18VAC25-21 Regulations of the Virginia Auctioneers Board

REGULATIONS

Vol. 32 Iss. 1 - September 07, 2015

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

AUCTIONEERS BOARD

Chapter 21

Final Regulation

Title of Regulation: 18VAC25-21. Regulations of the Virginia Auctioneers Board (amending 18VAC25-21-10, 18VAC25-21-50, 18VAC25-21-70, 18VAC25-21-80, 18VAC25-21-90, 18VAC25-21-110, 18VAC25-21-120, 18VAC25-21-140 through 18VAC25-21-185, 18VAC25-21-220, 18VAC25-21-250, 18VAC25-21-280; adding 18VAC25-21-95).

Statutory Authority: §§ 54.1-201 and 54.1-602 of the Code of Virginia.

Effective Date: November 1, 2015.

Agency Contact: Marian H. Brooks, Regulatory Board Administrator, Auctioneers Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone [phone], FAX [phone], or email [e-mail].

Summary:

The amendments (i) replace the $40 examination and reexamination fees with language making such fees subject to competitively negotiated contracts, (ii) allow licensees to use continuing education hours gained in reciprocating states to meet continuing education requirements in Virginia, and (iii) clarify existing regulatory language. Since publication of the proposed regulation, a change is added to clarify the requirements of the contract between auctioneer or auction firm and the owner of the items to be sold.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

Part I
Definitions

18VAC25-21-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Owner" means the bona fide owner or any lawfully designated agent of the real or personal property being offered for sale; in the case of a corporation, partnership, or other entity, except a sole proprietorship, an authorized officer, director, or partner may be deemed to be "owner" of the real or personal property being offered for sale, provided such entity is licensed to do business in the Commonwealth of Virginia.

18VAC25-21-50. Application.

A. All applicants seeking licensure by reciprocity or examination shall submit a fully executed application with the appropriate fee or fees attached. Applicants will be notified if their application is incomplete.

Applications for licensure by examination must comply with the requirements of the board's designee as to the deadline for submission of the application to the board's designee.

B. 1. If a corporation, limited liability company, or other entity, the application shall include copies of the certificate of incorporation or certificate of organization issued by the Virginia State Corporation Commission, articles and bylaws.

2. If a foreign corporation, foreign limited liability company, or other entity, the application shall include copies of the certificate of authority to conduct business issued by the Virginia State Corporation Commission, which shall be required in lieu of the certificates as required by subdivision 1 of this subsection.

3. Any firm applicant shall not have been previously found by any regulatory board or agency to have violated any applicable regulations or laws in the course of performing auctioneer duties or been convicted or found guilty, regardless of the manner of adjudication, in any jurisdiction of the United States of a misdemeanor involving moral turpitude or any felony, there being no appeal pending therefrom or the time for appeal having elapsed. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. A certified copy of a final order, decree or case decision by a court or regulatory agency with the lawful authority to issue such order shall be admissible as prima facie evidence of such conviction or discipline. Applicants for licensure who do not meet requirements set forth in this section may be approved for licensure following consideration by the board in accordance with § 54.1-204 of the Code of Virginia.

C. All applications will be reviewed by the Auctioneers Board staff, or the board's designee, to determine eligibility for examination and licensure within 30 days of receipt at the offices of the Department of Professional and Occupational Regulation or the board's designee. However, failure to review an application within 30 days of receipt shall not imply or result in the automatic approval of the application. No applicant will be approved for licensure unless all requirements of this part of this chapter are met.

18VAC25-21-70. Fees.

Fees are nonrefundable and shall not be prorated. The following fees shall apply:

1. Individual auctioneer license	$25
2. Auctioneer firm license	$55
3. Examination	$40
4. Reexamination fee	$40
5. 3. Renewal for individual auctioneer's license	$55
6. 4. Renewal for firm or corporation license	$65
7. 5. Late renewal for an individual auctioneer's license	$80
8. 6. Late renewal for an auction firm or corporate license	$90
9. 7. Reinstatement of the individual auctioneer's license	$105
10. 8. Reinstatement of the firm or corporate license	$115

The fee for examination or reexamination is subject to contracted charges by an outside vendor. These contracts are competitively negotiated and bargained for in compliance with the Virginia Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia). The board may adjust the fee charged to candidates in accordance with these contracts.

Part III
Renewal/Reinstatement

18VAC25-21-80. Notice of renewal.

The Department of Professional and Occupational Regulation board will mail a renewal notice to the licensee outlining the amount due and procedures for renewal to the last known mailing address of record. Failure to receive this notice shall not relieve the individual or firm licensee of the obligation to renew.

Licenses issued under this chapter shall be issued for a two-year period. Each license holder, corporation or firm shall be required to renew the license by submitting the proper fee made payable to the Treasurer of Virginia, with verification of current surety bond coverage as detailed in 18VAC25-21-30. In addition, individual license holders applying for renewal are required to certify that they comply with the continuing education requirements as contained in this chapter. By renewing the license, the licensee is certifying continued compliance with the Standards of Practice in Part IV (18VAC25-21-100 et seq.) and Standards of Conduct in Part V (18VAC25-21-180 et seq.), as well as Continuing Education Requirements in Part VII (18VAC25-21-230 et seq.) of this chapter.

18VAC25-21-90. Failure to renew.

A. Any individual or firm licensee who fails to renew a license within 30 days after the license expires, shall be required to pay a late renewal fee.

B. Any individual or firm licensee, including individuals initially licensed pursuant to § 54.1-603 A of the Code of Virginia, who fails to renew his license within six calendar months after the expiration date of the license shall be required to apply for reinstatement of the license. The applicant shall submit to the Department of Professional and Occupational Regulation board a reinstatement application and fee and comply with the following paragraph.

If the license has expired for six months or more, but less than two years, the applicant shall be required to submit a reinstatement application, which shall be evaluated by the board to determine if the applicant meets the renewal requirements. In addition, individual license holders applying for reinstatement are required to provide evidence of compliance with the continuing education requirements as contained in this chapter. A license that is reinstated shall be deemed as having been continuous without interruption. Nothing in these regulations shall divest the board of its authority to discipline a license holder for a violation of the law or regulation during the period of time for which the regulant licensee was licensed.

C. If the license has expired for two years or more, the applicant shall be required to submit a new application and meet current entry requirements that are in effect as of the date the application is received by the board office. The applicant shall be required to submit the examination fee and sit for and pass the Virginia Licensed Auctioneer's Examination or comply with the provisions contained in 18VAC25-21-40. Any auctioneering activity conducted between the time the previous license expired and the effective date of the new license shall be considered unlicensed activity.

D. The date that the complete renewal application, including fees and all required documentation, is received by the Department of Professional and Occupational Regulation board or its agent will determine whether a license will be renewed without penalty or will be subject to reinstatement requirements.

E. Auctioneer individual and firm licenses Licenses issued under this regulation shall expire 24 months from the last day of the month in which the license was issued. The expiration date of the license will be included on the license.

18VAC25-21-95. Board discretion to deny renewal or reinstatement.

The board may deny renewal or reinstatement of a license for the same reason as it may refuse initial licensure or discipline a licensee. The licensee has the right to request further review of any such action by the board under the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

18VAC25-21-110. Contracts.

A. When an auctioneer or auction firm a licensee agrees to conduct an auction, a contract shall be drawn setting forth the particulars of the terms and conditions under which the auctioneer or auction firm received the real or personal property for auction and particulars for the disbursement of the proceeds. Each contract for auction shall include the following:

1. a. A detailed list of the real or personal property received for sale with adequate descriptions of the property so that the personal property [ of material value ] can be readily identified. If a list cannot be made at the time of signing of the contract, [ and the owner of the items agrees to waive this requirement in writing in an addendum to the contract, ] then a list must be [ signed and dated by the owner and ] made a part of the contract (and attached) prior to auction of the real or personal property for that day; or

b. If the auctioneer or auction firm enters into a contract to sell items on a consignment basis where the total value of all the items to be sold at any one action does not exceed $500, [ and the owner of the items agrees to waive this requirement in writing on a document separate from, but made a part of, the contract, ] then the requirement contained in subdivision 1 a of this subsection is not applicable.

2. The name, address, telephone number, and license number of the Virginia auctioneer or auction firm licensee entering into the contract.

3. The name, address and telephone number of the property owner.

4. The date, time and place of the auction or auctions at which the real or personal property is scheduled to be auctioned. The date by which the property is to be returned or otherwise disposed of in accordance with the terms of the contract if it is not sold.

5. The fee or percentage of gross sales the auctioneer or auction firm will charge the owner and what services are included in the fee, such as preparation, travel, labor, advertising and any other auction related expenses.

6. By what date the owner is to be paid and who is responsible for disbursing the funds.

7. A statement that the clerk sheets, or other evidence to properly account for all items sold, shall be given or made available for inspection by the owner on a daily basis.

8. The following statement above the owner's signature line: "I have read and accepted the terms of this contract."

B. A legible executed copy of the contract and any addendums shall be given to the owner at the time of execution.

18VAC25-21-120. Conduct at auctions.

No auctioneer or auction firm licensee shall attempt to escalate bidding through false bids, or through collusion with another (shills). The auctioneer or auction firm licensee shall not bid on the owner's behalf nor knowingly accept a bid made by the owner or made on the owner's behalf unless notice has been given that liberty for such bidding has been reserved. The auctioneer or auction firm licensee shall not neither bid on his own behalf nor knowingly accept a bid made on his behalf unless notice has been given that such bidding will be permitted.

18VAC25-21-140. Documentation.

Upon completion of the auctioneer's or auction firm's licensee's service, each owner shall be given legible copies of bills of sale, clerk sheets, consignment sheets, settlement papers, balance sheets or other evidence to properly account for all items sold at auction.

18VAC25-21-150. Escrow funds.

A. Proceeds of a personal property auction not disbursed to the owner on auction day shall be deposited in an auction escrow account by the auctioneer/auction firm licensee no later than the next banking day following the date of auction or sale of the goods, whichever occurs first.

B. Notwithstanding the provisions of subsection A of this section for, proceeds that are paid via credit card, the payment of such proceeds from the credit card issuer debit card, check card, or any other electronic funds transfer (EFT) method shall be deposited into an auction escrow account upon receipt from the credit card issuer originating source.

C. The auction escrow account shall be used solely for the preservation and guarantee of auction proceeds until disbursed at settlement. Funds for any other purpose shall not be commingled with the auction escrow account. Contingency accounts established to guarantee checks accepted on the owner's behalf shall not be considered commingling of funds. Moneys due to the licensee shall not be withdrawn from the auction escrow account until final settlement is made with the owner.

D. Funds to be deposited in the escrow account may include moneys that shall ultimately belong to the licensee for incidental expenses per the terms of the contract. Such moneys shall be separately identified in the escrow account records and shall be paid to the licensee by a check drawn on the escrow account when the funds become due to the licensee. The fact that an escrow account contains money that may ultimately belong to the licensee does not constitute "commingling of funds" provided that there are periodic withdrawals of said funds at intervals of not more than six months and that the licensee can at all times accurately identify the total funds in that account that belong to the licensee.

E. On funds placed in an account bearing interest, written disclosure in the contract of sale or lease at the time of contract or lease writing shall be made to the principals to the transaction regarding the disbursement of interest.

C. Auctioneers/auction firms F. Auctioneers and auction firms shall use federally insured depositories in the Commonwealth of Virginia. All accounts, checks, and bank statements shall be labeled "escrow" and the accounts shall be designated as "escrow" accounts with the financial institution where such accounts are established.

D. G. Proceeds due from the sale of goods other than real property shall be disbursed to the owner no later than 30 days after the date of each auction.

E. H. Funds from a real estate auction shall be held in escrow until settlement in accordance with the agreement of sale.

F. I. If the owners' owner's goods are not sold in a single auction, proceeds due shall be disbursed to the owner within 30 days after each auction for goods other than real property, or in accordance with the agreement of sale for the sale of real property. Notice must be given to the owner of tentative date of auction, or date of return to the owner, of the remaining goods.

G. The auction escrow account shall be used solely for the preservation and guarantee of auction proceeds until disbursed at settlement. Funds for any other purpose shall not be commingled with the auction escrow account. Contingency accounts established to guarantee checks accepted on the owner's behalf shall not be considered commingling of funds. Moneys due to the licensee shall not be withdrawn from the auction escrow account until final settlement is made with the owner.

H. J. The balance in the escrow accounts shall be sufficient at all times to account for all funds that are designated to be held by the licensee. A licensee shall not disburse or cause to be disbursed moneys from an escrow account unless sufficient money is on deposit in that account to the credit of the individual client or property involved.

I. Funds to be deposited in the escrow account may include moneys that shall ultimately belong to the licensee for incidental expenses per the terms of the contract. Such moneys shall be separately identified in the escrow account records and shall be paid to the licensee by a check drawn on the escrow account when the funds become due to the licensee. The fact that an escrow account contains money that may ultimately belong to the licensee does not constitute "commingling of funds" provided that there are periodic withdrawals of said funds at intervals of not more than six months, and that the licensee can at all times accurately identify the total funds in that account that belong to the licensee.

J. On funds placed in an account bearing interest, written disclosure in the contract of sale or lease at the time of contract or lease writing shall be made to the principals to the transaction regarding the disbursement of interest.

18VAC25-21-160. Records.

The licensee is required to maintain, for a period of four years from the date of settlement, written records of the following: the contract drawn with each owner; auction records, including but not limited to lists of buyers and their addresses; and clerk sheets showing the items sold including the buyers' numbers or names and the selling prices and the final settlement papers shall be retained for a period of four years from the date of settlement. These business records shall be available for inspection by the board or its designees as deemed appropriate and necessary.

18VAC25-21-170. Change of address.

A. An auctioneer's or auction firm's license Licenses shall not be transferable and shall bear the same name and physical address as the business. Upon dissolution or change in the form of the business entity of an auction firm, the auction firm license shall become void.

B. Written notice shall be given within 30 days A licensee shall report all changes of address to the board by each individual or firm licensee of any change of physical business address or location in writing, within 30 calendar days of the change, whereupon the board shall issue an amended license without fee for the unexpired portion of the biennial period.

C. A post office box is not an acceptable only when a physical business address is also provided. If the licensee holds more than one license, certificate, or registration, the licensee shall inform the board of all licenses, certificates, and registrations affected by the address change.

Part V
Standards of Conduct

18VAC25-21-180. Discipline.

The board has the power to fine any individual or firm licensee, or to suspend or revoke any license issued under the provisions of Chapter 6 (§ 54.1-600 et seq.) of Title 54.1 of the Code of Virginia and the regulations of the board pursuant to the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) if it finds that:

1. The license was obtained, renewed or reinstated through fraud or misrepresentation;

2. The licensed auctioneer or firm licensee has been convicted or found guilty, regardless of the manner of adjudication, in any jurisdiction of the United States of a misdemeanor involving moral turpitude or any felony, there being no appeal pending therefrom or the time for appeal having elapsed. Review of prior criminal convictions shall be subject to the requirements of § 54.1-204 of the Code of Virginia. A certified copy of a final order, decree or case decision by a court with the lawful authority to issue such order shall be admissible as prima facie evidence of such conviction or discipline;

3. The licensed auctioneer or firm licensee has been found by any regulatory board, agency, or jurisdiction where licensed to have had a license or registration suspended, revoked or surrendered in connection with a disciplinary action, who has been the subject of discipline in another jurisdiction or to have violated any applicable regulations or laws in the course of performing auctioneer duties. A certified copy of a final order, decree or case decision by a court or regulatory agency with the lawful authority to issue such order shall be admissible as prima facie evidence of such conviction or discipline;

4. The licensed auctioneer or firm licensee has not demonstrated reasonable care, judgment, or application of his knowledge and ability in the performance of auctioneering duties;

5. The license auctioneer or firm licensee violated or induced assisted another person to violate any provisions of Chapters Chapter 1 (§ 54.1-100 et seq.), 2 (§ 54.1-200 et seq.), 3 (§ 54.1-300 et seq.), or 6 of Title 54.1 of the Code of Virginia, or any provision of this chapter;, or combined or conspired with or acted as agent, partner, or associate for another; or

6. The licensee fails to comply, or misrepresents any information pertaining to his compliance, with any of the continuing education requirements as contained in this chapter.

18VAC25-21-185. Cooperation with board.

A. The licensee shall, upon request or demand, produce to the board, or any of its agents, within 10 days any plan, document, book, record or copy thereof in his possession concerning a transaction covered by this chapter, and shall cooperate in the investigation of a complaint filed with the board.

B. A professional licensee who has direct knowledge that any individual, including himself, or firm may be violating any of these provisions, or the provisions of Chapters 1 (§ 54.1-100 et seq.) through 3 (§ 54.1-300 et seq.) or Chapter 6 (§ 54.1-600 et seq.) of Title 54.1 of the Code of Virginia, shall immediately inform the secretary of the board in writing and shall cooperate in furnishing any further information or assistance that may be required.

C. The board, in its discretion, may refuse to grant the renewal or reinstatement of a license of any person for any of the reasons specified in subsection A of this section.

18VAC25-21-220. Periodic requalification for continued course approval.

At times established by the board, the The board may require that schools that have previously obtained course approval provide the board with evidence, in a form set forth by the board, that they continue to comply with the requirements of 18VAC25-21-190 and 18VAC25-21-200. Failure to continue to comply with the board's requirements or respond to such a request may result in the board withdrawing its approval.

18VAC25-21-250. Continuing education requirements for renewal or reinstatement.

A. Individuals Licensees whose licenses expire [ , ] or [ who ] apply to reinstate [ , after February 1, 2008, ] shall be required to comply with the continuing education provisions of this chapter.

B. Individuals are required to complete at least six continuing education credit hours of board-approved continuing education courses for any license renewal or reinstatement.

B. Licensees are required to complete at least six continuing education credit hours of board-approved continuing education courses for any license renewal or reinstatement.

A Virginia licensee that is also licensed in another state with which the board shares a reciprocal agreement may use board-approved continuing education in that state to meet the required six hours of continuing education for Virginia, provided that the reciprocal jurisdiction affords the same privilege to Virginia licensees.

C. 1. Each individual licensee applying for renewal shall certify that he has met the continuing education requirements of this chapter. Only continuing education courses completed during the license period immediately prior to the expiration date of the license shall be acceptable in order to renew the license.

2. Individuals Licensees shall maintain records of completion of continuing education credit hours for two years from the date of expiration of the license for which the continuing education credit hours are being used to renew the license. Individuals shall provide such records to the board or its duly authorized agents upon request.

3. Continuing education credit hours utilized to satisfy the continuing education requirements to renew a license shall be valid only for that renewal and shall not be accepted for any subsequent renewal cycles or reinstatement.

D. 1. Each individual applying for reinstatement shall provide, as part of his reinstatement application, evidence of compliance with the continuing education requirements of this chapter. The completion date of continuing education courses submitted in support of a reinstatement application shall not be more than two years old as of the date a complete reinstatement application is received by the board.

2. Continuing education credit hours utilized to satisfy the continuing education requirements in order to reinstate a license shall be valid only for that reinstatement and shall not be accepted for any subsequent renewal cycles or reinstatement.

E. Notwithstanding the provisions of subsection C of this section, continuing education hours earned during a licensing renewal cycle to satisfy the continuing education requirements of the preceding licensing renewal cycle shall be valid only for that preceding license renewal cycle and shall not be accepted for any subsequent renewal cycles or reinstatement.

18VAC25-21-280. Periodic requalification for continued course approval.

At times established by the board, the The board may require that course providers that have previously obtained course approval provide the board with evidence, in a form set forth by the board, that they continue to comply with the requirements of 18VAC25-21-230 A and 18VAC25-21-240. Failure to continue to comply with the board's requirements or respond to such a request may result in the board withdrawing its approval.

FORMS (18VAC25-21)

[ Auctioneer License By Examination Application, 2907EXLIC (rev. 11/08)

Auctioneer Surety Bond Form, 2905_07BOND (rev. 11/08)

Auctioneer License by Examination Application, 2907EXLIC (rev. 3/13)

Auctioneer Surety Bond Form, 2905_07BOND (rev. 4/10) ]

Auctioneer Firm License Application, 2908LIC (rev. 11/08)

Auction Firm Surety Bond Form, 2906_08BOND (rev. 11/08)

[ States with Approved Reciprocal Agreements, 29RECLST (rev. 11/08)

Virginia Approved Auctioneering Schools, 29SCHLST (rev. 11/08)

States with Approved Reciprocal Agreements, 29RECLST (rev. 2/12)

Virginia Approved Auctioneering Schools, 29SCHLST (rev. 9/13) ]

Auctioneering School Application for Course Approval, 29CRS (rev. 11/08)

Auctioneer License By Reciprocity Application, 2907RECLIC (rev. 11/08)

Auctioneer License Reinstatement Application, 2905_07REI (rev. 11/08)

Application for Continuing Education Course Approval, 29CECRS (rev. 11/08)

Auctioneer Firm License Renewal Form, 2906_08REN (eff. 11/08)

Individual Auctioneer License Renewal Form, 2905_07REN (eff. 11/08)

Continuing Education Medical Exemption Request, 2905_07CEXMP (eff. 11/08)

VA.R. Doc. No. R09-2002; Filed August 5, 2015, 2:11 p.m.