Pennsylvania Act 2008-89 — AUCTIONEER AND AUCTION LICENSING ACT - AUCTIONEER AND APPRENTICE AUCTIONEER LICENSES

Act text

AUCTIONEER AND AUCTION LICENSING ACT - AUCTIONEER AND APPRENTICE
                           AUCTIONEER LICENSES
                  Act of Oct. 8, 2008, P.L. 1080, No. 89              Cl. 63
                             Session of 2008
                               No. 2008-89

     SB 908

                                  AN ACT

     Amending the act of December 22, 1983 (P.L.327, No.85), entitled
        "An act imposing regulations and licensing requirements on
        auctioneers, apprentice auctioneers, auction houses and
        auction companies; imposing powers and duties on the State
        Board of Auctioneer Examiners; and making repeals," further
        providing for auctioneer and apprentice auctioneer licenses.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  The title and section 1 of the act of December
     22, 1983 (P.L.327, No.85), known as the Auctioneer and Auction
     Licensing Act, are amended to read:
                                  AN ACT
     Imposing regulations and licensing requirements on auctioneers,
        apprentice auctioneers, auction houses [and], auction
        companies and trading assistants; imposing powers and duties
        on the State Board of Auctioneer Examiners; and making
        repeals.
      Section 1.  Short title.
        This act shall be known and may be cited as the Auctioneer
     [and Auction] Licensing and Trading Assistant Registration Act.
        Section 2.  The definitions of "auction" or "sale at auction"
     and "person" in section 2 of the act are amended and the section
     is amended by adding definitions to read:
      Section 2.  Definitions.
        The following words and phrases when used in this act shall
     have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        * * *
        "Auction" or "sale at auction."  The offer to sell property
     by an auctioneer or apprentice auctioneer to the members of an
     audience congregated for the purpose of making bids for the
     purchase of the property in an effort by the auctioneer or
     apprentice auctioneer to advance the amount of the bids to
     obtain the highest or most favorable offer. The term "auction"
     or "sale at auction" excludes any sale conducted through an
     online Internet bidding platform.
        * * *
        "Online Internet bidding platform."  Hardware or software
     architecture that provides or enables computer access by
     multiple users to an interactive computer server for the purpose
     of allowing users to offer property for sale and that does not
     examine, set the price or prepare the description of the
     property to be offered.
        "Person."  An individual, partnership, association [or],
     corporation, limited liability company or other entity.
        * * *
        "Registrant."  A person registered under this act as a
     trading assistant.
        "Trading assistant."  An individual who, for a commission or
     fee, conducts or intends to conduct a business within this
     Commonwealth of accepting personal property to sell on behalf of
     another through an online Internet bidding platform.
        Section 3.  Section 3(a) of the act is amended to read:
      Section 3.  Auctioneer and apprentice auctioneer licenses.
        (a)  Requirement for license.--[It] Notwithstanding section
     10.1, it is unlawful for any person to engage in or carry on the
     profession of auctioneer, to conduct a sale at auction, to hold
     himself out as an auctioneer or as an apprentice auctioneer or
     to offer to conduct sales at auction in this Commonwealth
     without first obtaining from the board a license as an
     auctioneer or apprentice auctioneer. Any member, officer or
     employee of a partnership, association or corporation who
     attempts to sell at auction or who is actively engaged in the
     auction profession must have a license as an auctioneer or
     apprentice auctioneer.
        * * *
        Section 4.  Section 5 of the act is amended by adding a
     subsection to read:
      Section 5.  Applications for initial and renewal licenses.
        * * *
        (f)  Internet sales.--An applicant or licensee renewing a
     license under this section must indicate to the board whether or
     not sales will be conducted via an online Internet bidding
     platform.
        Section 5.  The act is amended by adding a section to read:
      Section 10.1.  Trading assistant registration.
        (a)  Requirement for registration.--It shall be unlawful for
     any individual to act as a trading assistant for a sale
     conducted by competitive bidding without either first
     registering with or obtaining licensure from the board.
     Registration is required on a biennial basis.
        (b)  Application.--Application for registration under this
     section shall include the following:
            (1)  Name of the applicant, the business and the physical
        location where the business will be conducted.
            (2)  Date the applicant will begin accepting goods for
        sale through an online Internet bidding platform.
            (3)  Pennsylvania tax identification number.
            (4)  E-mail address.
        (c)  Fee.--A registration fee of $100 shall be included with
     each application for registration.
        Section 6.  Sections 13, 14, 15, 16, 17, 21, 26, 27, 28, 29
     and 31(a) of the act are amended to read:
      Section 13.  Licensee and registrant to furnish bond.
        (a)  General rule.--An auctioneer, apprentice auctioneer,
     auction company or auction house license or trading assistant
     registration shall not be granted or issued to any [individual,
     partnership, association or corporation] person until the
     applicant has filed with the board an approved bond payable to
     the Commonwealth in the amount of $5,000. The bond shall be
     executed by a surety company authorized by the laws of this
     Commonwealth to transact business in this Commonwealth. The bond
     shall be for the use of the Commonwealth and for any person or
     persons who may have a cause of action against a licensee or
     registrant under this act.
        (b)  Conditions of bond.--The condition of the bond shall be
     that the licensee or registrant will comply with and abide by
     the provisions of this act and will pay to the Commonwealth, the
     board or any person or persons any and all money that may come
     due the Commonwealth, the board or the person or persons from a
     licensee or registrant under and by virtue of this act.
        (c)  Action on bond.--If any person is aggrieved by the
     misconduct of any licensee or registrant and recovers judgment
     against the licensee or registrant therefor, the person may, on
     any execution issued under the judgment, maintain an action upon
     the bond of the licensee or registrant in any court having
     jurisdiction of the amount claimed.
      Section 14.  No other license or registration required.
        No political subdivision of this Commonwealth shall have the
     power or authority to levy or collect any license tax or fee
     which is either a regulatory or a revenue measure upon or from
     any auctioneer or apprentice auctioneer [licensed] or trading
     assistant licensed or registered under this act nor to require
     any auctioneer or apprentice auctioneer to be licensed by the
     political subdivision in order to carry on the business of
     auctioneer or to conduct a sale at auction.
      Section 15.  List of licensees[.] and registrants.
        The board shall maintain a current list of [the individuals,
     partnerships, associations and corporations] any person licensed
     by or registered with the board. The list shall be posted on the
     department's Internet website and [be open to public inspection
     during the business hours of the department. Copies of the list
     are to be available to the public at cost.] shall be subject to
     the act of February 14, 2008 (P.L.6, No.3), known as the Right-
     to-Know Law.
      Section 16.  Records of sales.
        (a)  General rule.--Every auctioneer or trading assistant,
     whether acting in his own behalf or as the officer, agent or
     representative of another, after the receipt or acceptance by
     him of any property for sale at auction or sale through an
     online Internet bidding platform, shall maintain a written
     record which shall contain the following information:
            (1)  The name and address of the person who employed him
        to conduct the [sale at auction] transaction and of the
        owner, the owner's authorized agent or consignor of the
        property to be sold [at auction].
            (2)  A copy of the written contract authorizing the [sale
        at auction] transaction containing the terms and conditions
        of the [auctioneer's employment] transaction or a copy of the
        receiving invoice.
            (3)  A written record of the [sale at auction]
        transaction.
        (b)  Inspection of records.--The records referred to in
     subsection (a) shall be open at all reasonable times for
     inspection by the board or any person who is authorized in
     writing for that purpose by the board and who exhibits the
     written authorization to the auctioneer or trading assistant
     before making an inspection.
        (c)  Retention of records.--The written records shall be kept
     on file in the office of the auctioneer or trading assistant for
     a period of at least two years and, if the auctioneer or trading
     assistant is notified of a complaint against him, the records
     shall be maintained by the auctioneer or trading assistant until
     the complaint is finally resolved.
        (d)  Receipts.--Every auctioneer or trading assistant must
     provide a written receipt for all transactions. A receipt may be
     provided electronically. Receipts must be retained for at least
     two years.
      Section 17.  Contracts for conduct of [sale] transaction.
        (a)  General rule.--Prior to conducting [an auction sale] a
     transaction, an auctioneer or trading assistant shall enter into
     a written contract, in duplicate, with the owner or consignor of
     the property to be sold, containing the terms and conditions
     upon which the licensee or registrant agrees to conduct the
     [auction] sale. The contract may be entered into electronically.
     The contracts shall be kept on file in the office of the
     auctioneer or trading assistant and shall be open to inspection
     as provided in this act. It is unlawful for a person to
     advertise an auction or sale at auction or a sale through an
     online Internet bidding platform without including in the
     advertisement or notice of sale the name and license number of
     the auctioneer, auction house or auction company or the
     registration number of the trading assistant conducting the
     [sale] transaction.
        (b)  Penalty.--A person who violates subsection (a) commits a
     summary offense and shall, upon conviction, be sentenced to pay
     a fine not less than $50.
      Section 21.  Escrow account.
        Every auctioneer and registrant shall immediately deposit
     moneys, received from the sale of property, belonging to others
     in a separate custodial or trust fund account maintained by the
     auctioneer or trading assistant until the transaction involved
     is terminated, at which time the auctioneer or trading assistant
     shall account for the full amount received.
      Section 26.  Revocation or suspension of license or
                    registration.
        (a)  Revocation or suspension of license or registration for
     committing crime.--Where, during the term of any license or
     registration issued by the board, the licensee or registrant is
     convicted in a court of competent jurisdiction in this or any
     other state of forgery, embezzlement, obtaining money under
     false pretenses, extortion, criminal conspiracy to defraud or
     other like offense and a duly certified or exemplified copy of
     the record in the proceeding is filed with the board, the board
     shall revoke or suspend the license issued to the licensee or
     registration issued to the registrant.
        (b)  Suspension of license or registration pending trial of
     crime.--In the event any licensee or registrant is indicted in
     this or any other state of forgery, embezzlement, obtaining
     money under false pretenses, extortion, criminal conspiracy to
     defraud or other offense or offenses and a certified copy of the
     indictment is filed with the board or other proper evidence is
     given to it, the board may, in its discretion, suspend the
     license issued to the licensee or registration issued to the
     registrant pending trial of the charges.
        (c)  Revocation of license of entity for violation by member
     or officer.--In the event of the revocation or suspension of the
     license issued to any member of a partnership or to any officer
     of an association or corporation, the license issued to the
     partnership, association or corporation shall be revoked by the
     board unless, within a time fixed by the board, the connection
     of the member of the partnership is severed and his interest in
     the partnership and his share in its activities brought to an
     end or the officer of the association or corporation is
     discharged and has no further participation in its activities.
      Section 27.  Issuance of new license or registration pending
                    investigation and decision.
        Pending an investigation or proceeding before the board
     affecting any licensee or registrant and pending final decision
     upon any appeal taken by a licensee or registrant from the
     ruling of the board, no new registration may be issued or
     license may be issued to a licensee or to a partnership of which
     he is a member or employee or to an association or corporation
     of which he is an officer or employee except for the period of
     the investigation or proceeding and subject to the action of the
     board.
      Section 28.  Issuance of new license or registration after
                    revocation.
        (a)  General rule.--After the revocation of any license or
     registration, no new license or registration may be issued to
     the same licensee or registrant within a period of at least one
     year from the date of the revocation nor, except in the sole
     discretion of the board and subject to the conditions of this
     act, at any time thereafter.
        (b)  Criminal conduct.--No license or registration shall be
     issued by the board to any person known by it to have been,
     within five years, convicted of forgery, embezzlement, obtaining
     money under false pretenses, extortion, criminal conspiracy to
     defraud or other like offense, or to any copartnership of which
     any person is a member or to any association or corporation of
     which any person is an officer or employee or in which as a
     stockholder any person has or exercises a controlling interest
     either directly or indirectly.
      Section 29.  Penalties.
        (a)  Criminal penalties.--Any [individual, partnership,
     association or corporation] person who engages in or carries on
     the profession or acts in the capacity of an auctioneer,
     apprentice auctioneer, auction house [or], auction company or
     trading assistant in this Commonwealth without a current license
     or registration or who employs any person without a current
     license as an apprentice auctioneer:
            (1)  For a first offense, commits a summary offense and
        shall, upon conviction, be sentenced to pay a fine not
        exceeding $500 or to imprisonment not exceeding three months,
        or both.
            (2)  For a second or subsequent offense, commits a
        misdemeanor of the third degree and shall, upon conviction,
        be sentenced to pay a fine of not less than $2,000 but not
        more than $5,000 or to imprisonment for not less than one
        year but not more than two years, or both.
        (b)  Civil penalty.--In addition to any other civil remedy or
     criminal penalty provided for in this act, the board, by a vote
     of the majority of the maximum number of the authorized
     membership of the board as provided by law or by a vote of the
     majority of the duly qualified and confirmed membership or a
     minimum of four members, whichever is greater, may levy a civil
     penalty of up to $1,000 on any person who engages in the
     practice of auctioneering without being properly licensed to do
     so under this act. The board shall levy this penalty only after
     affording the accused party the opportunity for a hearing, as
     provided in Title 2 of the Pennsylvania Consolidated Statutes
     (relating to administrative law and procedure).
        (c)  Failure to register.--Any individual who fails to
     register under section 10.1 may be subject to a penalty of up to
     $500 levied by the commissioner. The individual may request a
     hearing before the board, which shall be conducted in accordance
     with 2 Pa.C.S.
      Section 31.  State Board of Auctioneer Examiners.
        (a)  Representation.--The State Board of Auctioneer Examiners
     shall consist of the Commissioner of Professional and
     Occupational Affairs, the Director of the Bureau of Consumer
     Protection in the Office of Attorney General, or his designee,
     two members appointed by the Governor with the advice and
     consent of the Senate, who shall be persons representing the
     public at large, [and five] one member appointed by the Governor
     with the advice and consent of the Senate, who shall be a
     registered trading assistant, and four members appointed by the
     Governor with the advice and consent of the Senate, who shall be
     licensed auctioneers, have served as licensed auctioneers for
     ten years or more and have conducted at least 50 auctions each
     year.
        * * *
        Section 7.  The board shall not promulgate regulations
     pertaining to section 10.1 of the act and registrations pursuant
     to section 10.1 of the act shall be accepted by the board upon
     the effective date of this section.
        Section 8.  This act shall take effect in 60 days.

     APPROVED--The 8th day of October, A. D. 2008.

     EDWARD G. RENDELL