History.--ss. 1, 14, ch. 86-119; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 4, ch. 91-429.

(1)  "Auction business" means a sole proprietorship, partnership, or corporation which in the regular course of business arranges, manages, sponsors, advertises, promotes, or carries out auctions, employs auctioneers to conduct auctions in its facilities, or uses or allows the use of its facilities for auctions.

(2)  "Auctioneer" means any person licensed pursuant to this part who holds a valid Florida auctioneer license.

(3)  "Apprentice" means any person who is being trained as an auctioneer by a licensed auctioneer.

(4)  "Board" means the Florida Board of Auctioneers.

(5)  "Department" means the Department of Business and Professional Regulation.

(6)  "Livestock" means any animal included in the definition of "livestock" by s. 585.01 or s. 588.13.

(7)  "Agricultural product" means the natural products from a farm, nursery, grove, orchard, vineyard, garden, or apiary, including livestock, tobacco, and vegetables and includes those agricultural products as defined in chapter 618.

(8)  "Absolute auction" means an auction that requires no minimum opening bid that limits the sale other than to the highest bidder.

History.--ss. 2, 14, ch. 86-119; s. 66, ch. 90-321; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 1, ch. 91-207; s. 4, ch. 91-429; s. 5, ch. 92-206; s. 3, ch. 92-291; s. 136, ch. 94-218; s. 10, ch. 2000-356.

(1)  Auctions conducted by the owner, or the owner's attorney, of any part of the property being offered, unless the owner acquired the goods to resell.

(2)  Auctions conducted under a judicial or an administrative order, or sales required by law to be at auction.

(3)  Auctions conducted by a charitable, civic, or religious organization, or for such organization by a person who receives no compensation.

(4)  Auctions of livestock if conducted by a person who specializes in the sale of livestock and the auction is conducted under the supervision of a livestock trade association, a governmental agency, or an owner of the livestock. The act does not apply to the auction of agricultural products as defined in s. 618.01(1) or the equipment or tools used to produce or market such products, if the auction is conducted at a farm or ranch where the products are produced or where the equipment and tools are used or at an auction facility that sells primarily agricultural products.

(5)  Auctions conducted by a trustee pursuant to a power of sale contained in a deed of trust on real property.

(6)  Auctions of collateral, sales conducted to enforce carriers' or warehousemen's liens, sales of the contents of self-contained storage units, bulk sales, sales of goods by a presenting bank following dishonor of a documentary draft, resales of rightfully rejected goods, or resales conducted pursuant to law, if the auction is conducted by the owner or agent of the lien on or interest in such goods.

(7)  Auctions conducted as a part of the sale of real property by a real estate broker, as defined in s. 475.01(1)(a).

(8)  Auctions of motor vehicles among motor vehicle dealers if conducted by an auctioneer.

(9)  Auctions conducted by a person enrolled in a class at an approved school of auctioneering, for the purpose of training and receiving instruction, under the direct supervision of an auctioneer who is also an instructor in the school and who further assumes full and complete responsibility for the activities of the student.

History.--ss. 3, 14, ch. 86-119; s. 1, ch. 87-210; s. 67, ch. 90-321; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 2, ch. 91-207; s. 4, ch. 91-429; s. 199, ch. 94-119; s. 5, ch. 97-42; s. 298, ch. 97-103.

(1)  There is created in the department the Florida Board of Auctioneers. The board shall be composed of five members appointed by the Governor and confirmed by the Senate, two of whom shall have been actively and principally engaged as auctioneers for a period of not less than 5 years preceding their appointment, one of whom shall be a principal of an auction company, and two of whom shall be laypersons. Members shall serve for terms of 4 years.

(2)  The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this act conferring duties upon it.

(3)  The board shall receive and act upon applications for auctioneer, apprentice, and auction business licenses and shall have the power to issue, suspend, and revoke such licenses and to take such other action as is necessary to carry out the provisions of this act.

History.--ss. 4, 11, 14, ch. 86-119; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 4, ch. 91-429; s. 47, ch. 92-149; s. 137, ch. 94-218; s. 134, ch. 98-200.

(1)  The department shall license any applicant who the board certifies is qualified to practice auctioneering.

(2)  No person shall auction or offer to auction any property in this state unless he or she is licensed by the department or is exempt from licensure under this act.

(3)  No person shall be licensed as an auctioneer or apprentice if he or she:

(a)  Is under 18 years of age; or

(b)  Has committed any act or offense in this state or any other jurisdiction which would constitute a basis for disciplinary action under s. 468.389.

(4)  Any person seeking a license as an auctioneer must pass a written examination approved by the board which tests his or her general knowledge of the laws of this state relating to provisions of the Uniform Commercial Code that are relevant to auctions, the laws of agency, and the provisions of this act.

(5)  Each apprentice application and license shall name a licensed auctioneer who has agreed to serve as the supervisor of the apprentice. No apprentice may conduct, or contract to conduct, an auction without the express approval of his or her supervisor. The supervisor shall regularly review the apprentice's records, which are required by the board to be maintained, to determine if such records are accurate and current.

(6)  No person shall be licensed as an auctioneer unless he or she:

(a)  Has held an apprentice license and has served as an apprentice for 1 year or more, or has completed a course of study, consisting of not less than 80 classroom hours of instruction, that meets standards adopted by the board;

(b)  Has passed the required examination; and

(c)  Is approved by the board.

(7)(a)  Any auction that is subject to the provisions of this part must be conducted by an auctioneer who has an active license or an apprentice who has an active apprentice auctioneer license and who has received prior written sponsor consent.

(b)  No business shall auction or offer to auction any property in this state unless it is licensed as an auction business by the board or is exempt from licensure under this act. Each application for licensure shall include the names of the owner and the business, the business mailing address and location, and any other information which the board may require. The owner of an auction business shall report to the board within 30 days of any change in this required information.

(8)  A license issued by the department to an auctioneer, apprentice, or auction business is not transferable.

History.--ss. 5, 14, ch. 86-119; s. 3, ch. 87-210; s. 62, ch. 91-137; s. 11, ch. 91-156; ss. 3, 16, ch. 91-207; s. 4, ch. 91-429; s. 17, ch. 94-119; s. 138, ch. 94-218; s. 11, ch. 97-94; s. 299, ch. 97-103; ss. 11, 15, ch. 2000-356.

(1)  The department shall renew a license upon receipt of the renewal application and fee.

(2)  The department shall adopt rules establishing a procedure for the biennial renewal of licenses.

History.--ss. 4, 9, ch. 87-210; ss. 62, 65, ch. 91-137; ss. 11, 12, ch. 91-156; s. 4, ch. 91-429; s. 200, ch. 94-119.

History.--ss. 5, 9, ch. 87-210; s. 41, ch. 89-162; ss. 62, 65, ch. 91-137; ss. 11, 12, ch. 91-156; s. 4, ch. 91-429; s. 201, ch. 94-119.

(1)  An auctioneer may not sponsor more than three apprentices at one time. Any auctioneer who serves as a sponsor must have held an active, valid license for 3 consecutive years preceding the date on which that auctioneer is named as sponsor of the apprentice.

(2)  Any auctioneer who undertakes the sponsorship of an apprentice shall ensure that the apprentice receives training as required by board rule.

(3)  An apprentice must actively participate in auction sales as required by board rule, and a record of each auction for which participation credit is claimed must be made as required by board rule.

(4)  Apprentices are prohibited from conducting any auction without the prior express written consent of the sponsor. The apprentice's sponsor must be present at the auction site at any time the apprentice is actively participating in the conduct of the auction. If the apprentice's sponsor cannot attend a particular auction, the sponsor may appoint a qualified auctioneer who meets the requirements of board rule to attend the auction in his or her place. Prior written consent must be given by the apprentice's sponsor for each substitution.

(5)  Each apprentice and sponsor shall file reports as required by board rule.

(6)  A sponsor may not authorize an apprentice to conduct an auction or act as principal auctioneer unless the sponsor has determined that the apprentice has received adequate training to do so.

(7)  The sponsor shall be responsible for any acts or omissions of the apprentice which constitute a violation of law in relation to the conduct of an auction.

(8)  All apprentice applications shall be valid for a period of 6 months after board approval. Any applicant who fails to complete the licensure process within that time shall be required to make application as a new applicant.

(9)  Any licensed apprentice who wishes to change the sponsor under whom he or she is licensed must submit a new application and application fee. However, a new license fee shall not be required and credit shall be awarded for training received or any period of apprenticeship served under the previous sponsor.

(10)  Credit for training received or any period of apprenticeship served shall not be allowed unless it occurred under the supervision of the sponsor under whose supervision the apprentice is licensed.

History.--s. 12, ch. 2000-356.

(1)  The board by rule may establish application, examination, licensure, renewal, and other reasonable and necessary fees, based upon the department's estimate of the costs to the board in administering this act.

(2)  An auctioneer shall obtain a local occupational license, if required, in the jurisdiction in which his or her permanent business or branch office is located. However, no local government or local agency may charge any other fee for the practice of auctioneering or require any auctioneer's license in addition to the license required by this part.

History.--ss. 6, 14, ch. 86-119; s. 6, ch. 87-210; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 4, ch. 91-429; s. 300, ch. 97-103.

History.--ss. 7, 14, ch. 86-119; s. 7, ch. 87-210; s. 62, ch. 91-137; s. 11, ch. 91-156; ss. 4, 16, ch. 91-207; s. 4, ch. 91-429; s. 18, ch. 94-119; s. 11, ch. 97-94; s. 301, ch. 97-103.

(1)  Prior to conducting an auction in this state, an auctioneer or auction business shall execute a written agreement with the owner, or the agent of the owner, of any property to be offered for sale, stating:

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

(b)  The name and address of the person employing the auctioneer or auction business, if different from the owner; and

(c)  The terms or conditions upon which the auctioneer or auction business will receive the property for sale and remit the sales proceeds to the owner.

(2)  The auctioneer or auction business shall give the owner one copy of the agreement and shall keep one copy for 2 years after the date of the auction.

(3)  Each auctioneer or auction business shall maintain a record book of all sales. The record book shall be open to inspection by the board at reasonable times.

(4)  Each auction must be conducted by an auctioneer who has an active license or by an apprentice who has an active apprentice auctioneer license and who has received prior written sponsor consent. Each auction must be conducted under the auspices of a licensed auction business. Any auctioneer or apprentice auctioneer conducting an auction, and any auction business under whose auspices such auction is held, shall be responsible for determining that any auctioneer, apprentice, or auction business with whom they are associated in conducting such auction has an active Florida auctioneer, apprentice, or auction business license.

(5)  The principal auctioneer shall prominently display at the auction site the licenses of the principal auctioneer, the auction business, and any other licensed auctioneers or apprentices who are actively participating in the auction. If such a display is not practicable, then an oral announcement at the beginning of the auction or a prominent written announcement that these licenses are available for inspection at the auction site must be made.

(6)  If a buyer premium or any surcharge is a condition to sale at any auction, the amount of the premium or surcharge must be announced at the beginning of the auction and a written notice of this information must be conspicuously displayed or distributed to the public at the auction site.

(7)  At the beginning of an auction must be announced the terms of bidding and sale and whether the sale is with reserve, without reserve, or absolute or if a minimum bid is required. If the sale is absolute and has been announced or advertised as such, an article or lot may not be withdrawn from sale once a bid has been accepted. If no bid is received within a reasonable time, the item or lot may be withdrawn.

(8)  If an auction has been advertised as absolute, no bid shall be accepted from the owner of the property or from someone acting on behalf of the owner unless the right to bid is specifically permitted by law.

(9)  The auction business under which the auction is conducted is responsible for all other aspects of the auction as required by board rule. The auction business may delegate in whole, or in part, different aspects of the auction only to the extent that such delegation is permitted by law and that such delegation will not impede the principal auctioneer's ability to ensure the proper conduct of his or her independent responsibility for the auction. The auction business under whose auspices the auction is conducted is responsible for ensuring compliance as required by board rule.

(10)(a)  When settlement is not made immediately after an auction, all sale proceeds received for another person must be deposited in an escrow or trust account in an insured bank or savings and loan association located in this state within 2 working days after the auction. A maximum of $100 may be kept in the escrow account for administrative purposes.

(b)  Each auction business shall maintain, for not less than 2 years, a separate ledger showing the funds held for another person deposited and disbursed by the auction business for each auction. The escrow or trust account must be reconciled monthly with the bank statement. A signed and dated record shall be maintained for a 2-year period and be available for inspection by the department or at the request of the board.

(c)  Any interest which accrues to sale proceeds on deposit shall be the property of the seller for whom the funds were received unless the parties have agreed otherwise by written agreement executed prior to the auction.

(d)  Unless otherwise provided by written agreement executed prior to the auction, funds received by a licensee from the seller or his or her agent for expenses, including advertising, must be expended for the purposes advanced or refunded to the seller at the time of final settlement. Any funds so received shall be maintained in an escrow or trust account in an insured bank or savings and loan association located in this state. However, this does not prohibit advanced payment of a flat fee.

(11)(a)  All advertising by an auctioneer or auction business shall include the name and Florida license number of such auctioneer and auction business. The term "advertising" shall not include articles of clothing, directional signs, or other promotional novelty items.

(b)  No licensed auctioneer, apprentice, or auction business may disseminate or cause to be disseminated any advertisement or advertising which is false, deceptive, misleading, or untruthful. Any advertisement or advertising shall be deemed to be false, deceptive, misleading, or untruthful if it:

1.  Contains misrepresentations of facts.

2.  Is misleading or deceptive because, in its content or in the context in which it is presented, it makes only a partial disclosure of relevant facts.

3.  Creates false or unjustified expectations of the services to be performed.

4.  Contains any representation or claim which the advertising licensee fails to perform.

5.  Fails to include the name and license number of the principal auctioneer and the auction business.

6.  Fails to include the name and license number of the sponsor if an apprentice is acting as the principal auctioneer.

7.  Advertises an auction as absolute without specifying any and all items to be sold with reserve or with minimum bids.

8.  Fails to include the percentage amount of any buyer's premium or surcharge which is a condition to sale.

(c)  The provisions of this subsection apply to media exposure of any nature, regardless of whether it is in the form of paid advertising.

(d)  The auction business shall be responsible for the content of all advertising disseminated in preparation for an auction.

History.--ss. 8, 14, ch. 86-119; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 5, ch. 91-207; s. 4, ch. 91-429; s. 302, ch. 97-103; s. 13, ch. 2000-356.

(1)  The following acts shall be grounds for the disciplinary activities provided in subsections (2) and (3):

(a)  A violation of any law relating to trade or commerce of this state or of the state in which an auction is conducted.

(b)  Misrepresentation of property for sale at auction or making false promises concerning the use, value, or condition of such property by an auctioneer or auction business or by anyone acting as an agent of or with the consent of the auctioneer or auction business.

(c)  Failure to account for or to pay or return, within a reasonable time not to exceed 30 days, money or property belonging to another which has come into the control of an auctioneer or auction business through an auction.

(d)  False, deceptive, misleading, or untruthful advertising.

(e)  Any conduct in connection with a sales transaction which demonstrates bad faith or dishonesty.

(f)  Using or permitting the use of false bidders, cappers, or shills.

(g)  Making any material false statement on a license application.

(h)  Commingling money or property of another person with his or her own. Every auctioneer and auction business shall maintain a separate trust or escrow account in an insured bank or savings and loan association located in this state in which shall be deposited all proceeds received for another person through an auction sale.

(i)  Refusal or neglect of any auctioneer or other receiver of public moneys to pay the moneys so received into the State Treasury at the times and under the regulations prescribed by law.

(j)  Violating a statute or administrative rule regulating practice under this part or a lawful disciplinary order of the board or the department.

(k)  Having a license to practice a comparable profession revoked, suspended, or otherwise acted against by another state, territory, or country.

(l)  Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice or the ability to practice the profession of auctioneering.

(2)  When the board finds any person guilty of any of the prohibited acts set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

(a)  Refusal to certify to the department an application for licensure.

(b)  Revocation or suspension of a license.

(c)  Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

(d)  Issuance of a reprimand.

(e)  Placement of the auctioneer on probation for a period of time and subject to conditions as the board may specify, including requiring the auctioneer to successfully complete the licensure examination.

(f)  Requirement that the person in violation make restitution to each consumer affected by that violation. Proof of such restitution shall be a signed and notarized release executed by the consumer or the consumer's estate.

(3)(a)  Failure to pay a fine within a reasonable time, as prescribed by board rule, may be grounds for disciplinary action.

(b)  The department may file for an injunction or bring any other appropriate civil action against anyone who violates this part.

History.--ss. 9, 14, ch. 86-119, s. 8, ch. 87-210; s. 62, ch. 91-137; s. 11, ch. 91-156; ss. 6, 16, ch. 91-207; s. 4, ch. 91-429; s. 19, ch. 94-119; s. 11, ch. 97-94; s. 303, ch. 97-103; s. 14, ch. 2000-356.

History.--ss. 12, 14, ch. 86-119; s. 62, ch. 91-137; s. 11, ch. 91-156; s. 7, ch. 91-207; s. 4, ch. 91-429; s. 15, ch. 2000-356.

(1)  The Chief Financial Officer shall invest the money not currently needed to meet the obligations of the fund in the same manner as other public funds may be invested. Interest that accrues from these investments shall be deposited to the credit of the Auctioneer Recovery Fund and shall be available for the same purposes as other moneys deposited in the Auctioneer Recovery Fund.

(2)  All payments and disbursements from the Auctioneer Recovery Fund shall be made by the Chief Financial Officer upon a voucher signed by the Secretary of Business and Professional Regulation or the secretary's designee.

(3)  If at any time the moneys in the Auctioneer Recovery Fund are insufficient to satisfy any valid claim or portion thereof, the board shall satisfy such unpaid claim or portion thereof as soon as a sufficient amount has been deposited in or transferred to the fund. When there is more than one unsatisfied claim outstanding, such claims shall be paid in the order in which the claims were made.

(4)  Upon the payment of any amount from the Auctioneer Recovery Fund in settlement of a claim in satisfaction of a judgment against an auctioneer or auction business as described in s. 468.395, the license of such auctioneer or auction business shall be automatically suspended until the licensee has complied with s. 468.398. A discharge of bankruptcy shall not relieve a person from the penalties and disabilities provided in this section.

(5)  Moneys in the fund at the end of a fiscal year shall be retained in the fund and shall accrue for the benefit of auctioneers and auction businesses. When the fund exceeds the amount as set forth in s. 468.393(2), all surcharges shall be suspended until such time as the fund is reduced below the amount as set forth in s. 468.393(3).

History.--ss. 8, 17, ch. 91-207; s. 4, ch. 91-429; s. 139, ch. 94-218; s. 16, ch. 2000-356; s. 502, ch. 2003-261; s. 54, ch. 2005-152.

(1)  At the time of licensure under s. 468.385, s. 468.3851, or s. 468.3852, each licensee shall pay, in addition to an application and license fee, a surcharge in an amount to be determined by the board, not to exceed $300, which shall be deposited in the Auctioneer Recovery Fund.

(2)  If the total amount in the Auctioneer Recovery Fund, including principal and interest, exceeds $500,000 at the end of the state fiscal year after the payment of all claims and expenses, the amount in excess of $500,000 shall remain in the fund for benefit of the licensees in tolling the surcharge until such time as the surcharge shall need replenishing.

(3)  After October 1, 1995, if the total amount in the Auctioneer Recovery Fund, including principal and interest, is less than $200,000 at the end of the fiscal year after the payment of all claims and expenses, the board shall assess, in addition to any other fees under s. 468.3852, a surcharge against a licensee at the time of initial licensure or at the time of license renewal, according to the following formula in order to maintain the fund at $500,000:

(a)  Determine the amount remaining in the fund at the end of the state fiscal year after all expenses and claims have been paid.

(b)  Subtract the amount determined under paragraph (a) from $500,000.

(c)  Determine the number of initial licenses and license renewals in the fiscal year that precedes the current fiscal year.

(d)  Divide the amount determined under paragraph (b) by the number determined under paragraph (c).

(4)  The board shall assess the surcharge described in subsection (3) against each licensee who receives an initial license or receives a renewal license during the fiscal year that follows the year in which the amount remaining in the fund was less than $200,000.

History.--ss. 9, 17, ch. 91-207; s. 4, ch. 91-429; s. 130, ch. 92-149.

History.--ss. 10, 17, ch. 91-207; s. 4, ch. 91-429.

(1)  Recovery from the Auctioneer Recovery Fund may be obtained as follows:

(a)  Any aggrieved person is eligible to receive recovery from the Auctioneer Recovery Fund if the Florida Board of Auctioneers has issued a final order directing an offending licensee to pay restitution to the claimant as the result of the licensee violating, within this state, any provision of s. 468.389 or any rule adopted by the board and if the board determined that the order of restitution cannot be enforced; or

(b)  Any aggrieved person who obtains a final judgment in any court against any licensee to recover damages for any actual loss that results from the violation, within this state, by a licensee of any provision of s. 468.389 or any rule adopted by the board may, upon termination of all proceedings, including appeals and proceedings supplemental to judgment for collection purposes, file a verified application to the board for an order directing payment out of the Auctioneer Recovery Fund of the amount of actual loss in the transaction that remains unpaid upon the judgment. The amount of actual loss may include court costs, but shall not include attorney's fees or punitive damages awarded.

(2)  The amount paid from the Auctioneer Recovery Fund may not exceed $50,000 per claim or claims arising out of the same transaction or auction or an aggregate lifetime limit of $100,000 with respect to any one licensee. For purposes of this subsection, auctions conducted under a single contract, agreement, or consignment shall be considered a single transaction or auction even though conducted at more than one time or place.

(3)  A claim for recovery from the Auctioneer Recovery Fund shall be made within 2 years from the time of the act giving rise to the claim or within 2 years from the time the act is discovered or should have been discovered with the exercise of due diligence; however, in no event may a claim for recovery be made more than 4 years after the date of the act giving rise to the claim.

(4)  The board shall not issue an order for payment of a claim from the Auctioneer Recovery Fund unless the claimant has reasonably established to the board that she or he has taken proper and reasonable action to collect the amount of her or his claim from the licensee responsible for the loss and that any recovery made has been applied to reduce the amount of the claim on the Auctioneer Recovery Fund.

(5)  Notwithstanding any other provision of this part, no claim based on any act or omission that occurred outside this state or that occurred before October 1, 1991, shall be payable from the Auctioneer Recovery Fund.

(6)  In case of payment of loss from the Auctioneer Recovery Fund, the fund shall be subrogated, to the extent of the amount of the payment, to all the rights of the claimant against any licensee with respect to the loss.

History.--ss. 11, 17, ch. 91-207; s. 4, ch. 91-429; s. 131, ch. 92-149; s. 304, ch. 97-103; s. 17, ch. 2000-356.

(1)  If the payment in full of two or more pending valid claims that have been filed by aggrieved persons against a single licensee would exceed the $50,000 limit as set forth in s. 468.395, the $50,000 shall be distributed among the aggrieved persons in the ratio that their respective claims bear to the aggregate of all valid claims or in any other manner that a court of record may determine to be equitable. Such money shall be distributed among the persons entitled to share in it without regard to the order of priority in which their respective judgments have been obtained or their claims have been filed.

(2)  Upon petition of the board, the court may require all claimants and prospective claimants against one licensee to be joined in one action, to the end that the respective rights of all the claimants to the board may be equitably adjudicated and settled.

(3)  On June 30 and December 31 of each year, the board shall identify each claim that the court orders to be paid during the 6-month period that ended on that day. The board shall pay the part of each claim that is so identified within 15 days after the end of the 6-month period in which the claim is ordered paid. However, if the balance in the fund is insufficient to pay the full payable amount of each claim that is ordered to be paid during a 6-month period, the board shall pay a prorated portion of each claim that is ordered to be paid during the period. Any part of the payable amount of a claim left unpaid due to the prorating of payments under this subsection shall be paid, subject to the $50,000 limit described in s. 468.395, before the payment of claims ordered to be paid during the following 6 months.

History.--ss. 12, 17, ch. 91-207; s. 4, ch. 91-429.

History.--ss. 13, 17, ch. 91-207; s. 4, ch. 91-429; s. 18, ch. 2000-356.

History.--ss. 14, 17, ch. 91-207; s. 4, ch. 91-429.

(1)  Information concerning the board's activities and administrative rulings.

(2)  Distribution of laws, rules, and educational information concerning the practice of auctioneering.

History.--ss. 15, 17, ch. 91-207; s. 4, ch. 91-429.

ORGANIZATION AND PURPOSE

61G2-1.0091           Unexcused Absences

61G2-1.010             Other Board Business for Which Compensation is Allowed

61G2-1.0091 Unexcused Absences.

(1) Unexcused absences shall include any absences other than one of the following:

(a) Absence caused by serious illness of a board member,

(b) Absence due to death or serious illness of an immediate family member,

(c) Absence due to unavoidable travel delays or cancellations.

(2) Members shall communicate the reason for any absence to the Executive Director prior to the meeting and the reason for the absence shall be made part of the minutes of that meeting.

Specific Authority 455.207(3), 468.384(2) FS. Law Implemented 455.207(3) FS. History–New 4-17-94.

61G2-1.010 Other Board Business for Which Compensation is Allowed.

Pursuant to Section 455.207(4), Florida Statutes, Board members are entitled to compensation and expense reimbursement for participation in official Board business. Official Board business includes the following:

(1) Board meetings, except those conducted by telephone conference calls;

(2) Meetings of committees appointed by the Chairman;

(3) Meetings of a Board member with Department of Business and Professional Regulation staff or contractors of the Department held at the Board or Department's request;

(4) Meetings attended by a Board member at the request of the Secretary of the Department or the Board if participation in the meeting is related to the Board's regulatory authority;

(5) Probable Cause Panel Meetings;

(6) All activity of Board members, if authorized by the Board, related to examination of applicants for licensure.

Specific Authority 468.384(2) FS. Law Implemented 468.384(1)(b) FS. History–New 3-19-87, Formerly 21BB-1.010.

RULE CHAPTER 61G2-2

LICENSURE

61G2-2.002             Examination for Licensure

61G2-2.0031           Delinquent Status

61G2-2.0035           Exemption from Licensure Renewal Provisions

61G2-2.004             Licensure by Endorsement or Reciprocity

61G2-2.005         Notice of Address Change

61G2-2.006         Reinstatement of Null & Void Licenses

61G2-2.002 Examination for Licensure.

(1) The examination for licensure must be in writing and must test the applicant's general knowledge of:

(a) The laws of this state relating to bulk sales;

(b) Auctions;

(c) Brokerage; and

(d) Chapter 468, Part VI, and Chapter 455, Florida Statutes.

(2) The examination shall test minimum competency in the subjects set forth in subsection 61G2-2.002(1), F.A.C., by providing examination questions in the following categories and with the following approximate percentages of questions to the examination as a whole.

(a) Advertising – 20%

(b) Legal aspects – 18%

(c) Financial aspects – 18%

(d) Conducting the sale – 15%

(e) Appraisal – 14%

(f) Merchandising – 8%

(g) Soliciting business – 7%

(3) An examination candidate must achieve a scale score of 75 or better in order to achieve a passing grade on the examination.

(4) Any person seeking to take the examination must have submitted a completed application and the application and examination fees provided for in Rules 61G2-3.002 and 61G2-3.003, F.A.C., at least 60 days prior to the scheduled examination date.

(a) Each prospective auctioneer shall complete an application including an Applicant Profile Data as set forth in Department form DPR/AUC/001/Rev. 12-91 and a Personal History as set forth in Department form DPR 1002 Rev. 9/90, both of which are incorporated in this rule by reference.

(b) Each prospective apprentice auctioneer shall complete an application as set forth in Department form DPR/AUC/008 which is incorporated in this rule by reference.

(c) Each prospective auction business shall complete an application as set forth in Department form DPR/AUC/004 which is incorporated in this rule by reference.

(d) If, within 30 days after receipt of an executed form DPR/AUC/004, the department notifies the auction business applicant of any error or omission therein or requests the applicant to furnish any additional information the department is permitted by law to require, the applicant shall correct such errors, supply such omissions and furnish such additional information within 180 days of the date of such notice otherwise the form DPR/AUC/004 will be considered never to have been submitted.

(5) The Board shall review all applicants for licensure by examination and approve their qualifications before an applicant will be permitted to sit for the examination. The application fee is non-refundable. Should an applicant be denied approval to sit for the examination, the examination fee shall be refunded. The examination fee paid to the Department shall be transferred to a subsequent examination upon the applicant's written request, if the request is received in the Board office at least 20 days prior to the scheduled examination date.

(6) Examination results shall be valid for the purpose of issuance of a license for a period not to exceed six months from the Board's certification of examination grades. Any candidate who has successfully completed the examination but who fails to pay the initial license fee or comply with any other prelicensure requirement within that time shall be required to apply for and sit for examination as a new applicant.

Rulemaking Authority 468.384(2) FS. Law Implemented 120.60(2), 455.217(1)(b), 468.385 FS. History–New 5-10-87, Amended 10-20-87, 6-5-88, 5-11-89, Formerly 21BB-2.002, Amended 9-27-93, 8-20-96, 11-1-99.

61G2-2.0031 Delinquent Status.

(1) The failure of any license holder to elect active or inactive status before the license expires shall cause the license to become delinquent.

(2) The delinquent status licensee must affirmatively apply for active or inactive status during the biennium in which the license becomes delinquent. The failure by the delinquent status licensee to cause the license to become active or inactive before the expiration of the biennium which the license became delinquent shall render the license null and void without further action by the Board or Department.

(3) The delinquent status licensee who applies for active or inactive licensee status shall:

(a) File with the Board the complete Agency application for either active or inactive status.

(b) Pay to the Board either the active status or inactive status license fee, the delinquent status licensee fee, and, if applicable, the processing fee; and

(c) Demonstrate compliance with Chapter 61G2, F.A.C.

Rulemaking Authority 455.271 FS. Law Implemented 455.271 FS. History–New 9-25-95.

61G2-2.0035 Exemption from Licensure Renewal Provisions.

(1) Notwithstanding the provisions of Rule 61G2-3.005, F.A.C., a spouse of a member of the armed forces who is absent from the State because of the spouse's duties with the armed forces and, having submitted documentation to the Board demonstrating same, shall be exempt from licensure renewal provisions without paying dues or fees or performing any other act on his or her part.

(2) This rule applies to all auctioneer licenses, apprenticed and business licenses.

Rulemaking Authority 455.02, 468.384(2) FS. Law Implemented 455.02, 468.384(2) FS. History–New 3-29-04.

61G2-2.004 Licensure by Endorsement or Reciprocity.

(1) An auctioneer seeking Florida licensure through endorsement or reciprocity shall file a completed application on the form provided by the Department and the application fee specified in Rule 61G2-3.002, F.A.C.

(2) Applicants for licensure through endorsement or reciprocity must establish that they hold a current valid license to practice auctioneering in another state which has license requirements which are substantially equivalent to or more stringent than Florida licensure requirements and must establish that they otherwise meet the licensure requirements of Section 468.385(3), F.S.

(3) For the purposes of determining whether another state's licensing requirements are substantially equivalent or more stringent than Florida licensure requirements, the Board shall determine whether the following standards are required in the state from which the applicant seeks endorsement or reciprocity.

(a) That a written examination is required.

(b) The training required prior to being permitted to sit for the examination meets one of the following requirements:

1. At least one year of training in the practice of auctioneering which includes all aspects of conducting an auction including, but not limited to the following: drafting and executing contracts for auction services with the seller; preparation and lot division of the goods to be sold; preparation of an advertising plan including an advertising budget and preparation of advertisements in various media; the actual conduct of an auction including bid calling; record keeping at the auction including the item, or lot number, purchaser's number and final price of items or lots sold; preparation and completion of the final settlement after auction; and maintenance of records required by law. The training must include active participation by the trainee in each of these areas at least 5 times during the training period.

2. Successful completion of a course of study consisting of at least 80 classroom hours of instruction. The course standards must be substantially equivalent or more stringent than those set forth for Board-approved courses established by Rule Chapter 61G2-6, F.A.C.

(4) For the purpose of issuance of a license, all endorsement or reciprocal applications will be valid for a period of six months after Board approval. Any applicant who fails to complete the licensure process within that time shall be required to make application as a new applicant.

Rulemaking Authority 468.384(2), 468.387 FS. Law Implemented 468.384(2), 468.387 FS. History–New 12-6-87, Formerly 21BB-2.004, Amended 9-27-93, 5-7-96.

61G2-2.005 Notice of Address Change.

Any requirements for statement of the address of an auctioneer or auction business as required on any Florida application for licensure as an auctioneer or auction business, shall be interpreted to include the obligation of the licensee to file a notice of change of such address with the Board of Auctioneers within 30 days of the effective date of such change.

Rulemaking Authority 468.384(2) FS. Law Implemented 468.385(1), (7) FS. History–New 12-3-90, Formerly 21BB-2.005.

61G2-2.006 Reinstatement of Null & Void Licenses.

(1) Void auctioneer or auction business licenses resulting from a failure to timely renew are not reactivated; however, the Board has discretion to reinstate such licenses if it determines that the provisions of Section 455.271(6)(b), F.S., have been met.

RULE CHAPTER 61G2-3

FEES

61G2-3.001             Fees

61G2-3.002             Application Fees (Repealed)

61G2-3.003             Examination Fees (Repealed)

61G2-3.004             Initial Licensure Fees (Repealed)

61G2-3.0041           Unlicensed Activities, Fees, Disposition (Repealed)

61G2-3.005             Renewal Fees (Repealed)

61G2-3.006             Reactivation Fee (Repealed)

61G2-3.007             Examination Review Fee (Repealed)

61G2-3.008             Duplicate License Fee (Repealed)

61G2-3.010             Auctioneer Recovery Fund Surcharge (Repealed)

61G2-3.011             Change of Status Fee (Repealed)

61G2-3.012             Delinquent Fee (Repealed)

61G2-3.001 Fees

(1) Application fees. The application fee for those applying for an auctioneer license through examination is $50; for an auctioneer license by endorsement or reciprocity $75; for an apprentice license $50; and for an auction business license $50.

(2) Examination fees.

(a) When the examination is not conducted by a professional testing service pursuant to Section 455.2171, F.S., $250.00 payable to the Department. When the examination is conducted by a professional testing service pursuant to Section 455.2171, F.S., $241.00 payable to the Department plus $9.00 payable to the testing service.

(b) When the re-examination is not conducted by a professional testing service pursuant to Section 455.2171, F.S., $250.00 payable to the Department. When the re-examination is conducted by a professional testing service pursuant to Section 455.2171, F.S., $241.00 payable the Department plus $9.00 payable to the testing service.

(3) Initial licensure fees. The initial licensure fee for an auctioneer is $150; an apprentice $150; and for an auction business $150.

(4) Unlicensed activities, fees, dispositions. Each license shall pay, in addition to all other fees, a special fee of $5.00 upon each initial license, and renewal thereof, to fund efforts to combat the unlicensed practice of auctioneering.

(5) Renewal fees. The fee for biennial renewal of an auctioneer’s license is $150; an auction business license $150; and an inactive auctioneer license is $150.

(6) Reactivation fees. The fee for reactivating is $50.

(7) Examination review fee. The fee for review of an applicant’s auctioneer examination questions, answers, paper, grades, and grading key, or any portion thereof is $50.

(8) Duplicate license fee. The fee for a duplicate copy of a previously issued license shall be $25.

(9) Auctioneer Recovery Fund surcharge. At the time of licensure or renewal of either an active or inactive status, under Section 468.385, 468.3851 or 468.3852, F.S., each license shall pay a surcharge fee of $100 which shall be deposited into the Auctioneer Recovery Fund.

(10) Change of Status fee. The change of status fee is $50.00

(11) Delinquent fee. A delinquent status licensee shall pay a delinquency fee of $100.00, when the licensee applies for active or inactive status.

(12) Fees for Reinstatement of a Void License:

(a) Non refundable Application fee of $150.00.

(b) Non refundable Renewal fee of $150.00 – $300.00 for each biennium when timely renewal was missed, as set forth in Rule 61G2-2.006, F.A.C., and

(c) Fee for unlicensed activity and recovery fund of $105.00 – $210.00 for each biennium when timely renewal was missed, as set forth in Rule 61G2-2.006, F.A.C.

Specific Authority 455.2281, 455.271, 468.384(2), 468.386(1), 468.393(1) FS Law Implemented 455.217(2), 455.2171, 455.219(6), 455.2281, 455.271, 468.385(2), (4), (6), (7), 468.3851, 468.386(1), 468.387, 468.393(1) FS. History–New 9-18-07, Amended 4-17-08.

61G2-3.002 Application Fees.

Specific Authority 468.386(1) FS. Law Implemented 468.385, 468.387 FS. History–New 5-4-87, Amended 10-19-87, Formerly 21BB-3.002, Repealed 9-18-07.

61G2-3.003 Examination Fees.

Specific Authority 468.386(1) FS. Law Implemented 455.2171, 468.385(4) FS. History–New 5-4-87, Amended 9-13-88, Formerly 21BB-3.003, Amended 5-3-99, 4-26-04, Repealed 9-18-07.

61G2-3.004 Initial Licensure Fees.

Specific Authority 468.386(1) FS. Law Implemented 468.385(2), (6), (7) FS. History–New 5-4-87, Amended 5-7-90, Formerly 21BB-3.004, Amended 5-21-96, Repealed 9-18-07.

61G2-3.0041 Unlicensed Activities, Fees, Disposition.

Specific Authority 455.2281, 468.384(2) FS. Law Implemented 455.2281 FS. History–New 4-17-94, Repealed 9-18-07.

61G2-3.005 Renewal Fees.

Specific Authority 468.386(1) FS. Law Implemented 468.387 FS. History–New 5-4-87, Formerly 21BB-3.005, Amended 10-15-95, 5-21-96, Repealed 9-18-07.

61G2-3.006 Reactivation Fee.

Specific Authority 468.384(2), 468.386(1) FS. Law Implemented 468.386(1) FS. History–New 10-19-87, Formerly 21BB-3.006. Amended 1-6-98, Repealed 9-18-07.

61G2-3.007 Examination Review Fee.

Specific Authority 468.386(1) FS. Law Implemented 455.217(2) FS. History–New 5-7-90, Formerly 21BB-3.007, Repealed 9-18-07.

61G2-3.008 Duplicate License Fee.

Specific Authority 468.384(2), 468.386(1) FS. Law Implemented 455.219(6), 468.386(1) FS. History–New 12-3-90, Formerly 21BB-3.008, Amended 1-6-98, Repealed 9-18-07.

61G2-3.010 Auctioneer Recovery Fund Surcharge.

Specific Authority 468.386(1), 468.393(1), 468.384(2) FS. Law Implemented 468.393(1) FS. History–New 1-28-92, Formerly 21BB-3.010, Amended 9-25-95, 1-6-98, Repealed 9-18-07.

61G2-3.011 Change of Status Fee.

Specific Authority 468.384(2), 468.386(1), 455.271 FS. Law Implemented 455.271 FS. History–New 8-14-95, Amended 1-6-98, Repealed 9-18-07.

61G2-3.012 Delinquent Fee.

Specific Authority 455.271 FS. Law Implemented 455.271 FS. History–New 9-25-95, Repealed 9-18-07.

CHAPTER 61G2-4

APPRENTICESHIP PROGRAM

61G2-4.001             Apprenticeship Training Requirements

61G2-4.003             Change of Sponsor

61G2-4.005             Funds Received by Apprentice

61G2-4.001 Apprenticeship Training Requirements.

(1) No auctioneer may sponsor more than 3 apprentices at one time. Any auctioneer who serves as a sponsor shall have held a valid Florida auctioneers license for three consecutive years preceding the date on which that auctioneer is named as sponsor of the apprentice.

(2) Any auctioneer who undertakes the sponsorship of an apprentice shall insure that the apprentice receives training in the following:

(a) Laws relating to Bulk sales, brokerages, Chapter 455 and Part VI of Chapter 468, Florida Statutes, and the rules promulgated thereunder.

(b) The proper conduct of all phases of auction including, but not limited to:

1. Drafting and executing a contract for auction services with the seller;

2. Preparation and lot division of goods to be sold;

3. Preparation of an advertising plan including an advertising budget and preparation of advertisements in various media;

4. The actual conduct of the auction sale, including bid calling;

5. Record keeping at the auction sale including the item, or lot number, purchase number and final selling price of items or lots sold;

6. Preparation and completion of the final settlement after the auction sale; and

7. Maintenance of records required by law.

(3) An apprentice must actively participate in at least eighty hours of auction sales during a one-year period of apprenticeship. Each apprentice must actively participate in each phase of an auction delineated by this rule at least five times during the apprenticeship. A record of each auction for which participation credit is claimed must be made on a form provided by the Department and must be filed with the application for auctioneer license examination required by this rule. The following information must be provided:

(a) The date, time and location of the auction;

(b) The name, address and license number of the apprentice and sponsor;

(c) The name and license number of the auction business under which the auction was held;

(d) The phases of the auction for which the apprentice claims active participation credit;

(e) If the auction was conducted by an apprentice, a notation of this fact along with a copy of the sponsor's written consent required by this rule.

(4) Apprentices are prohibited from conducting any auction without the prior express written consent of the sponsor. The apprentice's sponsor must be present at the auction site at any time the apprentice is actively participating in the conducting of the auction. In the event the apprentice's sponsor cannot attend a particular auction, he may appoint a qualified auctioneer who meets the requirements of subsection 61G2-4.001(1), F.A.C., to act in his stead. Prior written consent must be given by the apprentice's sponsor for each such substitution.

(5) Each apprentice and sponsor shall file a report on a form provided by the Department at least 60 days prior to expiration of the apprentice's license, at the time of termination of any sponsorship and at the time of the apprentice's application for licensure as an auctioneer. This report shall contain the following information:

(a) The result of the sponsor's reviews of apprentice records required by this rule and if an apprentice has functioned as a principal auctioneer, by Rule 61G2-5.001, F.A.C.

(b) Any violation by the apprentice of Chapter 455, Florida Statutes, or Chapter 468, Part VI, Florida Statutes, or the rules promulgated thereunder.

(c) Reports required by this rule of apprentice participation in auctions.

(6) No sponsor shall authorize an apprentice to conduct an auction or act as principal auctioneer unless the sponsor has determined that the apprentice has received adequate training to do so.

(7) The sponsor shall be responsible for any acts or omissions of the apprentice which constitute a violation of the laws of this state relating to commercial transactions, Chapters 455 and 468, Part VI, Florida Statutes, and the rules promulgated thereunder.

(8) For the purpose of issuance of a license, all apprentice applications will be valid for a period of six months after Board approval. Any applicant who fails to complete the licensure process within that time shall be required to make application as a new applicant.

Specific Authority 468.384(2) FS. Law Implemented 468.382(3), 468.385 FS. History–New 5-4-87, Amended 12-3-90, Formerly 21BB-4.001, Amended 10-13-93, 10-2-95.

61G2-4.003 Change of Sponsor.

(1) Any licensed apprentice who wishes to change the sponsor under whom he is licensed must submit a new application and application fee. However, a new license fee shall not be required and credit shall be awarded for training received or period of apprenticeship served under the previous sponsor.

(2) No credit for training received or period of apprenticeship served shall be allowed unless it occurred under the supervision of the sponsor under whose supervision the apprentice is licensed.

Specific Authority 468.384(2) FS. Law Implemented 468.382(3), 468.385 FS. History–New 5-4-87, Formerly 21BB-4.003, Amended 10-13-93.

61G2-4.005 Funds Received by Apprentice.

All funds received by an apprentice must be maintained in the auction business escrow account if settlement is not made immediately after an auction.

Specific Authority 468.384(2) FS. Law Implemented 468.382(3), 468.385 FS. History–New 10-13-93, Amended 10-2-95.

CHAPTER 61G2-5

STANDARDS OF PRACTICE

61G2-5.001             Requirements for Conducting an Auction

61G2-5.002             Required Record Keeping

61G2-5.003             Client Funds and Sale Proceeds

61G2-5.004             Advertising

61G2-5.005             Definitions Applying to Exemptions

61G2-5.001 Requirements for Conducting an Auction.

(1) Any auction which is subject to the provisions of Chapter 468, Part VI, F.S., must be conducted by an auctioneer who has an active Florida auctioneer license or an apprentice who has an active Florida apprentice auctioneer license and who has received prior written sponsor consent. Such auction must also be conducted under the auspices of a licensed auction business which has an active Florida auction business license. Any auctioneer or apprentice auctioneer conducting an auction subject to the provisions of Chapter 468, Part VI, F.S., and any auction business under whose auspices such action is held shall be responsible for determining that any auctioneer, auctioneer apprentice, or auction business with whom they are associated in conducting such auction have an active Florida auctioneer, auctioneer apprentice or auction business license as required by law.

(2) The principal auctioneer shall be responsible for conducting the auction in a professional and ethical manner.

(a) The principal auctioneer who calls and accepts bids at the auction shall be a Florida licensed auctioneer or Florida licensed apprentice.

(b) Prominently display at the auction site the licenses of the principal auctioneer, the auction business and any other licensed auctioneers or apprentices who are actively participating in the auction. If such a display is not practicable, then an oral announcement at the beginning of the auction or a prominent written announcement that these licenses are available for inspection at the auction site must be made.

(c) If a buyer premium or any surcharge is a condition to sale at any auction, the amount of the premium or surcharge must be announced at the beginning of the auction and a written notice of this information shall be conspicuously displayed or distributed to the public at the auction site.

(d) Announce at the beginning of the auction the terms of bidding and sale whether the sale is with reserve, without reserve or absolute, or minimum bid required. If the sale is absolute and has been announced or advertised as such, an article or lot may not be withdrawn from sale once a bid has been accepted. If no bid is received within a reasonable time, the item or lot may be withdrawn.

(e) If an auction has been advertised as absolute, no bid shall be accepted from the owner of the property or from someone acting on behalf of the owner unless the right to bid is specifically permitted by law.

(3) The auction business under which the auction is conducted is responsible for all other aspects of the auction to include contract negotiations, advertising, auction organization and layout, merchandise distribution and final settlement with the seller. The auction business may delegate in whole, or in part, different aspects of the auction only to the extent that such delegation is permitted by law and that such delegation will not impede the principal auctioneer’s ability to assure the proper conduct of his independent responsibility for the auction. The auction business under whose auspices the auction is conducted is responsible for assuring compliance with the following requirements:

(a) Comply with Section 468.388, F.S., regarding written agreements for auctions;

(b) Maintain a record book as required by Rule 61G2-5.002, F.A.C.;

(c) Assure that all advertising is in compliance with Rule 61G2-5.004, F.A.C.;

(d) Comply with the provisions of Rule 61G2-5.003, F.A.C., regarding clients’ funds and auction proceeds.

(e) Designate a principal auctioneer for each auction conducted.

Specific Authority 468.384(2) FS. Law Implemented 468.388, 468.389 FS. History–New 10-19-87, Amended 7-4-88, 12-11-88, 12-3-90, 1-28-92, Formerly 21BB-5.001, Amended 10-12-93.

61G2-5.002 Required Record Keeping.

(1) The auction business which conducts an auction must maintain for a period of 2 years from each sale, a record book of all sales for which a written agreement is required. This record book is subject to inspection by the Department or at the request of the Board and must contain the following:

(a) A brief description of the property offered;

(b) The name and address of the owner of the property offered;

(c) The name and address of the buyer;

(d) The price at which the property sold;

(e) The date sale proceeds were delivered to the owner; and

(f) The date and place of sale.

(2) Clerking records shall be maintained to supply the information required in paragraph 61G2-5.002(1)(a),(c) and (d), F.A.C., so long as they are maintained in a manner which is readily available and accessible to the Board and Department.

(3) Record Keeping: Inspection of the records of the auction business shall be required in connection with any violation of Chapters 455 and 468 Part IV, F.S., or any rules promulgated thereunder.

Specific Authority 468.384(2) FS. Law Implemented 468.388(4) FS. History–New 5-6-87, Amended 1-28-92, Formerly 21BB-5.002, Amended 10-12-93, 10-2-95.

61G2-5.003 Client Funds and Sale Proceeds.

(1) When settlement is not made immediately after an auction, then all sale proceeds received for another person must be deposited in an escrow or trust account in an insured bank or savings and loan association located in this state within two (2) working days after the auction. A maximum of $100 may be kept in the escrow account for administrative purposes.

(2) Each auction business shall maintain, for not less than two years, a separate ledger showing the funds held for another person deposited and disbursed by the auction business for each auction. The escrow or trust account must be reconciled monthly with the bank statement. A signed and dated record shall be maintained for a two year period and be available for inspection by the Department or at the request of the Board.

(3) Any interest which accrues to sale proceeds on deposit shall be the property of the seller for whom the funds were received unless the parties have agreed otherwise by written agreement executed prior to the auction.

(4) Unless otherwise provided by written agreement executed prior to the auction, funds received by a licensee from the seller or his agent for expenses, including advertising, must be expended for the purposes advanced or refunded to the seller at the time of final settlement. Any funds so received shall be maintained in an escrow or trust account in an insured bank or savings and loan located in this state. However, this rule does not prohibit advanced payment of a flat fee.

(5) Failure to comply with this rule is a violation of Sections 455.227(1)(b), and 468.389(1)(e) and (h), F.S.

Specific Authority 468.384(2) FS. Law Implemented 468.389(1)(c),(e),(h) FS. History–New 5-6-87, Formerly 21BB-5.003, Amended 10-12-93, 10-2-95.

61G2-5.004 Advertising.

(1) No licensed auctioneer, apprentice or auction business may disseminate or cause to be disseminated any advertisement or advertising which is false, deceptive, misleading or untruthful.

(2) Any advertisement or advertising shall be deemed to be false, deceptive, misleading or untruthful, if it:

(a) Contains misrepresentations of facts;

(b) Is misleading or deceptive because in its content or in the context in which it is presented, it makes only a partial disclosure of relevant facts;

(c) Creates false or unjustified expectations of the services to be performed;

(d) Contains any representation or claim which the advertising licensee fails to perform;

(e) Fails to include the name and license number of the principal auctioneer and the auction business;

(f) Fails to include the name and license number of the sponsor if an apprentice is acting as the principal auctioneer;

(g) Advertises an auction as absolute without specifying any and all items to be sold with reserve or with minimum bids;

(h) Fails to include the percentage amount of any buyer’s premium or surcharge which is a condition to sale.

Specific Authority 468.384(2) FS. Law Implemented 468.388(6), 468.389(1)(d), (j) FS. History–New 10-19-87, Formerly 21BB-5.004, Amended 10-12-93, 4-9-01.

61G2-5.005 Definitions Applying to Exemptions.

For the purpose of exemption from the requirements of Chapter 468, Part VI, F.S., the following definitions apply:

(1) “Auctions conducted by the owner or his attorney” or “auctions conducted by the trustee” means that the owner or his attorney or the trustee actively participates and takes responsibility for all aspects of the auction, including any necessary contract negotiations, advertising, auction organization and layout, bid calling, merchandise distribution and receipt of sale proceeds.

(2) The phrase “an auctioneer who specializes in the sale of livestock” is a person with training or experience in the auction of livestock whose business primarily relates to livestock auctions and sales.

(3) The phrase “conducted under the supervision of a livestock trade association or governmental agency” means that the livestock trade association or governmental agency actively regulates by law, rules or by-laws of the association, the safe conduct of the auction, including the health of the livestock and the proper management of sale proceeds.

(4) The phrase “auctions conducted as part of the sale of real property” means that any property so auctioned is included in the bids and sale price of the real property.

(5) A charitable auction is one where all the merchandise is either owned by or donated to the organization that is conducting the auction and all proceeds are retained by said organization.

Specific Authority 468.384(2) FS. Law Implemented 468.383 FS. History–New 5-6-87, Formerly 21BB-5.005, Amended 10-12-93.

 RULE

CHAPTER 61G2-6

STANDARDS FOR CLASSROOM INSTRUCTIONS

61G2-6.001             Standards for Classroom Instructions

61G2-6.001 Standards for Classroom Instructions.

A course of study in auctioneering must meet the following requirements for its successful completion to qualify an applicant for licensure.

(1) The course must consist of at least 80 hours of classroom instruction, with each classroom hour consisting of at least 50 minutes of instruction.

(2) The course of study must result in a certificate of successful completion and must provide instruction in the following subjects:

(a) Drafting and executing contracts for auction services;

(b) Preparation and lot division of goods to be sold;

(c) Conduct of auction, including proper bid calling;

(d) Record-keeping at auction and maintenance of records required by law;

(e) Preparation and completion of final settlement after auction;

(f) Laws relating to bulk sales and the Uniform Commercial Code as it relates to auctioneering;

(g) Laws relating to regulation of auctioneers.

(h) Brokerages.

Specific Authority 468.384(2) FS. Law Implemented 468.385(6) FS. History–New 1-26-88, Formerly 21BB-6.001.

RULE

CHAPTER 61G2-7

DISCIPLINE

61G2-7.010             Probable Cause

61G2-7.020             Time for Payment of Fines

61G2-7.030             Disciplinary Guidelines

61G2-7.040             Minor Violations

61G2-7.050             Citations

61G2-7.060             Restitution

61G2-7.010 Probable Cause.

Pursuant to Section 455.225(4), F.S., the Board delegates to the Department the authority to determine whether probable cause exists in any particular case.

Specific Authority 455.225(4), 468.384(2) FS. Law Implemented 455.225(4) FS. History–New 5-4-87, Formerly 21BB-1.008, 21BB-7.010, Amended 4-17-94, 4-14-02.

61G2-7.020 Time for Payment of Fines.

In cases where the Board imposes an administrative fine for violation of Chapter 455, F.S., Chapter 468, Part VI, F.S., or the rules promulgated thereunder, the fine shall be paid within 30 days of issuance of the Board’s final order.

Specific Authority 468.384(2), 468.389(3)(a) FS. Law Implemented 468.389(3)(a) FS. History–New 3-19-87, Formerly 21BB-1.016, 21BB-7.020.

61G2-7.030 Disciplinary Guidelines.

(1) When the Board finds that an applicant or licensee whom it regulates under Chapter 468, Part VI, F.S., has committed any of the acts set forth in Section 468.389, F.S., it shall issue a final order imposing appropriate penalties within the ranges recommended in the following disciplinary guidelines:

(a) Violation of any law relating to trade or commerce of this state or of the state in which an auction is conducted. The usual penalty shall be: 1st offense – an administrative fine up to $500, probation and the successful completion of the licensure exam; 2nd offense – an administrative fine from $500 to $1,000 and license suspension or revocation; 3rd offense – an administrative fine of $1,000 and license revocation.

(b) Misrepresentation of property for sale at auction or making false promises concerning the use, value, or condition of such property by an auctioneer or auction business or by anyone acting as an agent of or with the consent of the auctioneer or auction business. The usual penalty shall be: 1st offense – administrative fine up to $500, a reprimand and probation and/or license suspension; 2nd offense – an administrative fine of $500 to $1,000 and suspension; 3rd offense – an administrative fine of $1,000 and license revocation.

(c) Failure to account for money belonging to another which has come into the control of an auctioneer or auction business through an auction, within a reasonable time not to exceed 30 days. The usual penalty shall be: 1st offense – an administrative fine of $100 to $500 and a reprimand; 2nd offense – an administrative fine of $500 to $1,000, an increase in the amount of bond required, probation and successful completion of the licensure examination; 3rd offense – an administrative fine of $1,000 and license revocation.

(d) Failure to pay money belonging to another which has come into the control of an auctioneer or auction business through an auction, within a reasonable time not to exceed 30 days. The usual penalty shall be: 1st offense – an administrative fine of $500 to $1,000, probation and/or license suspension; 2nd offense – an administrative fine of $1,000, suspension and an increase in the amount of bond required; 3rd offense – an administrative fine of $1,000 and license revocation.

(e) False, deceptive, misleading, or untruthful advertising. The usual penalty shall be: 1st offense – an administrative fine of $100 to $500 and probation; 2nd offense – an administrative fine of $500 to $1,000 and license suspension; 3rd offense – an administrative fine of $1,000 and license revocation.

(f) Conduct in connection with a sales transaction which demonstrates bad faith or dishonesty. The usual penalty shall be: 1st offense – an administrative fine of $1,000 and license suspension followed by probation; 2nd offense – an administrative fine of $1,000, license suspension followed by probation and an increase in the amount of bond required; 3rd offense – an administrative fine of $1,000 and license revocation.

(g) Using or permitting the use of false bidders, cappers, or shills. The usual penalty shall be: 1st offense – an administrative fine of $1,000 and license suspension followed by probation; 2nd offense – an administrative fine of $1,000, license suspension followed by probation and an increase in the amount of bond required; 3rd offense – an administrative fine of $1,000 and license revocation.

(h) Making any material false statement on a license application. The usual penalty shall be denial of license or revocation of license and an administrative fine of $1,000.

(i) Commingling money or property of another person with his own. The usual penalty shall be: 1st offense – an administrative fine of $100 to $500 and a reprimand; 2nd offense – an administrative fine of $500 to $1,000, an increase in the amount of bond required, probation and successful completion of the licensure examination; 3rd offense – an administrative fine of $1,000 and license revocation.

(j) Refusal or neglect of any auctioneer or other receiver of public moneys to pay the moneys so received into the State Treasury at the times and under the regulations prescribed by law. The usual penalty shall be: 1st offense – an administrative fine of $500 to $1,000, probation and/or license suspension; 2nd offense – an administrative fine of $1,000, license suspension and an increase in the amount of bond required; 3rd offense – an administrative fine of $1,000 and license revocation.

(k) Violating any provision of Chapter 468, Part VI, F.S., Chapter 455, F.S., any rule of the Board or Department. The usual penalty shall be selected from the full range of penalties available to the Board and will be based upon the severity of the underlying offense.

(l) Violating any lawfully issued order of the Board or Department previously entered in a disciplinary hearing, or failure to comply with a lawfully issued subpoena of the Department. The usual penalty shall be an administrative fine of $1,000 and license suspension or revocation.

(m) Having a license to practice a comparable profession revoked, suspended, or otherwise acted against by another state, territory, or county. The usual penalty shall be commensurate with the penalty invoked by the other jurisdiction or a penalty consistent with these guidelines for the underlying offense committed in the other jurisdiction.

(n) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice or the ability to practice the profession of auctioneering. The usual penalty shall be an administrative fine of $1,000 and license suspension or revocation.

(2) Based upon consideration of aggravating or mitigating factors, present in an individual case, the Board may deviate from the penalties recommended in subsection (1) above. The Board shall consider as aggravating or mitigating factors the following:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the licensee has been previously disciplined by the Board;

(f) The length of time licensee has practiced;

(g) The actual damage, physical or otherwise, caused by the violation;

(h) The deterrent effect of the penalty imposed;

(i) The effect of the penalty upon the licensee’s livelihood;

(j) Any effort of rehabilitation by the licensee;

(k) The actual knowledge of the licensee pertaining to the violation;

(l) Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop the violation;

(m) Related violations against the licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;

(n) Actual negligence of the licensee pertaining to any violation;

(o) Penalties imposed for related offenses under subsection (1) above;

(p) Any other relevant mitigating or aggravating factors under the circumstances.

(3) Penalties imposed by the Board pursuant to subsection (1) above may be imposed in combination or individually, and are as follows:

(a) Refusal to certify to the Department an application for licensure.

(b) Revocation or suspension of a license.

(c) Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

(d) Requirement of bonding in amounts not to exceed $100,000 for auctioneers and $300,000 for auction businesses.

(e) Issuance of a reprimand.

(f) Placement of the licensee on probation for a period of time and subject to such conditions as the Board may specify, including requiring the auctioneer to successfully complete the licensure examination.

Specific Authority 455.2273(1) FS. Law Implemented 455.2273(1) FS. History–New 12-6-87, Formerly 21BB-1.030, 21BB-7.030, Amended 8-29-93.

61G2-7.040 Minor Violations.

 For purposes of Section 455.225(3), F.S., the Board hereby deems the following violations to be minor:

(1) First time failure of an auctioneer or auction business to include the name and license number of such auctioneer and auction business in an advertisement, as required by Section 468.388(6), F.S.

(2) First time failure of an auctioneer or auction business to prominently display his license, or make it otherwise available for inspection, at each auction in which he participates, as required by Section 468.388(5), F.S.

(3) First time failure of an auctioneer and auction business to advertise an auction as absolute without specifying any and all items to be sold with reserve or with minimum bids as prohibited by Section 468.389(1)(d), F.S.

(4) First time failure of an auctioneer or auction business to file a change of address with the Board office within 30 days of the effective date of such change, as prohibited by Section 468.389(1)(d), F.S.

Specific Authority 455.225(3) FS. Law Implemented 455.225(3) FS. History–New 7-26-90, Formerly 21BB-1.0171, 21BB-7.040, Amended 8-29-93.

61G2-7.050 Citations.

(1) Definitions.

(a) “Citation” means an instrument which meets the requirements set forth in Section 455.224, F.S., and which is served upon a subject for the purpose of assessing a penalty in an amount established by this rule;

(b) “Subject” means the licensee, trainee, or applicant alleged to have committed a violation designated in this rule.

(2) In lieu of the disciplinary procedures contained in Section 455.225, F.S., the Department is hereby authorized to dispose of any violation designated herein by issuing a citation to the subject within six months after the filing of the complaint which is the basis for the citation.

(3) The procedures described herein apply only for an initial offense of the alleged violation. Subsequent violation(s) of the same rule or statute shall require the procedures of Section 455.225, F.S., to be followed. In addition, should an initial offense for which a citation could be issued occur in conjunction with violations not described herein, then the procedures of Section 455.225, F.S., shall apply.

(4) Pursuant to Section 455.224, F.S. (1991), the Board sets forth below those violations for which there is no substantial threat to the public health, safety, and welfare; or, if there is a substantial threat to the public health, safety, and welfare, such potential for harm has been removed prior to the issuance of the citation. The Board hereby designates the following as citation violation which shall result in a penalty of one hundred dollars ($100.00).

(a) Failure of an auctioneer or auction business to include the name and license number of such auctioneer or auction business in an advertisement as required by Section 468.388(6), F.S.

(b) Failure of an auctioneer or auction business to prominently display his license, or make it otherwise available for inspection, at each auction in which he participates as required by Section 468.388(6), F.S.

(c) First time failure of an auctioneer or auction business to advertise an auction as absolute without specifying any and all items to be sold with reserve

or with minimum bids as prohibited by Section 468.389(1)(d), F.S.

(d) First time failure of an auctioneer or auction business to file a change of address with the Board office within 30 days of the effective date of such change.

(5) Prior to issuance of the citation, the Department must confirm that the violation has been corrected or is in the process of being corrected. If the violation is a substantial threat to the public health, safety, and welfare, such potential for harm must be removed prior to issuance of the citation.

(6) Once the citation becomes a final order, the citation and complaint become a public record pursuant to Chapter 119, F.S., unless otherwise exempt from the provisions of Chapter 119, F.S. The citation and complaint may be considered as aggravating circumstances in future disciplinary actions pursuant to Rule 61G2-7.030, F.A.C.

(7) The Board of Auctioneers shall, at the end of each calendar quarter, promulgate a report of the citations issued which report shall contain the violation, fine imposed, whether the subject complied with the citation upon it becoming a final order, and the number of subjects who chose to follow the procedures of Section 455.224, F.S.

Specific Authority 455.224, 468.384(2) FS. Law Implemented 455.224 FS. History–New 1-1-92, Formerly 21BB-1.019, 21BB-7.050, Amended 8-29-93, 3-8-94, 10-2-95.

61G2-7.060 Restitution.

Any restitution required as a condition of discipline shall not be dispersed from the auctioneer recovery program.

Specific Authority 468.389 FS. Law Implemented 468.389 FS. History–New 10-2-95.

RULE

CHAPTER 61G2-8

DEFINITIONS

61G2-8.010             Auction

61G2-8.030             Mediation

61G2-8.010 Auction.

Auction means the sale of goods or real estate by means of exchange between an auctioneer and members of the audience; the exchanges consisting of a series of invitations for offers made by the auctioneer, offers made by members of the audience, and the acceptance by the auctioneer of the highest or most favorable offer. Use of written bids, media technology or mails in any part of the promotions, bidding, acceptance or any other part of a transaction shall not exclude such transaction from being classified as an auction.

Specific Authority 468.384(2) FS. Law Implemented 468.381, 468.383 FS. History–New 9-2-92, Formerly 21BB-8.010.

61G2-8.030 Mediation.

Pursuant to Section 468.388(6), F.A.C., the Board designates the following areas as appropriate for mediation;

(1) First time failure of an auctioneer or auction business to include the name and license number of such auctioneer and auction business in an advertisement, as required by Section 468.388(6), F.S.

(2) Failure of an auctioneer or auction business to prominently display his licenses, or make it otherwise available for inspecting at each auction in which he participated as required by Section 468.388(6), F.S.

Specific Authority 455.2235, 468.388(6) FS. Law Implemented 455.2235, 468.388(6) FS. History–New 10-8-95.