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(124th General Assembly)
(Substitute Senate Bill Number 262)
AN ACT
To amend sections 4707.05, 4707.07, 4707.072, 4707.09,
and 4707.19, to enact new section 4707.11 and
sections 4707.25, 4707.26, 4707.261, 4707.262,
4707.27, 4707.28, 4707.29, 4707.30, and 4707.31,
and
to repeal section
4707.11 of the Revised Code
and
to amend Section 17
of Am. Sub. H.B. 94 of the
124th General Assembly
as amended by Am. Sub. H.B.
3 of the 124th General
Assembly to create the
Auction Recovery Fund, to
establish criteria and
procedures for using it to
reimburse persons who
have sustained losses involving an auctioneer who
violated the Auctioneers
Law, to delay the
effective date of specified provisions until July
1, 2003, and to make an
appropriation.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 4707.05, 4707.07, 4707.072, 4707.09,
and 4707.19 be amended and new section 4707.11 and sections
4707.25, 4707.26, 4707.261, 4707.262, 4707.27, 4707.28, 4707.29,
4707.30, and 4707.31 of the
Revised Code be enacted to read as
follows:
Sec. 4707.05.
All
Except as otherwise provided in section
4707.25 of the Revised Code, all fees and charges collected by the
department of
agriculture pursuant to this chapter shall
be paid
into the
state treasury
to the credit of the auctioneers
fund,
which is hereby
created. All expenses incurred by the
department
in
administering this
chapter shall be paid out of the
fund. The
total expenses incurred by
the department in the
administration of
this chapter shall not exceed the
total
fees,
charges, fines, and
penalties imposed under sections 4707.08,
4707.10, and 4707.99 of
the Revised Code and paid to the
treasurer
of state. The
department may conduct education
programs for the
enlightenment
and benefit of all auctioneers who
have paid fees
pursuant to
sections 4707.08 and 4707.10 of the
Revised Code. Out of the moneys credited pursuant to this section, the fund
shall
be assessed a proportionate share of the administrative
costs of
the department in accordance with procedures prescribed
by the
director of
agriculture and approved by the
director of
budget and
management. The assessment shall be paid
from the
auctioneers fund to
the division of administration fund.
At the end of each fiscal year, if the balance of the fund is
greater than three hundred thousand dollars, the director of
agriculture shall request the director of budget and management
to, and the director of budget and management shall, transfer
twenty-five per cent of the balance to the auction recovery fund
created in section 4707.25 of the Revised Code.
Sec. 4707.07. (A) The department of
agriculture
may grant
auctioneers' licenses to those persons deemed qualified
by the
department. Each person who applies for an auctioneer's
license
shall furnish to the department, on forms provided by the
department, satisfactory proof that the applicant: (1) Has a good reputation; (2) Is of trustworthy character; (3) Has attained the age of at least eighteen years; (4) Has done one of the following: (a) Met the apprenticeship requirements set forth in
section
4707.09 of the Revised Code; (b) Met the requirements of section 4707.12 of the Revised
Code. (5) Has a general knowledge of the following: (a) The requirements of the Revised Code relative to
auctioneers; (b) The auction profession; (c) The principles involved in conducting an auction.
(6) Has satisfied the financial responsibility requirements
established under section 4707.11 of the Revised Code if
applicable. (B) Auctioneers who served apprenticeships and who hold
licenses issued before May 1, 1991, and who seek renewal of their
licenses, are not subject to the additional apprenticeship
requirements imposed by section 4707.08 of the Revised Code. (C) The department may issue an auctioneer's license to a
partnership, association, or corporation if all the partners,
members, or officers thereof who are authorized to perform the
functions of an auctioneer as agents of the applicant are
themselves licensed as auctioneers under this chapter. An application for an auctioneer's license filed by a
partnership or association shall contain a listing of the names
of
all of the licensed partners, members, or other persons who
are
authorized to perform the functions of an auctioneer as
agents of
the applicant. An application filed by a corporation
shall
contain the names of its president and of each of its
licensed
officers and any other person who is authorized to
perform the
functions of an auctioneer as an agent of the
applicant. (D) A licensee may do business under more than one
registered name if the names have been approved by the
department.
The department may reject the application of any
person seeking
licensure under this chapter if the name or names
to be used by
the applicant are likely to mislead the public, or
if the name or
names do not distinguish the applicant from the
name or names of
any existing person licensed under this chapter.
If an applicant
applies to the department to do business under
more than two
names, the department may charge a fee of ten
dollars for the
third name and each additional name.
Sec. 4707.072. The department of
agriculture may
grant
one-auction licenses to any nonresident person deemed
qualified
by
the department. Any person who applies for a
one-auction
license
shall attest, on forms provided by the
department, and
furnish to
the department, satisfactory proof that
the license
applicant or
any auctioneer affiliated with the
applicant meets
the following
requirements: (A) Has a good reputation; (B) Is of trustworthy character; (C) Has attained the age of at least eighteen years; (D) Has a general knowledge of the requirements of the
Revised Code relative to auctioneers, the auction profession, and
the principles involved in conducting an auction; (E) Has two years of professional auctioneering experience
immediately preceding the date of application and the experience
includes the personal conduct by the applicant of at least twelve
auction sales in any state, or has met the requirements of
section
4707.12 of the Revised Code; (F) Has paid a fee of one hundred dollars, which shall be
credited to the auctioneers fund; (G) Has provided proof of
the bond
financial responsibility
as required under section
4707.11 of the Revised Code.
Sec. 4707.09. The department of
agriculture may
grant
apprentice auctioneers' licenses to those persons deemed
qualified
by the department. Every applicant for an apprentice
auctioneer's
license
must
shall pass an examination relating to the
skills,
knowledge, and statutes and
regulations
rules governing
auctioneers.
Every applicant for an apprentice auctioneer's
license shall
furnish to the department, on forms provided by the
department,
satisfactory proof that the applicant: (A) Has a good reputation; (B) Is of trustworthy character; (C) Has attained the age of at least eighteen years; (D) Has obtained a written promise of a licensed
auctioneer
to sponsor the applicant during
the applicant's
apprenticeship; (E) Has satisfied the financial responsibility requirements
established under section 4707.11 of the Revised Code if
applicable. Before an apprentice may take the auctioneer's license
examination,
the apprentice shall serve an apprenticeship of
at
least twelve
months, successfully complete a course of study in
auctioneering
at an institution that is approved every three years
by the state
auctioneers commission, and conduct, as a bid caller,
at least
twelve auction sales under the direct supervision of the
sponsoring licensed auctioneer, which sales shall be certified by
the licensed auctioneer on the apprentice's application for an
auctioneer's license. If an auctioneer intends to terminate
sponsorship of an
apprentice auctioneer, the sponsoring auctioneer shall notify the
apprentice auctioneer of
the sponsoring auctioneer's
intention
by
certified mail, return
receipt requested, at least ten days
prior
to the effective date
of termination and, at the same time,
shall
deliver or mail by
certified mail to the department of
agriculture a copy of the
termination notice and the
license of
the apprentice auctioneer.
No apprentice auctioneer
shall perform
any acts under authority
of
the apprentice's
license after the
effective date of the
termination until
the
apprentice receives a
new license bearing the name and
address of
the apprentice's new
sponsor. No more than one license shall
be issued to any
apprentice auctioneer for the same period of
time. No licensed auctioneer shall have under
the licensed
auctioneer's sponsorship
more than two apprentice auctioneers at
one time. An apprentice auctioneer may terminate
the apprentice's
sponsorship with
an auctioneer by notifying the auctioneer of
the
apprentice's intention by
certified mail, return receipt
requested, at least ten days prior
to the effective date of
termination. At the same time,
the
apprentice shall
deliver or
mail by certified mail to the department of
agriculture a
copy of
the termination notice. Upon receiving the termination
notice,
the sponsoring auctioneer shall promptly deliver or mail
by
certified mail to the department the license of the apprentice
auctioneer. The termination of a sponsorship, regardless of who
initiates
the termination, shall not be cause for an apprentice
auctioneer
to lose credit for any certified sales
the
apprentice conducted
or
apprenticeship time
the apprentice served under the direct
supervision of the
former sponsor.
Sec. 4707.11. (A) Except as provided in division (B) of this
section, each application for a license issued under
this chapter
shall be accompanied by proof of financial
responsibility in the
form of either an irrevocable letter of credit or a cash bond or a
surety bond in the amount of
twenty-five
thousand dollars. If the
applicant gives a surety
bond, the bond
shall be executed by a
surety company authorized to
do business in
this state. A bond shall be made to the department of agriculture and
shall be conditioned that the applicant shall comply with this
chapter and rules adopted under it, including refraining from
conduct described in section 4707.15 of the Revised Code. All
bonds shall be on a form approved by the director of agriculture. A licensee shall maintain proof of financial responsibility
for three years following the date of initial licensure. After
the
three-year period, a licensee who has not engaged
in conduct
described in section 4707.15 of the Revised Code and
has not
otherwise violated this chapter or rules adopted under it
during
that period shall no longer be required to maintain proof
of
financial responsibility except as otherwise provided in this
section.
A licensee whose license expires without being renewed under
section 4707.10 of the Revised Code or is suspended under section
4707.30 of the Revised Code shall give proof of financial
responsibility in accordance with this section in order to obtain
reinstatement or reactivation of the license. (B) Division (A) of this section does not apply to either of
the following:
(1) A licensee whose license was issued prior to July 1,
2003, provided that the license continues to be renewed under
section 4707.10 of the Revised Code and is not suspended under
section 4707.15 or 4707.30 of the Revised Code;
(2) An apprentice auctioneer licensee whose license was
issued under section 4707.09 of the Revised Code prior to July 1,
2003, and who applies for an auctioneer's license under section
4707.07 of the Revised Code on or after July 1, 2003, provided
that the apprentice auctioneer's license is not suspended under
section 4707.15 or 4707.30 of the Revised Code, and, if necessary,
continues to be renewed under section 4707.10 of the Revised Code,
prior to the issuance of the auctioneer's license to the
applicant.
Sec. 4707.19. The
department
director of
agriculture may
make
adopt reasonable rules necessary
for the implementation of
the
provisions of this chapter
pursuant to
in accordance with
Chapter
119. of the Revised
Code.
In addition, the director shall
adopt rules in accordance with Chapter 119. of the Revised Code
that establish the portion of license fees collected under this
chapter that are to be deposited into the auction recovery fund
under section 4707.25 of the Revised Code. The department
of
agriculture may hear testimony in matters
relating to
the duties
imposed on it, and any person authorized by the
director
of
agriculture may administer oaths. The
department may
require
other proof of
the honesty, truthfulness,
and good
reputation of
any person named in the
application for an
auctioneer's,
apprentice auctioneer's, or special
auctioneer's
license before
admitting the applicant to an examination or
issuing a license.
Sec. 4707.25. (A) The auction recovery fund is hereby
created in the state treasury. The fund shall be administered by
the director of agriculture. The treasurer of state shall credit
all of the following to the fund: any moneys transferred to it
from the auctioneers fund created under section 4707.05 of the
Revised Code; except as otherwise provided in this section, a
portion, in an amount specified in rules adopted under section
4707.19 of the Revised Code, of license fees collected under this
chapter; any assessments levied under this section; repayments
made to the auction recovery fund under section 4707.30 of the
Revised Code by persons licensed under this chapter; and interest
earned on the assets of the fund. Moneys credited to the fund shall be used to make payments to
persons in accordance with sections 4707.26 and 4707.31 of the
Revised Code and to persons who obtain a final judgment in
accordance with section
4707.261 and sections 4707.27 to 4707.30
of the Revised Code in a court of competent
jurisdiction against a
person licensed under this chapter on the
grounds of conduct by
the licensee that is described in section
4707.15 of the Revised
Code or that otherwise violates this
chapter or rules adopted
under it and that is associated with an
act or transaction that
only a licensee lawfully may perform. In the case of a final
judgment, the
amount of the payments shall be limited to any
portion of the
final judgment that remains unpaid. In all cases,
the amount of the payments
is subject to the dollar limitations
established in section
4707.29 of the Revised Code. (B) The director shall ascertain the balance of the fund on
the first day of July each year. If the balance of the fund is
greater than two million dollars, the director
may utilize, during
the fiscal year beginning on that first day of
July, the portion
of the fund that is greater than two
million dollars to sponsor
educational programs or to underwrite
research that is beneficial
to persons licensed under this chapter
and to the public. If the
balance of the fund is at least four
million dollars, the portion
of license fees collected under this
chapter that otherwise would
be credited to the fund under this
section shall be credited to
the auctioneers fund during the
fiscal year beginning on that
first day of July. If the balance of the fund is less than four hundred thousand
dollars, the director shall levy an assessment against each person
who holds a valid license issued under this chapter. The amount
of the assessment shall be determined by subtracting the balance
of the fund from five hundred thousand dollars and dividing the
resulting total by the number of persons recorded under section
4707.06 of the Revised Code as holding a valid license issued
under this chapter. All assessments that are collected shall be
credited to the fund. (C) The director shall collect from the fund a service fee
in an amount equal to the interest rate specified in division (A)
of section 1343.03 of the Revised Code multiplied by the annual
interest earned on the assets of the fund to defray the expenses
incurred by the department of agriculture in the administration of
the fund.
Sec. 4707.26. (A)(1) A person who asserts that they have
been aggrieved by the actions of a person licensed under this
chapter that resulted in actual and direct losses to the aggrieved
person may initiate a claim against the auction recovery fund
either under this section or section 4707.261 of the Revised Code.
If an aggrieved person who wishes to seek recovery from the
auction recovery fund has obtained a final judgment in a court of
competent jurisdiction against the licensee, the aggrieved person
shall initiate the claim in accordance with section 4707.261 of
the Revised Code. If an aggrieved person who wishes to seek
recovery from the auction recovery fund has not obtained a final
judgment in a court of competent jurisdiction against the
licensee, the aggrieved person shall initiate the claim in
accordance with this section.
(2) An aggrieved person may initiate a claim against the
auction recovery fund under this section
if both of the following
apply:
(a) The loss was associated with an act or transaction that
only a person licensed under this chapter lawfully may perform.
(b) The licensee's actions are described in section 4707.15
of the Revised Code or otherwise violate this chapter or rules
adopted under it.
To initiate a claim against the fund, an aggrieved person
shall file a verified complaint with the department of agriculture
in accordance with section 4707.16 of the Revised Code. The
verified complaint shall include an application to the department
that requests recovery of the applicant's actual and direct losses
and that is made on forms that the department provides. The
application for recovery shall specify the nature of the act or
transaction on which the applicant's claim is based, the actual
and direct losses sustained by the applicant, and any activities
that the applicant has pursued as a remedy for the losses.
(B) Upon receipt of a verified compliant and application,
the department shall conduct an investigation in accordance with
section 4707.16 of the Revised Code. After the investigation, if
the department determines that the licensee has engaged in conduct
described in section 4707.15 of the Revised Code or otherwise has
violated this chapter or rules adopted under it, the department
shall propose to take action to suspend or revoke the licensee's
license under section 4707.15 of the Revised Code or to initiate a
criminal action against the licensee under section 4707.99 of the
Revised Code, or both. The department shall issue a letter to the
applicant indicating the department's proposed action and the date
of any hearing that the department has scheduled regarding the
matter.
(C) Upon exhaustion of administrative remedies or
criminal proceedings that results in a finding that the licensee
has engaged in conduct described in section 4707.15 of the Revised
Code or otherwise has violated this chapter or rules adopted under
it, the department shall issue a notice in accordance with Chapter
119. of the Revised Code via certified mail to the applicant
indicating that the applicant may request a hearing for relief
from the auction recovery fund. An applicant who seeks recovery
from the fund of any actual and direct losses suffered as a result
of a licensee's conduct shall submit, not later than thirty days
following receipt of the notice, a request for a hearing to the
department.
Upon the timely receipt of a request for a hearing, the
department shall provide the applicant with the opportunity to
appear at an adjudication hearing to offer proof and evidence of
the actual and direct losses. Whenever possible, the department
shall require all applicants whose claims to the fund arose from
an underlying transaction involving the same licensee to be joined
in one adjudication under this section so that the rights of all
applicants may be equitably adjudicated and settled. On behalf of
the fund, the department may defend claims against the fund and
shall have recourse to all appropriate means of defense and
review, including examination of witnesses, and verification of
actual losses.
(D) Upon the conclusion of the adjudication hearing, the
hearing officer shall issue a report and recommendation in favor
of making payment to an applicant from the fund if, during the
course of the adjudication hearing, all of the following have been
shown:
(1) The licensee has engaged in conduct described in section
4707.15 of the Revised Code or otherwise has violated this chapter
or rules adopted under it.
(2) The licensee's conduct or violation is associated with
an act that only a person licensed under this chapter lawfully may
perform and the act resulted in direct and actual losses to the
applicant.
(3) The applicant filed a verified complaint and application
with the department as required by this section.
(4) The applicant is not the spouse of the licensee nor the
personal representative of the licensee's spouse.
(5) If the licensee either provided an irrevocable letter
of credit or gave bond in accordance with section 4707.11 of the
Revised Code, the applicant first sought recovery under the
irrevocable letter of credit or bond before applying for payment
from the fund.
The amount of any payment from the fund to the applicant
shall consist of an amount that is equal to the portion of the
actual and direct losses incurred by the applicant that remain
unpaid. The amount of the payment is subject to the dollar
limitation established in section 4707.29 of the Revised Code.
If the hearing officer determines that not all of the items
described in divisions (D)(1) to (5) of this section have been
shown during the course of the adjudication hearing, the hearing
officer shall issue a report and recommendation against making
payment from the fund to the applicant.
(E) Pursuant to section 119.09 of the Revised Code, a
hearing officer or the hearing officer's representative shall
forward by certified mail a copy of the hearing officer's written
report and recommendation to the applicant or the applicant's
attorney or other representative not later than five days after
the date on which the report and recommendation are filed.
Not later than ten days after receiving such a copy, the
applicant may file with the department written objections to the
report and recommendation. The department may grant extensions of
time to the applicant within which to file objections.
The objections shall be considered by the department
before it approves, modifies, or disapproves the recommendation.
The department may order additional testimony to be taken or
permit the introduction of further documentary evidence.
The recommendation of the hearing officer may be approved,
modified, or disapproved by order of the director of agriculture.
The order shall not be issued until more than ten days have
elapsed following the applicant's receipt of the report and
recommendation as provided by this section. The director's
approval, modification, or disapproval of the hearing officer's
recommendation shall have the same effect as if the hearing had
been conducted by the director.
No recommendation shall be final until approved, modified,
or disapproved by the director as indicated by the order entered
on the record of proceedings of the department. If the director
modifies or disapproves the recommendations of the hearing
officer, the director shall include in the record of the
proceedings the reasons for the modification or disapproval.
After an order is entered on its journal, the department
shall make payment, if applicable, to the applicant from the
auction recovery fund in accordance with the order and shall
provide to the applicant by certified mail, return receipt
requested, a copy of the order and a statement of the time and
method by which an appeal may be perfected. In addition, the
department shall mail a copy of the order to the attorney or other
representative of the applicant.
(F) An order of the director issued under this section
constitutes a final determination of the director for purposes of
appeal. An applicant who is denied compensation from the auction
recovery fund or who receives an award less than the award
requested may appeal the order of the director. Notices of appeal
shall be filed in the manner provided in section 119.12 of the
Revised Code.
Sec. 4707.261.
A person who obtains a final judgment in a
court of competent jurisdiction against a person licensed under
this chapter, on the grounds of conduct by the licensee that is
described in section 4707.15 of the Revised Code or that otherwise
violates this chapter or rules adopted under it and that is
associated with an act or transaction that only a licensee
lawfully may perform, may file a verified application in a court
of common pleas for an order directing payment from the auction
recovery fund. The application shall be accompanied by the
judgment entry and may seek payment in an amount that
is equal to
the portion of the judgment that remains unpaid. The application shall specify the nature of the act or
transaction on which the underlying judgment was based, the
activities of the applicant in pursuit of remedies available under
the law for the collection of judgments, and the actual and direct
losses sustained by the applicant. The applicant shall attach to
the application a copy of each pleading and order in the
underlying court action. In addition, the application shall
include proof of the applicant's actual and direct loss. Whenever possible, the court shall require all applicants and
prospective applicants whose claims to the fund arose from an
underlying judgment against the same licensee to be joined in one
action under this section so that the rights of all applicants may
be equitably adjudicated and settled.
Sec. 4707.262. A person who has sustained actual and direct
losses in the course of a real estate auction transaction and who
believes that they may qualify to seek recovery for the losses
from the real estate recovery fund in accordance with section
4735.12 of the Revised Code or from the auction recovery fund
shall apply to a court of competent jurisdiction for a
determination of the fund from which the person should seek
recovery if either or both of the following apply:
(A) The transaction involves both of the following:
(1) A violation of Chapter 4735. of the Revised Code;
(2) A violation of this chapter or rules adopted under it or
conduct that is described in section 4707.15 of the Revised Code.
(B) The person is unclear as to the fund from which
recovery should be sought.
Upon receipt of an application under this section, the court
shall determine whether it appears that conduct or a violation
described in division (A) of this section occurred and also shall
determine, in its discretion, the appropriate fund from which the
person should seek recovery and notify the person of the
determination.
In the event that the court determines the person is able to
recover from both the real estate recovery fund and the auction
recovery fund, the total aggregate amount that is paid to the
person from both the funds shall not exceed the actual and direct
losses sustained by the person. In addition, the total aggregate
amount that is paid to the person from both the funds shall not
exceed the dollar limitations established in section 4707.29 of
the Revised Code, and the portion of that total aggregate amount
that is paid from the real estate recovery fund shall not exceed
the dollar limitations established in division (D) of section
4735.12 of the Revised Code.
For purposes of division (B)(4)(d) of section 4735.12 of the
Revised Code, with respect to recovery from the real estate
recovery fund, a person shall not be required first to seek
recovery from the auction recovery fund in order to be considered
to have diligently pursued the person's remedies.
Sec. 4707.27. A person who applies to a court of common pleas
for an order directing payment from the auction recovery fund
under section 4707.261 of the Revised Code
shall file notice of
the application with the director of
agriculture. The director
may defend any such action on behalf of
the fund and shall have
recourse to all appropriate means of
defense and review, including
examination of witnesses,
verification of actual and direct
losses, and challenges to the
underlying judgment obtained from a
court of competent
jurisdiction to determine whether the
underlying judgment is based
on activity that only a person
holding a valid license issued
under this chapter is authorized to
perform. The director may
move the court of common pleas at any
time to dismiss the
application when it appears that there are no
triable issues and
the application is without merit, provided that
the director shall
give written notice to the applicant not fewer
than ten days
before the motion is made. The motion may be
supported by
affidavit of any person having knowledge of the facts
and may be
made on the basis that the application, including the
underlying
judgment referred to in it, does not form the basis for
a
meritorious recovery claim. Subject to court approval, the
director may compromise a claim based on the application of the
aggrieved party. The director shall not be bound by any prior
compromise or stipulation of the licensee who is the judgment
debtor.
Sec. 4707.28. (A) After receipt of an application that is
filed under section 4707.261 of the Revised Code and that
satisfies
the requirements established under that section, a court
of common
pleas shall issue an order directing the director of
agriculture
to make payment from the auction recovery fund to an
applicant who
satisfies the criteria established under this
section. The
payment shall consist of an amount that is equal to
the portion of
the final judgment that was obtained by the
applicant against a
person licensed under this chapter and that
remains unpaid. The
amount of the payment is subject to the
dollar limitations
established in section 4707.29 of the Revised
Code. The court shall issue an order directing payment to the
applicant from the fund when the applicant has shown all of the
following: (1) The applicant has obtained a judgment in a court of
competent jurisdiction against a person licensed under this
chapter on the grounds of conduct that is described in section
4707.15 of the Revised Code or that otherwise violates this
chapter or rules adopted under it and that is associated with an
act or transaction that only a licensee lawfully may perform. (2) All appeals from the judgment have been exhausted, and
the applicant has filed notice with the director in accordance
with section 4707.27 of the Revised Code and has otherwise
complied with that section. (3) The applicant is not either the spouse of the licensee
who is the judgment debtor or the personal representative of the
spouse. (4) The applicant has diligently pursued the applicant's
remedies against all judgment debtors and all other persons who
are liable to the applicant in the underlying auction transaction
for which the applicant seeks recovery from the fund. (5) The applicant filed the application not later than six
months following the termination of all proceedings, including
appeals, in connection with the judgment. (6) If the judgment debtor either provided an irrevocable
letter of credit or gave bond in accordance with
section 4707.11
of the Revised Code, the applicant first sought
recovery under the
irrevocable letter of credit or the bond before applying for
payment from the fund. (B) All of the following are prohibited from receiving
payment under section 4707.26 or 4707.261 of the Revised Code from
the auction recovery fund: (1) A bonding company that was not a party in the underlying
auction transaction; (2) A person holding a valid license issued under either
this chapter or Chapter 4735. of the Revised Code; (3) A person who, under division (B)(5) of section 4735.12
of the Revised Code, would be ineligible to receive payment from
the real estate recovery fund; (4) A person who obtained a final judgment that arose from
an act or transaction that only a licensed real estate broker or
real estate salesperson is authorized to perform under Chapter
4735. of the Revised Code and that did not involve a violation of
this chapter or rules adopted under it. (C) Punitive damages, attorney's fees, court costs, and
interest on a judgment are not recoverable from the auction
recovery fund.
Sec. 4707.29. The liability of the auction recovery fund
shall not exceed fifty thousand dollars for losses involving
violations committed by any one licensee, except that with respect
to any one licensee who provides either an irrevocable letter of
credit or a bond in order to maintain proof
of financial
responsibility under section 4707.11 of the Revised
Code, the
liability of the fund shall not exceed twenty-five
thousand
dollars for losses involving violations committed by the
licensee.
If a licensee's license is reactivated as provided in
section
4707.30 of the Revised Code, the liability of the fund for
the
licensee shall again be fifty thousand dollars, or twenty-five
thousand dollars if applicable, but only for transactions that
occur subsequent to the time of reactivation. If fifty thousand dollars, or twenty-five thousand dollars if
applicable, are insufficient to pay the valid claims of all
persons who have applied for payment from the fund with respect to
losses involving violations committed by the same licensee, the
money shall be distributed among the persons in the ratio that
their respective claims bear to the aggregate of valid claims or
in another manner that the court or, if all the claims involve
applications filed under section 4707.26 or 4707.31 of the Revised
Code, the director of agriculture determines to be equitable.
Distribution of the money shall be among the persons entitled to
share in it without regard to the order of priority in which
their
respective claims may have been decided or their
applications
for
payment from the fund may have been filed.
Sec. 4707.30. (A) As used in this section: (1) "Aggrieved party" means a person who has sustained
actual and direct losses in an auction transaction involving a
person
licensed under this chapter due to conduct by the
licensee
that is described in section 4707.15 of the Revised Code
or that
otherwise violates this chapter or rules adopted under it
and that
is associated with an act or transaction that only a
licensee
lawfully may perform. (2) "Offending licensee" means a person licensed under
this
chapter who fits either of the following descriptions: (a) Against whom an aggrieved party has obtained a final
judgment in a court of competent jurisdiction and whose failure to
pay all or a portion of the judgment results in a payment to the
aggrieved party from the auction recovery fund; (b) Whose conduct has resulted in a payment from the auction
recovery fund to an aggrieved party under section 4707.26 or
4707.31 of the Revised Code. (B) If the director of agriculture makes a payment from the
auction recovery fund to an aggrieved party and the license of the
offending licensee has not been suspended or revoked under
section
4707.15 of the Revised Code, the license automatically is
suspended on the date on which the payment is made. The director
shall provide the offending licensee an opportunity for an
administrative hearing on the suspension in accordance with
Chapter 119. of the Revised Code. The director
shall not
reactivate the suspended license until the offending
licensee has
repaid in full, plus interest per annum at the
rate
specified in
division (A) of section 1343.01 of the Revised
Code,
the amount
paid from the fund to the aggrieved party. A
discharge
in
bankruptcy does not relieve an offending
licensee from the
suspension provisions and requirements for
reactivation of a
license that are established in this section. When the director
has paid from the fund any sum to an
aggrieved party, the director
shall be subrogated to all of the
rights of the aggrieved party to
the extent of the amount of the
payment that the aggrieved party
received from the fund. If the
aggrieved party obtained a final judgment against the offending
licensee in a court of competent jurisdiction, the aggrieved party
shall assign all of
the aggrieved party's right, title, and
interest in the judgment
to the director to the extent of the
amount of the payment that the aggrieved party received from the
fund. The
director shall deposit into the fund any amount and
interest
recovered by the director from the offending licensee. With respect to the amount of a payment that the director has
paid to an aggrieved party from the fund and has not recovered,
the director shall have a priority lien in front of all other
interested creditors against the assets of an offending
licensee
who files bankruptcy. The lien shall be deemed to have
taken
effect on the date that the offending licensee entered
into a
contract in accordance with section 4707.20 of the Revised
Code
with respect to the auction transaction out of which the
payment
from the fund arose. Disciplinary action taken under this section against an
offending licensee and the recovery of moneys from an offending
licensee for deposit into the fund shall not
excuse the offending
licensee from any other disciplinary
action to which the offending
licensee may be subject under
this chapter or any other provision
of the Revised Code or rules
adopted under it.
Sec. 4707.31. Notwithstanding any other provision of this
chapter to the contrary, the director of agriculture may, within
the director's discretion, make a payment out of the auction
recovery fund to a person without first requiring the person to
obtain a prior order issued by the director or by a court of
competent jurisdiction if all of the following apply:
(A) The person claims to have sustained total actual and
direct losses in the amount of one thousand dollars or less.
(B) The losses are associated with an act or transaction
that only a person licensed under this chapter lawfully may
perform.
(C) The licensee allegedly has engaged in actions that are
described in section 4707.15 of the Revised Code or that otherwise
violate this chapter or rules adopted under it.
(D) The amount of the alleged loss is readily ascertainable
rather than speculative in nature. (E) The claimant filed a properly notarized complaint with
supporting documentation to the department not later than one year
following the date of the alleged wrongful actions of the
licensee.
(F) The department, within its discretion, determines that,
based upon the evidence presented, justice would be better served
by allowing compensation to be paid without first requiring the
aggrieved party to obtain a judgment from a court of competent
jurisdiction or an order of the department.
SECTION 2. That existing sections 4707.05, 4707.07, 4707.072,
4707.09, and 4707.19 of the Revised Code are
hereby repealed.
SECTION 3. That section 4707.11 of the Revised Code is hereby
repealed, effective July 1, 2003.
SECTION 4. Sections 4707.07, 4707.072, 4707.09, 4707.11,
4707.26, 4707.261, 4707.262, 4707.27, 4707.28, 4707.29, 4707.30,
and 4707.31 of the Revised
Code, as amended or enacted by this
act, shall take effect on July
1, 2003.
SECTION 5. That Section 17 of Am. Sub. H.B. 94 of the 124th
General Assembly, as amended by Am. Sub. H.B. 3 of the 124th
General Assembly, be amended to read as follows: "Sec. 17. AGR DEPARTMENT OF AGRICULTURE
General Revenue Fund
GRF | 700-321 | | Operating Expenses | | $ | 3,160,884 | | $ | 3,334,073 |
GRF | 700-401 | | Animal Disease Control | | $ | 4,340,887 | | $ | 4,385,108 |
GRF | 700-402 | | Amusement Ride Safety | | $ | 226,451 | | $ | 230,769 |
GRF | 700-403 | | Dairy Division | | $ | 1,569,097 | | $ | 1,707,877 |
GRF | 700-404 | | Ohio Proud | | $ | 222,856 | | $ | 228,266 |
GRF | 700-405 | | Animal Damage Control | | $ | 86,780 | | $ | 84,358 |
GRF | 700-406 | | Consumer Analytical Lab | | $ | 889,058 | | $ | 900,001 |
GRF | 700-407 | | Food Safety | | $ | 1,422,998 | | $ | 1,377,956 |
GRF | 700-409 | | Farmland Preservation | | $ | 150,000 | | $ | 320,000 | GRF | 700-410 | | Plant Industry | | $ | 1,517,969 | | $ | 1,561,620 |
GRF | 700-411 | | International Trade and Market Development | | $ | 789,620 | | $ | 598,062 |
GRF | 700-412 | | Weights and Measures | | $ | 991,136 | | $ | 996,634 |
GRF | 700-413 | | Gypsy Moth Prevention | | $ | 633,214 | | $ | 634,279 |
GRF | 700-414 | | Concentrated Animal Feeding Facilities Advisory Committee | | $ | 23,275 | | $ | 22,663 |
GRF | 700-415 | | Poultry Inspection | | $ | 322,256 | | $ | 320,960 |
GRF | 700-418 | | Livestock Regulation Program | | $ | 1,357,487 | | $ | 1,563,898 |
GRF | 700-424 | | Livestock Testing and Inspections | | $ | 229,996 | | $ | 228,438 |
GRF | 700-499 | | Meat Inspection Program - State Share | | $ | 4,654,566 | | $ | 4,977,168 |
GRF | 700-501 | | County Agricultural Societies | | $ | 466,842 | | $ | 466,842 |
GRF | 700-503 | | Swine and Cattle Breeder Awards | | $ | 113,160 | | $ | 107,076 |
TOTAL GRF General Revenue Fund | | $ | 23,168,532 | | $ | 24,046,048 |
Federal Special Revenue Fund Group
3J4 | 700-607 | | Indirect Cost | | $ | 1,380,026 | | $ | 1,314,020 |
3R2 | 700-614 | | Federal Plant Industry | | $ | 1,607,887 | | $ | 1,682,330 |
326 | 700-618 | | Meat Inspection Service - Federal Share | | $ | 4,401,707 | | $ | 4,959,973 |
336 | 700-617 | | Ohio Farm Loan Revolving Fund | | $ | 181,774 | | $ | 181,774 |
382 | 700-601 | | Cooperative Contracts | | $ | 1,027,692 | | $ | 1,091,347 |
TOTAL FED Federal Special Revenue | | | | | | |
Fund Group | | $ | 8,599,086 | | $ | 9,229,444 |
State Special Revenue Fund Group
4C9 | 700-605 | | Feed, Fertilizer, and Lime Inspection | | $ | 909,033 | | $ | 975,244 |
4D2 | 700-609 | | Auction Education | | $ | 30,476 | | $ | 30,476 | 4E4 | 700-606 | | Utility Radiological Safety | | $ | 69,016 | | $ | 73,059 |
4P7 | 700-610 | | Food Safety Inspection | | $ | 559,611 | | $ | 575,797 |
4R0 | 700-636 | | Ohio Proud Marketing | | $ | 125,297 | | $ | 133,614 |
4R2 | 700-637 | | Dairy Inspection Fund | | $ | 1,183,358 | | $ | 1,174,591 |
4T6 | 700-611 | | Poultry and Meat Inspection | | $ | 47,294 | | $ | 47,294 |
4T7 | 700-613 | | International Trade and Market Development Rotary | | $ | 161,991 | | $ | 166,356 |
4V5 | 700-615 | | Animal Industry Lab Fees | | $ | 626,633 | | $ | 633,097 |
493 | 700-603 | | Fruits and Vegetables Inspection Fees | | $ | 212,764 | | $ | 171,772 |
494 | 700-612 | | Agricultural Commodity Marketing Program | | $ | 166,536 | | $ | 169,867 |
496 | 700-626 | | Ohio Grape Industries | | $ | 1,048,667 | | $ | 1,071,099 |
497 | 700-627 | | Commodity Handlers Regulatory Program | | $ | 566,862 | | $ | 648,616 |
5B8 | 700-628 | | Auctioneers | | $ | 286,769 | | $ | 365,390 |
5H2 | 700-608 | | Metrology Lab | | $ | 74,674 | | $ | 138,624 |
5L8 | 700-604 | | Livestock Management Program | | $ | 250,000 | | $ | 250,000 |
5U1 | 700-624 | | Auction Recovery Fund | | $ | 0 | | $ | 500,000 | 578 | 700-620 | | Ride Inspection Fees | | $ | 634,099 | | $ | 650,774 |
579 | 700-630 | | Scale Certification | | $ | 230,047 | | $ | 230,047 |
652 | 700-634 | | Laboratory Services | | $ | 1,179,560 | | $ | 1,144,766 |
669 | 700-635 | | Pesticide Program | | $ | 2,108,049 | | $ | 2,181,491 |
TOTAL SSR State Special Revenue | | | | | | |
Fund Group | | $ | 10,470,236 | | $ | 10,831,974 |
| | | | | | 11,331,974 |
TOTAL ALL BUDGET FUND GROUPS | | $ | 42,238,354 | | $ | 44,107,466 |
| | | | | | 44,607,466 |
ANIMAL DISEASE CONTROL
The funds in appropriation item 700-401, Animal Disease
Control, may be used for the detection, prevention, and emergency
management of, and the education of the public regarding, Foot and
Mouth disease, Mad Cow disease, and West Nile virus. REIMBURSEMENT TO THE GENERAL REVENUE FUND (A) On or before June 30, 2003, the Director of
Budget and
Management shall determine the following: (1) The total amount disbursed from the foregoing
appropriation
item, 700-409, Farmland Preservation, in the
2002-2003 biennium; and (2) The amount of interest earnings that have been
credited to the
Clean Ohio Conservation Fund (Fund 056) that are
in excess of what is needed
for other purposes. (B) If the Director determines under division (A)(2) of
this section
that there are excess interest earnings, the Director
shall, on or before June 30,
2003, transfer them in an amount not
to exceed $60,000 less than the amount
of disbursements determined
under division (A)(1) of this section from the
Clean Ohio
Conservation Fund to the General Revenue Fund.
THE AUCTION FUND On October 1, 2001, the Auction Education Fund (Fund 4D2) and
the Auction Licensing Fund (Fund 5B8) shall be transferred from
the Department of Commerce to the Department of Agriculture. At
the request of the Director of Commerce, the Director of Budget
and Management may cancel encumbrances in these funds from the
Department of Commerce's appropriation item 800-605, Auctioneer
Education, and appropriation item 800-628, Auctioneers, and
reestablish such encumbrances or parts of encumbrances in fiscal
year 2002 for the same purpose and to the same vendor in the
Department of Agriculture's appropriation item 700-609, Auction
Education, and appropriation item 700-628, Auctioneers. The
Director of Budget and Management shall reduce the appropriation
balances in fiscal year 2001 by the amount of the encumbrances
canceled in the funds. As determined by the Director of Budget
and Management, the appropriation authority necessary to
reestablish such encumbrances or parts of encumbrances in fiscal
year 2002 for the Department of Agriculture is hereby
appropriated. THE DAIRY INDUSTRY FUND On July 1, 2001, or as soon thereafter as possible, the
Director of Budget and Management shall transfer the cash balance
in the License Fees (Fund 4V0) to the Dairy Inspection Fund (Fund
4R2). The director shall cancel any existing encumbrances against
appropriation item 700-602, License Fees (Fund 4V0), and
reestablish them against appropriation item 700-637, Dairy
Inspection (Fund 4R2). The amounts of the reestablished
encumbrances are appropriated."
SECTION 6. That existing Section 17 of Am. Sub. H.B. 94 of
the 124th General Assembly, as amended by Am. Sub. H.B. 3 of the
124th General Assembly, is hereby repealed.
SECTION 7. As soon as possible prior to June 30, 2003, the
Director of Budget and Management shall make a one-time cash
transfer of $500,000 from Fund 5B8, Auctioneers, to Fund 5U1,
Auction Recovery Fund. The Auction Recovery Fund is to
be
administered by the Department of Agriculture under sections
4707.25 to 4707.30 of the Revised Code as enacted by this act.
SECTION 8. Sections 5 to 8 of this act are not subject to the
referendum. Therefore, under the Ohio Constitution, Article II,
Section 1d and section 1.471 of the Revised Code, Sections 5 to 8
of this act go into immediate effect when this act becomes law.
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