Section 1. That sections 505.94, 2925.01, 4707.01, 4707.02, | 10 |
4707.021, 4707.03, 4707.04, 4707.05, 4707.06, 4707.07, 4707.071, | 11 |
4707.072, 4707.08, 4707.09, 4707.10, 4707.11, 4707.111, 4707.12, | 12 |
4707.14, 4707.15, 4707.151, 4707.16, 4707.171, 4707.18, 4707.19, | 13 |
4707.20, 4707.21, 4707.22, 4707.26, and 4707.99 be amended and | 14 |
sections 4707.022, 4707.023, 4707.024, 4707.073, 4707.074, | 15 |
4707.091, and 4707.32 be enacted to read as follows: | 16 |
Sec. 505.94. (A) A board of township trustees may, by | 17 |
resolution, require the registration of all transient vendors | 18 |
within the unincorporated territory of the township and may | 19 |
regulate the time, place, and manner in which these
vendors may | 20 |
sell, offer for sale, or solicit orders for future
delivery of | 21 |
goods, or the board may, by resolution, prohibit these
activities | 22 |
within that territory. If the board
requires the registration of | 23 |
all transient vendors, it may establish a
reasonable
registration | 24 |
fee, not to exceed seventy-five dollars for a
registration period, | 25 |
and this registration shall be valid for a
period of at least | 26 |
ninety days after the date of registration.
Any board of township | 27 |
trustees that provides for the registration
and regulation, or | 28 |
prohibition, of transient vendors
under this section shall
notify | 29 |
the prosecuting attorney of the
county in which the
township is | 30 |
located of its registration and regulatory
requirements or | 31 |
prohibition. No transient
vendor shall
fail to register or to | 32 |
comply with regulations or prohibitions
established by a board of | 33 |
township trustees under this division. | 34 |
(2) "Transient vendor" means any
person who opens a temporary | 43 |
place of business for the sale of
goods or who, on the streets or | 44 |
while traveling about the
township, either sells or offers for | 45 |
sale goods,
or solicits orders for future
delivery of goods where | 46 |
payment is required prior to the delivery
of the goods. "Transient | 47 |
vendor"
does not include any
person who represents any entity | 48 |
exempted from taxation under section
5709.04 of the Revised Code, | 49 |
that notifies the board of township
trustees that its | 50 |
representatives are present in the township for
the purpose of | 51 |
either selling or offering for sale
goods, or soliciting orders | 52 |
for future delivery of goods, and does not include an auction
or | 53 |
an auctioneer
companya person licensed under Chapter 4707. of the | 54 |
Revised Code. | 55 |
(A)
"Administer,"
"controlled substance,"
"dispense," | 57 |
"distribute,"
"hypodermic,"
"manufacturer,"
"official written | 58 |
order,"
"person,"
"pharmacist,"
"pharmacy,"
"sale,"
"schedule I," | 59 |
"schedule II,"
"schedule III,"
"schedule IV,"
"schedule V," and | 60 |
"wholesaler" have the same meanings as in
section 3719.01 of the | 61 |
Revised Code. | 62 |
(1) For any compound, mixture, preparation, or substance | 70 |
included in schedule I, schedule II, or schedule III,
with the | 71 |
exception of marihuana, cocaine, L.S.D., heroin, and hashish and | 72 |
except as provided in division (D)(2) or (5) of this
section, | 73 |
whichever of the following is applicable: | 74 |
(f) An amount equal to or exceeding one hundred twenty
grams | 95 |
or thirty times the maximum daily dose in the usual dose
range | 96 |
specified in a standard pharmaceutical reference manual of
a | 97 |
compound, mixture, preparation, or substance that is or
contains | 98 |
any amount of a schedule II stimulant that is in a final
dosage | 99 |
form manufactured by a person authorized by the
"Federal
Food, | 100 |
Drug, and Cosmetic Act," 52 Stat. 1040 (1938), 21
U.S.C.A. 301, as | 101 |
amended, and the federal drug abuse control
laws, as defined in | 102 |
section 3719.01 of the Revised Code, that is or contains
any | 103 |
amount of a schedule II depressant
substance or a schedule II | 104 |
hallucinogenic substance; | 105 |
(g) An amount equal to or exceeding three
grams of a | 106 |
compound, mixture, preparation, or substance that is or contains | 107 |
any amount of a schedule II stimulant, or any of its salts or | 108 |
isomers, that is not in a final dosage form manufactured by a | 109 |
person authorized by the Federal Food, Drug, and Cosmetic Act and | 110 |
the federal drug abuse control laws. | 111 |
(1) A violation of division (A) of section 2913.02 that | 139 |
constitutes theft of drugs, or a violation of section 2925.02, | 140 |
2925.03, 2925.04,
2925.041, 2925.05, 2925.06, 2925.11, 2925.12, | 141 |
2925.13,
2925.22, 2925.23, 2925.24, 2925.31,
2925.32, 2925.36, or | 142 |
2925.37 of the Revised Code; | 143 |
(3) An offense under an existing or former law of this or
any | 148 |
other state, or of the United States, of which planting, | 149 |
cultivating, harvesting, processing, making, manufacturing, | 150 |
producing, shipping, transporting, delivering, acquiring, | 151 |
possessing, storing, distributing, dispensing, selling, inducing | 152 |
another to use, administering to another, using, or otherwise | 153 |
dealing with a controlled substance is an element; | 154 |
(1) Any compound, mixture,
preparation,
or substance the gas, | 163 |
fumes, or vapor of which when
inhaled can
induce intoxication, | 164 |
excitement, giddiness,
irrational behavior,
depression, | 165 |
stupefaction, paralysis,
unconsciousness,
asphyxiation, or other | 166 |
harmful physiological
effects, and
includes, but is not limited | 167 |
to, any of the
following: | 168 |
(J)
"Manufacture" means to plant, cultivate, harvest, | 178 |
process, make, prepare, or otherwise engage in any part of the | 179 |
production of a drug, by propagation, extraction, chemical | 180 |
synthesis, or compounding, or any combination of the same, and | 181 |
includes packaging, repackaging, labeling, and other activities | 182 |
incident to production. | 183 |
(Q)
"School" means any school operated by a board of | 225 |
education, any community school established under Chapter 3314. of | 226 |
the Revised Code, or any nonpublic school for which the state | 227 |
board of education
prescribes minimum standards under section | 228 |
3301.07 of the Revised
Code, whether or not any instruction, | 229 |
extracurricular activities,
or training provided by the school is | 230 |
being conducted at the time
a criminal offense is committed. | 231 |
(2) Any other parcel of real property that is owned or
leased | 237 |
by a board of education of a school, the governing authority of a | 238 |
community school established under Chapter 3314. of the Revised | 239 |
Code, or the governing body
of a nonpublic school for which the | 240 |
state board of education prescribes
minimum standards under | 241 |
section 3301.07 of the Revised Code and
on
which some of the | 242 |
instruction, extracurricular activities, or
training of the school | 243 |
is conducted, whether or not any
instruction, extracurricular | 244 |
activities, or training provided by
the school is being conducted | 245 |
on the parcel of real property at
the time a criminal offense is | 246 |
committed. | 247 |
(V)
"Professional license" means any license, permit, | 263 |
certificate, registration, qualification, admission, temporary | 264 |
license, temporary permit, temporary certificate, or temporary | 265 |
registration that is described in divisions (W)(1) to (36) of
this | 266 |
section and that qualifies a person as a professionally
licensed | 267 |
person. | 268 |
(8) A person who has been issued a cosmetologist's
license, | 293 |
hair designer's license,
manicurist's license, esthetician's | 294 |
license,
natural hair stylist's license, managing
cosmetologist's | 295 |
license,
managing hair designer's license, managing manicurist's | 296 |
license, managing
esthetician's
license,
managing natural hair | 297 |
stylist's license, cosmetology
instructor's license,
hair design | 298 |
instructor's license,
manicurist
instructor's license,
esthetics | 299 |
instructor's
license,
natural hair style instructor's
license, | 300 |
independent contractor's
license,
or tanning facility
permit under | 301 |
Chapter 4713. of the
Revised
Code; | 302 |
(BB) An offense is
"committed in the vicinity of a
juvenile" | 400 |
if
the offender commits the offense within one hundred feet of a | 401 |
juvenile or
within the view of a juvenile, regardless of whether | 402 |
the
offender knows the age of the juvenile, whether the offender | 403 |
knows the offense
is being committed within one hundred feet of or | 404 |
within view of the juvenile,
or whether the juvenile actually | 405 |
views the commission of the offense. | 406 |
(A) "Auction" means a method of sale of real or personal | 436 |
property,
goods, or chattels, at a predetermined date and time, by | 437 |
means of a verbal exchange, regular mail, telecommunications, the | 438 |
internet, an electronic transmission, or a physical
gesture | 439 |
between an auctioneer or apprentice auctioneer and
members of
the | 440 |
audience or prospective purchasers, the exchanges and gestures | 441 |
consisting of
a series of
invitations for offers made by the | 442 |
auctioneer and
offers by
members of the audience or prospective | 443 |
purchasers, with the right to acceptance
of offers
with the | 444 |
auctioneer or apprentice auctioneer. "Auction" includes a sale of | 445 |
real or personal property, goods, or chattels in which there has | 446 |
been a solicitation or invitation by advertisement to the public | 447 |
for an advance in bidding using sealed bidding, provided that the | 448 |
bids are opened and there is a call for an advancement of the | 449 |
bids. | 450 |
(B) "Auctioneer" means any person who engages, or who by | 451 |
advertising or otherwise holds
selfthe person out as being able | 452 |
to
engage,
in the calling for, recognition of, and the acceptance | 453 |
of,
offers
for the purchase of real or personal property, goods, | 454 |
or
chattels
at auction either directly or through the use of
other | 455 |
licensed
auctioneers or apprentice auctioneers. | 456 |
(D) "Auction company" means any person, excluding licensed | 460 |
auctioneers, who does business solely in
the auctioneer's | 461 |
individual name, who
sells, either directly or through agents, | 462 |
real or personal
property, goods, or chattels at auction, or who | 463 |
arranges,
sponsors, manages, conducts, or advertises auctions and | 464 |
who was
licensed as an auction company by the department of
| 465 |
agriculture as
of May 1, 1991. An auction company does
not mean | 466 |
either of the
following: | 467 |
(E) An auction that is sponsored by a nonprofit or charitable | 552 |
organization that is registered in this state under Chapter 1702. | 553 |
or Chapter 1716. of the Revised Code, respectively, if the auction | 554 |
only involves the property of the members of the organization and | 555 |
the auction is part of a fair that is organized by an agricultural | 556 |
society under Chapter 1711. of the Revised Code or by the Ohio | 557 |
expositions commission under Chapter 991. of the Revised Code at | 558 |
which a licensed auctioneer physically conducts the auction. | 559 |
Sec. 4707.021. Only an auctioneer who is licensed under this | 563 |
chapter and who is licensed as a real stateestate broker who is | 564 |
licensedor a real estate salesperson under Chapter 4735.
of
the | 565 |
Revised Code and who is licensed as an auctioneer under this | 566 |
chapter mayshall sign an auction
contract for the sale of real | 567 |
property at auction. A real estate broker who
is
licensed under | 568 |
Chapter 4735. of the Revised Code, but who is not licensed as an | 569 |
auctioneer under this chapter shall not sign an auction contract | 570 |
or conduct an auction, but may contract for the sale of real | 571 |
property at auction only
if either of the following applies: | 572 |
(c) A financially sound person, firm, trust, or estate, by | 617 |
execution of the auction contract or other written agreement | 618 |
provided to the auctioneer, guarantees the complete discharge and | 619 |
satisfaction of all liens and encumbrances, as applicable, | 620 |
immediately after the absolute auction or at the closing without | 621 |
regard to the amount of the highest bid or to the identity of the | 622 |
highest bidder. | 623 |
(B) For purposes of this section, a person licensed under | 672 |
this chapter shall designate a trust or escrow account that | 673 |
contains an owner's or consignee's money as "client trust account" | 674 |
or with words of similar meaning. In addition, a trust or escrow | 675 |
account only shall contain money received from the sale of | 676 |
personal property at auction that has not been disbursed and money | 677 |
for expenses regarding the auction, including commission and | 678 |
advertisement fees, that are specifically delineated in the | 679 |
auction contract. | 680 |
(C) Except for the payment of money to the owner or consignee | 681 |
immediately after the end of the auction, a person licensed under | 682 |
this chapter shall pay the owner or consignee with money from the | 683 |
client's trust or escrow account. In addition, the licensee may | 684 |
pay expenses, including commission and advertisement fees, that | 685 |
are specifically delineated in the auction contract with money | 686 |
from the trust or escrow account. Money in the trust or escrow | 687 |
account shall not be disbursed for any purpose that is | 688 |
inconsistent with this section. In addition, the money shall not | 689 |
be commingled with the licensee's personal or business money. In | 690 |
administering the trust or escrow account, the licensee shall keep | 691 |
detailed records that show deposits, withdrawals, and interest | 692 |
accrued, if applicable. | 693 |
(D) Money from the sale of personal property at auction may | 698 |
be deposited in an interest bearing account if the parties to the | 699 |
auction contract specifically agree to such a deposit. Interest | 700 |
earned in the account shall be credited to the seller unless | 701 |
otherwise agreed to by the parties in the auction listing | 702 |
contract. The interest credited to the account may remain in the | 703 |
account for a period of sixty days after the seller receives the | 704 |
money from the account. The interest money then shall be disbursed | 705 |
according to the terms of the auction contract. | 706 |
(A) The governor, with the advice and consent of the
senate, | 714 |
shall appoint a commission consisting of threefive members,
each | 715 |
of
whom immediately prior to the date of
appointment has
been a | 716 |
resident of this state for at least five years, and whose | 717 |
vocation. Four members shall have been an auctioneer
for a
period | 718 |
of at least five years has been that of an
auctioneerprior to | 719 |
appointment. One member shall be a member of the public who | 720 |
represents the interests of consumers, is not licensed under this | 721 |
chapter, does not have any management responsibility in the | 722 |
auctioneering industry, does not formulate any policy of the | 723 |
auctioneering industry, does not have a financial interest in the | 724 |
auctioneering industry, and does not have any other connection | 725 |
with the auctioneering profession.
Terms | 726 |
(B) Terms of office shall be for three years, commencing
on | 727 |
the tenth
day of October and ending on the ninth day of
October. | 728 |
EachOf the two additional appointments made after the effective | 729 |
date of this amendment, one shall be for a term ending on the | 730 |
ninth day of October in the first year following the appointment, | 731 |
and one shall be for a term ending on the ninth day of October in | 732 |
the second year following the appointment. Thereafter, each term | 733 |
of office shall be for three years, commencing on the tenth day of | 734 |
October. | 735 |
Each
member shall hold office from the date of
appointment | 736 |
until
the
end of the term for which
appointed.
Any member | 737 |
appointed to fill
a vacancy occurring prior to the
expiration of | 738 |
the term for which
the member's predecessor
was appointed
shall | 739 |
hold office for the
remainder of such term. Any member
shall | 740 |
continue in office
subsequent to the expiration date of
the | 741 |
member's
term until
the
member's successor takes office,
or until | 742 |
a
period of sixty
days
has elapsed, whichever occurs
first. A | 743 |
member appointed for a term commencing on or after October 10, | 744 |
2004, shall not serve more than three consecutive terms. | 745 |
(B) The commission shall establish requirements and standards | 755 |
for courses of study in auctioneering. The commission triennially | 756 |
shall review courses of study in auctioneering that are offered at | 757 |
institutions in order to determine whether the courses comply with | 758 |
those requirements and standards. The commission shall approve | 759 |
institutions that offer courses that comply with the requirements | 760 |
and standards. If an institution is not approved, the institution | 761 |
may reapply for approval within a year of the disapproval. If at | 762 |
that time the commission approves the institution, the institution | 763 |
shall be approved for the remainder of the triennial period. The | 764 |
commission, prior to the triennial review, may place on | 765 |
probationary status or revoke the approval of any institution that | 766 |
provides a course of study in auctioneering if the institution | 767 |
fails to comply with the requirements and standards established | 768 |
under this division. | 769 |
(E) The commission may form subcommittees for purposes of | 780 |
research, education, and promotion of the auctioneering | 781 |
profession. If a majority of the members of the commission | 782 |
approves, the members of a subcommittee may be reimbursed from the | 783 |
auction education fund created in section 4707.171 of the Revised | 784 |
Code for the actual and necessary expenses incurred in the | 785 |
discharge of their duties. | 786 |
Sec. 4707.05.
Except as otherwise provided in section | 794 |
4707.25 of the Revised Code, all fees and charges collected by the | 795 |
department of
agriculture pursuant to this chapter shall
be paid | 796 |
into the
state treasury
to the credit of the auctioneers
fund, | 797 |
which is hereby
created. All expenses incurred by the
department | 798 |
in
administering this
chapter shall be paid out of the
fund. The | 799 |
total expenses incurred by
the department in the
administration of | 800 |
this chapter shall not exceed the
total
fees,
charges, fines, and | 801 |
penalties imposed under sections 4707.08,
4707.10, and 4707.99 of | 802 |
the Revised Code and paid to the
treasurer
of state. The | 803 |
department may conduct education
programs for the
enlightenment | 804 |
and benefit of all auctioneers who
have paid fees
pursuant to | 805 |
sections 4707.08 and 4707.10 of the
Revised Code. | 806 |
At the end of each fiscal year, if the balance of the fund is | 813 |
greater than three hundred thousand dollars, the director of | 814 |
agriculture shall request the director of budget and management | 815 |
to, and the director of budget and management shall, transfer | 816 |
twenty-five per cent of the balance that is in excess of three | 817 |
hundred thousand dollars to the auction recovery fund
created in | 818 |
section 4707.25 of the Revised Code. | 819 |
Sec. 4707.06. The department of
agriculture shall
maintain
a | 820 |
record of the names
and addresses of all auction firms, | 821 |
auctioneers
and,
apprentice auctioneers, and special
auctioneers | 822 |
licensed by
the
department. This record shall also include a list | 823 |
of all
persons
whose licenses have been suspended or revoked, as | 824 |
well as
any
other information relative to the enforcement of | 825 |
sections
4707.01
to 4707.22
of
the Revised Code, asthis chapter | 826 |
that the department may deemconsiders
of
interest to the public. | 827 |
An application for an auctioneer's license filed by a | 865 |
partnership or association shall contain a listing of the names
of | 866 |
all of the licensed partners, members, or other persons who
are | 867 |
authorized to perform the functions of an auctioneer as
agents of | 868 |
the applicant. An application filed by a corporation
shall
contain | 869 |
the names of its president and of each of its
licensed
officers | 870 |
and any other person who is authorized to
perform the
functions of | 871 |
an auctioneer as an agent of the
applicant. | 872 |
(D) A licensee may do business under more than one
registered | 873 |
name if the names have been approved by the
department.
The | 874 |
department may reject the application of any
person seeking | 875 |
licensure under this chapter if the name or names
to be used by | 876 |
the applicant are likely to mislead the public, or
if the name or | 877 |
names do not distinguish the applicant from the
name or names of | 878 |
any existing person licensed under this chapter.
If an applicant | 879 |
applies to the department to do business under
more than two | 880 |
names, the department may charge a fee of ten
dollarsthat is | 881 |
established in rules adopted by the director of agriculture under | 882 |
section 4707.19 of the Revised Code for the
third name and each | 883 |
additional name. | 884 |
(D) The department, in its discretion, may waive the | 885 |
education and apprenticeship requirements for a resident of this | 886 |
state, provided that the resident holds a valid auctioneer license | 887 |
that was issued by a state with which the department has entered | 888 |
into a reciprocal licensing agreement and the resident is in good | 889 |
standing with that state. The applicant shall provide proof that | 890 |
is satisfactory to the department that the applicant has had two | 891 |
years of experience as an auctioneer immediately preceding the | 892 |
date of application that includes at a minimum twelve auctions in | 893 |
which the applicant was a bid caller in the reciprocal state. | 894 |
Sec. 4707.071. (A) On May 1, 1991, all persons licensed
as | 895 |
auction companies under former section 4707.071 of the Revised | 896 |
Code shall comply with all provisions of this chapter that are | 897 |
applicable to auctioneers except as provided in divisions (B) and | 898 |
(C) of this section. Such persons, however, do not have to serve | 899 |
an apprenticeship or attend a course of study under section | 900 |
4707.09 of the Revised Code or submit to an examination under | 901 |
section 4707.08 of the Revised Code as long as they do not engage | 902 |
in the calling for, recognition of, and the acceptance of, offers | 903 |
for the purchase of personal property at auction and do not | 904 |
conduct auctions at any location other than the definite place of | 905 |
business required in section 4707.14 of the Revised Code. | 906 |
(B) The principal owner of each auction company that is | 907 |
licensed as of May 1, 1991, who pays the annual renewal fee | 908 |
specified in division (B) of section 4707.10 of the Revised Code | 909 |
during the first renewal period following May 1, 1991, shall be | 910 |
issued a special auctioneer's license, for the saleauction of | 911 |
personal
property subject to division (A) of this section. Each | 912 |
principal
owner shall apply for an annual license. In applying for | 913 |
an
annual license, each person licensed as an auction company on | 914 |
May
1, 1991, shall designate an individual as principal owner by | 915 |
submitting documentation substantiating that the individual is in | 916 |
fact the principal owner and shall identify a definite place of | 917 |
business as required in section 4707.14 of the Revised Code. A | 918 |
person licensed as an auctioneer shall not be entitled to a | 919 |
special auctioneer's license. | 920 |
(C) A special auctioneer's license issued under this
section | 921 |
to the principal owner of a former auction company does
not | 922 |
entitle the principal owner or former auction company to
conduct | 923 |
auctions at any location other than the definite place of
business | 924 |
required in section 4707.14 of the Revised Code.
Notwithstanding | 925 |
section 4707.10 of the Revised Code, the
department
of agriculture | 926 |
shall not issue a new special auctioneer's license if
the definite | 927 |
place of business identified by the licensee in the
licensee's | 928 |
initial application for a special auctioneer license
has changed | 929 |
or if the name under which the licensee is doing
business has | 930 |
changed. No person other than an owner, officer,
member, or agent | 931 |
of the former auction company who
personally has
passed
the | 932 |
examination prescribed in section 4707.08 of the
Revised Code
and | 933 |
been licensed as an auctioneer shall engage in
the calling
for, | 934 |
recognition of, and the acceptance of, offers
for the
purchase of | 935 |
real or personal property, goods, or chattels
at
auction in | 936 |
connection with a former auction company that has
been
issued a | 937 |
special auctioneer's license. | 938 |
(B) The department may
grant
one-auction licenses to any | 949 |
nonresident person deemedindividual who is determined to be | 950 |
qualified
by
the department. Any personindividual who applies for | 951 |
a
one-auction
license
shall attest, on forms provided by the | 952 |
department, and
furnish to
the department, satisfactory proof that | 953 |
the license
applicant or
any auctioneer affiliated with the | 954 |
applicant meets
the following
requirements: | 955 |
(7)(8) Has provided proof of
financial responsibility
in the | 969 |
form of either an irrevocable letter of credit or a cash bond or a | 970 |
surety bond in the amount of
fifty
thousand dollars. If the | 971 |
applicant gives a surety
bond, the bond
shall be executed by a | 972 |
surety company authorized to
do business in
this state. A bond | 973 |
shall be made to the department and
shall be conditioned that the | 974 |
applicant shall comply with this
chapter and rules adopted under | 975 |
it, including refraining from
conduct described in section 4707.15 | 976 |
of the Revised Code. All
bonds shall be on a form approved by the | 977 |
director of agriculture. | 978 |
(2) Not later than two years after the effective date of this | 1023 |
section, a corporation, partnership, or unincorporated association | 1024 |
that was issued a license under section 4707.07 of the Revised | 1025 |
Code on or before the effective date of this section shall comply | 1026 |
with the requirements established in division (D)(1) of this | 1027 |
section. If such a corporation, partnership, or unincorporated | 1028 |
association fails to comply with those requirements, the license | 1029 |
of the corporation, partnership, or unincorporated association | 1030 |
immediately shall terminate. | 1031 |
(E) Upon the issuance of a license under this section, a | 1032 |
corporation, partnership, or unincorporated association shall | 1033 |
designate an individual from among its directors, partners, or | 1034 |
members who is licensed under section 4707.07 of the Revised Code | 1035 |
as its agent for purposes of communication with the department. If | 1036 |
that individual ceases to be the agent, the corporation, | 1037 |
partnership, or unincorporated association shall notify the | 1038 |
department not later than ten days after the day on which the | 1039 |
individual ceases to be the agent. Upon notification to the | 1040 |
department, the license of the corporation, partnership, or | 1041 |
unincorporated association, as applicable, immediately shall | 1042 |
terminate. If the corporation, partnership, or unincorporated | 1043 |
association notifies the department of the designation of a new | 1044 |
agent in accordance with the requirements of this division and | 1045 |
pays the fee established by the director of agriculture in rules | 1046 |
adopted under section 4707.19 of the Revised Code, the department | 1047 |
shall issue the corporation, partnership, or unincorporated | 1048 |
association a new license. | 1049 |
(F) For purposes of this section, the director may adopt | 1050 |
rules under section 4707.19 of the Revised Code establishing | 1051 |
license fees and procedures and deadlines for the issuance of a | 1052 |
license under this section. Until the director adopts those rules, | 1053 |
a license issued under this section shall take effect on July 1 of | 1054 |
one year and expire on June 30 of the following year, and the fee | 1055 |
for an initial and renewal license shall be one hundred dollars. | 1056 |
In addition, a license shall be renewed before July 1 of each | 1057 |
year, except that a license may be renewed before September 1 of | 1058 |
the year of expiration if the licensee pays the renewal fee and an | 1059 |
additional fee of one hundred dollars. | 1060 |
(D) An auction firm shall designate a firm manager. The firm | 1102 |
manager shall have sufficient authority in the operation of the | 1103 |
auction firm to ensure compliance with this chapter and rules | 1104 |
adopted under it. If the firm manager does not have a current | 1105 |
license issued under section 4707.07 of the Revised Code, the firm | 1106 |
manager shall pass the written examination held under section | 1107 |
4707.08 of the Revised Code before the department may issue a | 1108 |
license under this section to the auction firm. | 1109 |
(2) Not later than ten days prior to the date on which an | 1126 |
auction firm license will terminate pursuant to division | 1127 |
(E)(1)(a), (b), (c), or (d) of this section, the auction firm may | 1128 |
submit an application for a new auction firm license in accordance | 1129 |
with division (B) of this section. If the auction firm submits the | 1130 |
application, returns the terminated license, and pays the fee | 1131 |
established in rules adopted by the director of agriculture under | 1132 |
section 4707.19 of the Revised Code, the department may issue a | 1133 |
new license under this section. | 1134 |
(3) If a license terminates pursuant to division (E)(1)(e), | 1135 |
(f), or (g) of this section and the formerly licensed auction firm | 1136 |
notifies the department, returns the terminated license, and pays | 1137 |
the fee established in rules adopted by the director under section | 1138 |
4707.19 of the Revised Code, the department shall issue a new | 1139 |
license under this division. | 1140 |
(F) For purposes of this section, the director may adopt | 1141 |
rules under section 4707.19 of the Revised Code establishing | 1142 |
license fees and procedures and deadlines for the issuance of a | 1143 |
license under this section. Until the director adopts those rules, | 1144 |
a license issued under this section shall take effect on July 1 of | 1145 |
one year and expire on June 30 of the following year, and the fee | 1146 |
for an initial and renewal license shall be one hundred dollars. | 1147 |
In addition, a license shall be renewed before July 1 of each | 1148 |
year, except that a license may be renewed before September 1 of | 1149 |
the year of expiration if the licensee pays the renewal fee and an | 1150 |
additional fee of one hundred dollars. | 1151 |
(G) For purposes of the financial responsibility that is | 1152 |
required under division (B) of this section, if a person provides | 1153 |
a surety bond, the bond shall be executed by a surety company that | 1154 |
is authorized to do business in this state. The bond shall be made | 1155 |
payable to the department and shall include a condition that | 1156 |
requires the applicant to comply with this chapter and rules | 1157 |
adopted under it, including a requirement that the person refrain | 1158 |
from conduct described in section 4707.15 of the Revised Code. A | 1159 |
bond shall be on a form that is approved by the director. A person | 1160 |
who is issued a license under this section shall maintain the | 1161 |
financial responsibility that is required under division (B) of | 1162 |
this section for as long as the person is licensed. | 1163 |
Sec. 4707.08. (A) The department of
agriculture
shall hold | 1167 |
written examinations four times each year for the
purpose of | 1168 |
testing the qualifications required for obtaining a
license under | 1169 |
section 4707.07 of the Revised Code and twelve times
each year
for | 1170 |
obtaining a license under section 4707.09 of the
Revised
Code and | 1171 |
for unlicensed auction firm managers as required under division | 1172 |
(D) of section 4707.074 of the Revised Code. The written | 1173 |
examination shall be held at the department or at an alternative | 1174 |
location determined by the department. In
addition to the written | 1175 |
examination, auctioneer
license
applicants
shall pass an oral | 1176 |
examination administered by
the
state
auctioneers commission on | 1177 |
the same date and at the same
location
as the written examination. | 1178 |
An examination shall not be
required
for the renewal of any | 1179 |
license unless suchthe license has
been
revoked, suspended, or | 1180 |
allowed to expire without renewal, in
which
case the applicant | 1181 |
shall take and pass the appropriate
examinations offered by the | 1182 |
department. | 1183 |
An examination fee of twenty-five dollars shall be
collected | 1184 |
from each person taking the auctioneer examination and
fifteen | 1185 |
dollars from each person taking, the apprentice auctioneer | 1186 |
examination, and the auction firm manager examination to defray | 1187 |
expenses of holding suchthe examinations. Unless otherwise | 1188 |
established in rules adopted by the director of agriculture under | 1189 |
section 4707.19 of the Revised Code, the fee for the apprentice | 1190 |
auctioneer examination and the firm manager examination shall be | 1191 |
fifteen dollars, and the fee for the auctioneer examination shall | 1192 |
be twenty-five dollars. | 1193 |
(C) If a court of competent jurisdiction or the department, | 1201 |
at an administrative hearing, has found that an applicant | 1202 |
conducted an auction, provided auction services, or acted as an | 1203 |
auctioneer without a license issued under this chapter, the | 1204 |
department may refuse to allow the applicant to take an | 1205 |
examination under this section or may deny the issuance of a | 1206 |
license to the applicant for a period of two years. | 1207 |
Sec. 4707.09. The department of
agriculture may
grant | 1225 |
apprentice auctioneers' licenses to those persons deemedthat are | 1226 |
determined to be
qualified
by the department. Every applicant for | 1227 |
an apprentice
auctioneer's
license
shall pass an examination | 1228 |
relating to the
skills,
knowledge, and statutes and
rules | 1229 |
governing
auctioneers.
Every applicant for an apprentice | 1230 |
auctioneer's
license shall
furnish to the department, on forms | 1231 |
provided by the
department,
satisfactory proof that the applicant: | 1232 |
Before an apprentice may take the auctioneer's license | 1247 |
examination,
the apprentice shall serve an apprenticeship of
at | 1248 |
least twelve
months, successfully complete a course of study in | 1249 |
auctioneering
at an institution that is approved every three years | 1250 |
by the state
auctioneers commission, and conduct,participate as a | 1251 |
bid caller,in
at least
twelve auction sales under the direct | 1252 |
supervision of the
sponsoring licensed auctioneer, which sales | 1253 |
auctions shall be certified by
the licensed auctioneer on the | 1254 |
apprentice's application for an
auctioneer's license. | 1255 |
If an auctioneer intends to terminate
sponsorship of an | 1256 |
apprentice auctioneer, the sponsoring auctioneer shall notify the | 1257 |
apprentice auctioneer of
the sponsoring auctioneer's
intention
by | 1258 |
certified mail, return
receipt requested, at least ten days
prior | 1259 |
to the effective date
of termination and, at the same time,
shall | 1260 |
deliver or mail by
certified mail to the department of
agriculture | 1261 |
a copy of the
termination notice and the
license of
the apprentice | 1262 |
auctioneer.
No apprentice auctioneer
shall perform
any acts under | 1263 |
authority
of
the apprentice's
license after the
effective date of | 1264 |
the
termination until
the
apprentice receives a
new license | 1265 |
bearing the name and
address of
the apprentice's new
sponsor. No | 1266 |
more than one license shall
be issued to any
apprentice auctioneer | 1267 |
for the same period of
time. | 1268 |
No licensed auctioneer shall have under
the licensed | 1269 |
auctioneer's sponsorship
more than two apprentice auctioneers at | 1270 |
one time. No auctioneer shall sponsor an apprentice auctioneer if | 1271 |
the auctioneer has not been licensed and in good standing for a | 1272 |
period of at least two years immediately before sponsoring the | 1273 |
apprentice auctioneer. A sponsoring auctioneer whose license is | 1274 |
suspended or revoked shall send to the department the apprentice | 1275 |
auctioneer's license not later than fourteen days after the | 1276 |
suspension or revocation. If a sponsoring auctioneer's license is | 1277 |
suspended or revoked, the apprentice auctioneer shall obtain a | 1278 |
written promise of sponsorship from another licensed auctioneer | 1279 |
before performing any acts under the authority of an apprentice | 1280 |
auctioneer's license. The apprentice auctioneer shall send a copy | 1281 |
of the written promise of sponsorship of another auctioneer to the | 1282 |
department. If the department receives a copy of such a written | 1283 |
promise of sponsorship and the apprentice pays the fee established | 1284 |
by the department, the department shall issue a new license to the | 1285 |
apprentice. | 1286 |
An apprentice auctioneer may terminate
the apprentice's | 1287 |
sponsorship with
an auctioneer by notifying the auctioneer of
the | 1288 |
apprentice's intention by
certified mail, return receipt | 1289 |
requested, at least ten days prior
to the effective date of | 1290 |
termination. At the same time,
the
apprentice shall
deliver or | 1291 |
mail by certified mail to the department of
agriculture a
copy of | 1292 |
the termination notice. Upon receiving the termination
notice,
the | 1293 |
sponsoring auctioneer shall promptly deliver or mail
by
certified | 1294 |
mail to the department the license of the apprentice
auctioneer. | 1295 |
Sec. 4707.091. (A) Prior to the expiration of an auctioneer's | 1302 |
or apprentice auctioneer's license, an auctioneer or apprentice | 1303 |
auctioneer may submit an application to the department of | 1304 |
agriculture, on forms provided by the department, to place the | 1305 |
license on deposit with the department for a period not to exceed | 1306 |
two years. Not later than fourteen days after receipt of an | 1307 |
application under this section, the department shall accept or | 1308 |
deny the application. | 1309 |
(D) If an auctioneer or apprentice auctioneer, at the time of | 1335 |
placing the auctioneer's or apprentice auctioneer's license on | 1336 |
deposit, as applicable, has not maintained proof of financial | 1337 |
responsibility for the entire period of time required under | 1338 |
section 4707.11 of the Revised Code, the auctioneer or apprentice | 1339 |
auctioneer, beginning at the time of reacquisition, shall maintain | 1340 |
proof of financial responsibility for the remainder of the time | 1341 |
required under that section. | 1342 |
Sec. 4707.10. (A) For purposes of this section, the | 1343 |
department of agriculture shall adopt rules in accordance with | 1344 |
section 4707.19 of the Revised Code prescribing fees that | 1345 |
licensees must pay and license renewal deadlines and procedures | 1346 |
with which licensees must comply. Until those rules are adopted, | 1347 |
licensees shall pay the fees and comply with the license renewal | 1348 |
deadlines and procedures established in this section. | 1349 |
(B) The fee for each auctioneer's,
apprentice
auctioneer's, | 1350 |
or special auctioneer's license issued
by the
department is one | 1351 |
hundred dollars, and the
annual
renewal fee for any such license | 1352 |
is one hundred dollars.
All
licenses expire annually on the last | 1353 |
day of June of each year
and
shall be renewed according to the | 1354 |
standard renewal procedures
of
Chapter 4745. of the Revised Code, | 1355 |
or the procedures of this
section. Any licensee under this chapter | 1356 |
who wishes to renew
the
licensee's
license, but fails to do so | 1357 |
before the first day of
July
shall
reapply for licensure in the | 1358 |
same manner and pursuant
to the
same
requirements as for initial | 1359 |
licensure, unless before
the
first
day of September of the year of | 1360 |
expiration, the former
licensee
pays to the department, in | 1361 |
addition to the regular
renewal fee, a
late renewal penalty of one | 1362 |
hundred dollars. | 1363 |
(C) Any person who fails to renew
the person's license
before | 1364 |
the
first day of July is prohibited from engaging in any
activity | 1365 |
specified or comprehended in section 4707.01 of the
Revised Code | 1366 |
until such time as
the person's license is
renewed
or a new | 1367 |
license is
issued. Renewal of a license between
the
first day of | 1368 |
July and
the first day of September does not
relieve
any person | 1369 |
from
complying with this division. The
department may
refuse to | 1370 |
renew
the license of or issue a new
license to any
person who | 1371 |
violates
this division. | 1372 |
(E) Notice in writing shall be given to the department by | 1380 |
each auctioneer or apprentice auctioneer licensee of any change
of | 1381 |
principal business location or any change or addition to the
name | 1382 |
or names under which business is conducted, whereupon the | 1383 |
department shall issue a new license for the unexpired period.
Any | 1384 |
change of business location or change or addition of names
without | 1385 |
notification to the department shall automatically cancel
any | 1386 |
license previously issued. For each new auctioneer or
apprentice | 1387 |
auctioneer license issued upon the occasion of a
change in | 1388 |
business location or a change in or an addition of
names under | 1389 |
which business is conducted, the department may
collect a fee of | 1390 |
ten dollars for each change in location, or name
or each added | 1391 |
name unless the notification of the change occurs
concurrently | 1392 |
with the renewal application or unless otherwise provided in | 1393 |
section 4707.07 of the Revised Code. | 1394 |
Sec. 4707.11. (A) Except as provided in division (B) of this | 1398 |
section, each application for a license issued under
this chapter | 1399 |
shall be accompanied by proof of financial
responsibility in the | 1400 |
form of either an irrevocable letter of credit or a cash bond or a | 1401 |
surety bond in the amount of
twenty-five
thousand dollars. If the | 1402 |
applicant gives a surety
bond, the bond
shall be executed by a | 1403 |
surety company authorized to
do business in
this state. | 1404 |
(2) An apprentice auctioneer licensee whose license was | 1431 |
issued under section 4707.09 of the Revised Code prior to July 1, | 1432 |
2003, and who applies for an auctioneer's license under section | 1433 |
4707.07 of the Revised Code on or after July 1, 2003, provided | 1434 |
that the apprentice auctioneer's license is not suspended under | 1435 |
section 4707.15 or 4707.30 of the Revised Code, and, if necessary, | 1436 |
continues to be renewed under section 4707.10 of the Revised Code, | 1437 |
prior to the issuance of the auctioneer's license to the | 1438 |
applicant; | 1439 |
By enactment of this chapter, it is the intent of the general | 1446 |
assembly to
preempt municipal corporations and other political | 1447 |
subdivisions from the
regulation and licensing of auctioneers, | 1448 |
auction firms, and
auction sales. An ordinance, resolution, or | 1449 |
other enactment by a municipal corporation or other political | 1450 |
subdivision that directly or indirectly regulates auctioneers, | 1451 |
auction firms, or auction sales is hereby preempted. | 1452 |
At least twenty-four hours prior to an auction that is to be | 1453 |
held at a location that is not the permanent business location of | 1454 |
the auctioneer, the person
licensed under this
chapter to conduct | 1455 |
the auctionauctioneer shall notify
the chief of police of the | 1456 |
municipal corporation in which the
auction site is located, or, if | 1457 |
the site is
in the unincorporated
area of a county, the county | 1458 |
sheriff as to the location
and time
of the auction and give to | 1459 |
that officer a general description of
the
items offered for sale. | 1460 |
The department of
agriculture may, within its
discretion, | 1464 |
waive the testing and schooling requirements for a
nonresident, | 1465 |
provided
that the nonresident holds a valid auctioneer
or | 1466 |
apprentice
auctioneer
license issued by a state with which the | 1467 |
department has
entered
into a reciprocal licensing agreement. | 1468 |
Nonresidents
wishing to
so operate in this state shall make | 1469 |
application in
writing to the
department and furnish the | 1470 |
department with proof of
their ability
to conduct an auction, | 1471 |
proof of license and bond if
they reside
in a state with these | 1472 |
requirementsfinancial responsibility, as well as other | 1473 |
information
whichthat the department
may request. If a state with | 1474 |
which the department has entered into a reciprocal licensing | 1475 |
agreement does not require an apprenticeship, the applicant shall | 1476 |
provide proof of license for a period of at least one year prior | 1477 |
to receipt of the application. | 1478 |
(E) Failing to account for or remit, within a reasonable | 1511 |
time, any money or property belonging to others that comes into
| 1512 |
the
licensee's
possession, and for commingling funds of others | 1513 |
with
the
licensee's own, or
failing to keep such funds of others | 1514 |
in
an
escrow or trusteetrust
account, except that in the case of | 1515 |
a
transaction involving real
estate, such funds shall be | 1516 |
maintained
in accordance with
division (A)(26) of section 4735.18 | 1517 |
of the
Revised Code; | 1518 |
Sec. 4707.16. (A) The department of
agriculture
may, upon | 1575 |
its own motion, and shall, upon the verified written
complaint of | 1576 |
any person, investigate the actions of any auction firm, | 1577 |
auctioneer, apprentice
auctioneer, or special auctioneer, any | 1578 |
applicant for an auction firm's,
auctioneer's, apprentice | 1579 |
auctioneer's, or special
auctioneer's
license, or any person who | 1580 |
assumes to act in that
capacity, if
the
complaint, together with | 1581 |
other evidence presented
in
connection
with it, makes out a | 1582 |
prima-facie case. | 1583 |
If the department determines that any such applicant is not | 1584 |
entitled to receive a license, a license shall not be granted to | 1585 |
suchthe applicant, and if the department determines that any | 1586 |
licensee
is guilty of a violation of section 4707.14 or 4707.15
of | 1587 |
the
Revised Code, the department may suspend or revoke the | 1588 |
license.
Any auction firm, auctioneer, apprentice auctioneer, or | 1589 |
special
auctioneer who
has had
the auction firm's, auctioneer's, | 1590 |
apprentice
auctioneer's, or special
auctioneer's license revoked | 1591 |
shall not be issued
another such
license for a period of two years | 1592 |
from the date of
revocation. | 1593 |
(B) The department
may investigate
complaints
concerning
the | 1594 |
violation of sections 4707.02 and
4707.15 of the
Revised Code
and | 1595 |
may subpoena witnesses in
connection with such
investigations
as | 1596 |
provided in this section.
The department may
make application
to | 1597 |
the court of common pleas
for an order
enjoining the violation
of | 1598 |
sections 4707.02 and
4707.15 of the
Revised Code, and upon a | 1599 |
showing by the department
that any
licensed auction firm, | 1600 |
auctioneer, apprentice
auctioneer, or special
auctioneer
has | 1601 |
violated or is about to
violate section 4707.15 of
the
Revised | 1602 |
Code, or any person has
violated or is about to
violate
section | 1603 |
4707.02 of the Revised
Code, an injunction,
restraining
order, or | 1604 |
other order as may be
appropriate shall be
granted by
the court. | 1605 |
(C) The department
may compel by subpoena the
attendance of | 1606 |
witnesses to testify in relation to any matter over
which it has | 1607 |
jurisdiction and whichthat is the subject of inquiry and | 1608 |
investigation
by it, and require the production of any book, | 1609 |
paper, or document
pertaining to suchthat matter. In case any | 1610 |
person
fails to file any
statement or report, obey any subpoena, | 1611 |
give
testimony, or produce
any books, records, or papers as | 1612 |
required
by
such a subpoena, the
court of common pleas of any | 1613 |
county in
the
state, upon application
made to it by the | 1614 |
department, shall
compel
obedience by attachment
proceedings for | 1615 |
contempt, as in
the case
of disobedience of the
requirements of a | 1616 |
subpoena issued
from suchthat
court, or a refusal to
testify | 1617 |
therein. | 1618 |
(D) When the department determines that a person not
licensed | 1619 |
under this chapter is engaged in or is believed to be
engaged in | 1620 |
activities for which a license is required under this
chapter, the | 1621 |
department may issue an order to that person
requiring
the person | 1622 |
to show cause as to why
the person
should
not be subject to | 1623 |
licensing under this chapter. If the
department, after a
hearing, | 1624 |
determines that the activities in
which the person is
engaged are | 1625 |
subject to licensing under this
chapter, the
department may issue | 1626 |
a cease-and-desist order whichthat
shall
describe the person and | 1627 |
activities whichthat are subject to the
order. A cease-and-desist | 1628 |
order issued under this section shall
be enforceable in and may be | 1629 |
appealed to the common pleas courts
of this state under Chapter | 1630 |
119. of the Revised Code. | 1631 |
(E) In addition to the remedies provided under this section | 1632 |
and irrespective of whether an adequate remedy at law exists, the | 1633 |
department may apply to a court of common pleas for a temporary or | 1634 |
permanent injunction or other appropriate relief for continued | 1635 |
violations of this chapter. For purposes of this division, the | 1636 |
court of common pleas shall be the court of common pleas of | 1637 |
Licking county or the court of common pleas of the county where | 1638 |
the violation occurs. | 1639 |
Sec. 4707.171. There is hereby created in the state
treasury | 1644 |
the auction education fund. SevenUnless otherwise provided in | 1645 |
rules adopted by the director of agriculture under section 4707.19 | 1646 |
of the Revised Code, seven dollars and fifty
cents of each fee | 1647 |
collected for an initial or renewed auction firm's,
auctioneer's, | 1648 |
apprentice auctioneer's, or special auctioneer's license shall be | 1649 |
credited to the auction education
fund. All interest earned on | 1650 |
moneys deposited in the state treasury to the credit of the | 1651 |
auction
education fund shall be credited to the fund. | 1652 |
Sec. 4707.18. No person engaged in the business of, or | 1660 |
acting in the capacity
of, an auction firm, auctioneer, or special | 1661 |
auctioneer shall bring or maintain any action in
the courts of | 1662 |
this state for the collection of compensation for any services | 1663 |
performed as an auction firm or auctioneer without first alleging | 1664 |
and proving that the person
was a duly licensed auction firm, | 1665 |
auctioneer, or special auctioneer at the time the alleged
cause of | 1666 |
action arose. | 1667 |
(B) The director shall adopt rules that establish a schedule | 1678 |
of civil penalties for violations of this chapter, rules adopted | 1679 |
under it, or orders issued under it. The rules shall provide that | 1680 |
the civil penalty for the first violation of this chapter, rule, | 1681 |
or order shall not exceed five thousand dollars and the civil | 1682 |
penalty for each subsequent offense shall not exceed ten thousand | 1683 |
dollars. In addition, the director, in establishing the schedule | 1684 |
of civil penalties in the rules, shall consider past violations of | 1685 |
this chapter and rules adopted under it, the severity of a | 1686 |
violation, and the amount of actual or potential damage to the | 1687 |
public or the auction profession. | 1688 |
(D) The department
of
agriculture may hear testimony in | 1698 |
matters
relating to
the duties
imposed on it, and any person | 1699 |
authorized by the
director
may administer oaths. The
department | 1700 |
may
require
other proof of
the honesty, truthfulness,
and good | 1701 |
reputation of
any person named in the
application for an auction | 1702 |
firm's,
auctioneer's,
apprentice auctioneer's, or special | 1703 |
auctioneer's
license before
admitting the applicant to an | 1704 |
examination or
issuing a license. | 1705 |
Sec. 4707.20. (A) No person shall act as an auction firm, | 1706 |
auctioneer, or
special auctioneer on a sale at auction until the | 1707 |
person has
first
entered into a written contract or agreement in | 1708 |
duplicate with
the
owner or consignee of any property to be sold, | 1709 |
containing the
terms and conditions upon which the licensee | 1710 |
receives or accepts
the property for sale at auction. The | 1711 |
contracts or agreements
shall, for a period of two years, be kept | 1712 |
on file in the office
of
every person so licensed. No apprentice | 1713 |
auctioneer shall be
authorized to enter into such a contract or | 1714 |
agreement without the
written consent of the apprentice | 1715 |
auctioneer's sponsoring
auctioneer, and all contracts or | 1716 |
agreements shall be made in the
name of and on behalf of the | 1717 |
sponsoring auctioneer. In addition, an apprentice auctioneer shall | 1718 |
not enter into an auction contract for the sale of real property | 1719 |
in the name of the sponsoring auctioneer regardless of whether the | 1720 |
apprentice auctioneer is licensed as a real estate broker or | 1721 |
salesperson. | 1722 |
(B) On all contracts or agreements between an auction firm, | 1723 |
auctioneer,
or
special auctioneer and the owner or consignee, | 1724 |
there shall
appear
a prominent statement indicating that the | 1725 |
auction firm, auctioneer, or
special
auctioneer is licensed by the | 1726 |
department of
agriculture,
and either that the licensee is
bonded | 1727 |
in favor of the state or that an aggrieved person may initiate a | 1728 |
claim against the auction recovery fund created in section 4707.25 | 1729 |
of the Revised Code as a result of the licensee's actions, | 1730 |
whichever is applicable. | 1731 |
Sec. 4707.21. No auction firm, auctioneer, apprentice | 1764 |
auctioneer, or
special
auctioneer
shall willfully neglect or | 1765 |
refuse to furnish
the department of
agriculture
statistics or | 1766 |
other
information in
the auction firm's, auctioneer's, apprentice | 1767 |
auctioneer's, or
special auctioneer's
possession or under
the | 1768 |
auction firm's, auctioneer's,
apprentice auctioneer's, or
special | 1769 |
auctioneer's
control, whichthat
the auction firm, auctioneer, | 1770 |
apprentice
auctioneer, or special auctioneer
is
authorized to | 1771 |
collect; nor
shall
the auction firm, auctioneer, apprentice | 1772 |
auctioneer, or special
auctioneer neglect or refuse, for
more than | 1773 |
thirty days, to answer
questions submitted on circulars; nor
shall
| 1774 |
the auction firm, auctioneer,
apprentice auctioneer, or special | 1775 |
auctioneer
knowingly
answer any
such questions falsely; nor shall
| 1776 |
the
auction firm, auctioneer,
apprentice
auctioneer, or special | 1777 |
auctioneer refuse to
obey
subpoenas and
give testimony. Licensees | 1778 |
shall keep records
relative to any
auction sale for
at least two | 1779 |
years from the date
of saleauction. These
records shall
include | 1780 |
settlement sheets, written
contracts, and
copies of any | 1781 |
advertising that lists
the items for
saleauction, as applicable. | 1782 |
Sec. 4707.22. (A) Any auctioneer, apprentice auctioneer, or | 1783 |
special auctioneerperson
licensed under this chapter who | 1784 |
advertises, by linear advertisements or
otherwise, to hold or | 1785 |
conduct an auction shall indicate in suchthe advertisement
his | 1786 |
the licensee's name or the name registered with the department of | 1787 |
agriculture and that hethe licensee
is an auctioneer or | 1788 |
apprentice auctioneer. Any
apprentice
auctioneer who advertises, | 1789 |
as provided in this section, must also shall indicate in
histhe | 1790 |
apprentice's advertisement the name of the auctioneer
under whom | 1791 |
hethe apprentice is licensed. The
name of the auctioneer shall be | 1792 |
displayed in equal prominence with the name of
the apprentice | 1793 |
auctioneer in suchthe advertisement. Any such licensee who | 1794 |
advertises in a manner other than as provided in this section is | 1795 |
guilty of
violating division (C) of section 4707.15 of the Revised | 1796 |
Code. | 1797 |
(B) An auction firm licensed under this chapter that | 1798 |
advertises, by linear advertisements or otherwise, to solicit or | 1799 |
receive consignments or to provide auction services shall indicate | 1800 |
in the advertisement the name of the auction firm. In addition, an | 1801 |
advertisement of an auction of consignments or an advertisement by | 1802 |
an auction firm of an auction for which the auction firm will | 1803 |
provide auction services shall comply with divisions (A) and (D) | 1804 |
of this section. | 1805 |
Sec. 4707.26. (A)(1) A person who asserts that they havethe | 1838 |
person has
been aggrieved by the actions of a person licensed | 1839 |
under this
chapter that resulted in actual and direct losses to | 1840 |
the aggrieved
person may initiate a claim against the auction | 1841 |
recovery fund
either under this section or section 4707.261 of the | 1842 |
Revised Code.
If an aggrieved person who wishes to seek recovery | 1843 |
from the
auction recovery fund has obtained a final judgment in a | 1844 |
court of
competent jurisdiction against the licensee, the | 1845 |
aggrieved person
shall initiate the claim in accordance with | 1846 |
section 4707.261 of
the Revised Code. If an aggrieved person who | 1847 |
wishes to seek
recovery from the auction recovery fund has not | 1848 |
obtained a final
judgment in a court of competent jurisdiction | 1849 |
against the
licensee, the aggrieved person shall initiate the | 1850 |
claim in
accordance with this section. | 1851 |
To initiate a claim against the fund, an aggrieved person | 1861 |
shall file a verified complaint with the department of agriculture | 1862 |
in accordance with section 4707.16 of the Revised Code. The | 1863 |
verified complaint shall include an application to the department | 1864 |
that requests recovery of the applicant's actual and direct losses | 1865 |
and that is made on forms that the department provides. The | 1866 |
application for recovery shall specify the nature of the act or | 1867 |
transaction on which the applicant's claim is based, the actual | 1868 |
and direct losses sustained by the applicant, and any activities | 1869 |
that the applicant has pursued as a remedy for the losses. | 1870 |
(B) Upon receipt of a verified compliantcomplaint and | 1871 |
application,
the department shall conduct an investigation in | 1872 |
accordance with
section 4707.16 of the Revised Code. After the | 1873 |
investigation, if
the department determines that the licensee has | 1874 |
engaged in conduct
described in section 4707.15 of the Revised | 1875 |
Code or otherwise has
violated this chapter or rules adopted under | 1876 |
it, the department
shall propose to take action to suspend or | 1877 |
revoke the licensee's
license under section 4707.15 of the Revised | 1878 |
Code or to initiate a
criminal action against the licensee under | 1879 |
section 4707.99 of the
Revised Code, or both. The department shall | 1880 |
issue a letter to the
applicant indicating the department's | 1881 |
proposed action and the date
of any hearing that the department | 1882 |
has scheduled regarding the
matter. | 1883 |
(C) Upon exhaustion of administrative remedies or
criminal | 1884 |
proceedings that results in a finding that the licensee
has | 1885 |
engaged in conduct described in section 4707.15 of the Revised | 1886 |
Code or otherwise has violated this chapter or rules adopted under | 1887 |
it, the department shall issue a notice in accordance with Chapter | 1888 |
119. of the Revised Code via certified mail to the applicant | 1889 |
indicating that the applicant may request a hearing for relief | 1890 |
from the auction recovery fund. An applicant who seeks recovery | 1891 |
from the fund of any actual and direct losses suffered as a result | 1892 |
of a licensee's conduct shall submit, not later than thirty days | 1893 |
following receipt of the notice, a request for a hearing to the | 1894 |
department. | 1895 |
Upon the timely receipt of a request for a hearing, the | 1896 |
department shall provide the applicant with the opportunity to | 1897 |
appear at an adjudication hearing to offer proof and evidence of | 1898 |
the actual and direct losses. Whenever possible, the department | 1899 |
shall require all applicants whose claims to the fund arose from | 1900 |
an underlying transaction involving the same licensee to be joined | 1901 |
in one adjudication under this section so that the rights of all | 1902 |
applicants may be equitably adjudicated and settled. On behalf of | 1903 |
the fund, the department may defend claims against the fund and | 1904 |
shall have recourse to all appropriate means of defense and | 1905 |
review, including examination of witnesses, and verification of | 1906 |
actual losses. | 1907 |
The recommendation of the hearing officer may be approved, | 1953 |
modified, or disapproved by order of the director of agriculture. | 1954 |
The order shall not be issued until more than ten days have | 1955 |
elapsed following the applicant's receipt of the report and | 1956 |
recommendation as provided by this section. The director's | 1957 |
approval, modification, or disapproval of the hearing officer's | 1958 |
recommendation shall have the same effect as if the hearing had | 1959 |
been conducted by the director. | 1960 |
After an order is entered on its journal, the department | 1967 |
shall make payment, if applicable, to the applicant from the | 1968 |
auction recovery fund in accordance with the order and shall | 1969 |
provide to the applicant by certified mail, return receipt | 1970 |
requested, a copy of the order and a statement of the time and | 1971 |
method by which an appeal may be perfected. In addition, the | 1972 |
department shall mail a copy of the order to the attorney or other | 1973 |
representative of the applicant. | 1974 |
(B) A person who asserts that the person has been aggrieved | 1999 |
by the actions of both an auction firm and a licensed auctioneer | 2000 |
related to an auction that resulted in actual and direct losses to | 2001 |
the aggrieved person may file a cause of action with a court of | 2002 |
competent jurisdiction claiming that a violation of this chapter | 2003 |
or rules adopted under it resulted in the actual and direct | 2004 |
losses. The court shall determine if there was a violation of this | 2005 |
chapter or rules adopted under it that resulted in those losses. | 2006 |
If the court determines that the auction firm, the licensed | 2007 |
auctioneer, or both violated this chapter or rules adopted under | 2008 |
it and that the violation resulted in the aggrieved person's | 2009 |
actual and direct losses, the court shall determine the percentage | 2010 |
of culpability, in relation to one hundred per cent, that is | 2011 |
attributable to each party to the action from whom the complainant | 2012 |
seeks recovery. | 2013 |
If the court finds that the percentage of culpability that is | 2014 |
attributable to the licensed auctioneer is greater than zero, the | 2015 |
aggrieved person may initiate a claim against the auction recovery | 2016 |
fund in accordance with sections 4707.26 to 4707.31 of the Revised | 2017 |
Code to recover that percentage of the actual and direct losses | 2018 |
sustained by the person. If the court finds that the percentage of | 2019 |
culpability that is attributable to the auction firm is greater | 2020 |
than zero, the aggrieved person may recover that percentage of the | 2021 |
actual and direct losses sustained by the person under the auction | 2022 |
firm's financial responsibility that is required under section | 2023 |
4707.074 of the Revised Code. | 2024 |
The total aggregate amount that is paid to the aggrieved | 2025 |
person from the auction recovery fund and the auction firm's | 2026 |
financial responsibility shall not exceed the actual and direct | 2027 |
losses sustained by the person. In addition, the total aggregate | 2028 |
amount that is paid from the auction recovery fund shall not | 2029 |
exceed the dollar limitations established in section 4707.29 of | 2030 |
the Revised Code, and the total aggregate amount that is paid from | 2031 |
the auction firm's financial responsibility shall not exceed the | 2032 |
dollar limitations established in section 4707.074 of the Revised | 2033 |
Code. | 2034 |
Sec. 4707.99. (A) Whoever acts as an auctioneer,
apprentice | 2038 |
auctioneer, or special auctioneer as defined inviolates
section | 2039 |
4707.014707.02 of
the Revised Code, without first obtaining a | 2040 |
license, upon
conviction thereof, shall be fined not less than
one | 2041 |
hundred nor
more than one thousand dollars, or imprisoned not
more | 2042 |
than ninety
days, or bothis guilty of a misdemeanor of the first | 2043 |
degree on the first offense and a felony of the fifth degree on | 2044 |
each subsequent offense. | 2045 |
Section 2. That existing sections 505.94, 2925.01, 4707.01, | 2062 |
4707.02, 4707.021, 4707.03, 4707.04, 4707.05, 4707.06, 4707.07, | 2063 |
4707.071, 4707.072, 4707.08, 4707.09, 4707.10, 4707.11, 4707.111, | 2064 |
4707.12, 4707.14, 4707.15, 4707.151, 4707.16, 4707.171, 4707.18, | 2065 |
4707.19, 4707.20, 4707.21, 4707.22, 4707.26, and 4707.99 of the | 2066 |
Revised Code are hereby repealed. | 2067 |
Section 3. Section 2925.01 of the Revised Code is presented | 2068 |
in
this act as a composite of the section as amended by both Sub. | 2069 |
H.B. 364 and Am. Sub. H.B. 415 of
the 124th General Assembly. The | 2070 |
General Assembly, applying the
principle stated in division (B) of | 2071 |
section 1.52 of the Revised
Code that amendments are to be | 2072 |
harmonized if reasonably capable of
simultaneous operation, finds | 2073 |
that the composite is the resulting
version of the section in | 2074 |
effect prior to the effective date of
the section as presented in | 2075 |
this act. | 2076 |