

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