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Sub. H. B. No. 48 As Reported by the Senate Ways and Means and Economic Development Committee
As Reported by the Senate Ways and Means and Economic Development Committee
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Representatives Fessler, Seitz, McGregor, J., Setzer, Brown, Collier, Wagner, Wagoner, Combs, Aslanides, Bacon, Bolon, Chandler, Driehaus, Evans, Flowers, Hagan, R., Hite, Schlichter, Batchelder, Blessing, Domenick, Gardner, Hagan, J., Hughes, Luckie, Mecklenborg, Patton, Raussen, Schindel, Schneider, Stewart, D., Wachtmann, Williams, B., Zehringer
Senators Amstutz, Stivers, Miller, D., Kearney, Sawyer, Spada, Schaffer, Schuler
A BILL
To amend sections 307.12, 505.10, 4707.02, 4707.20,
4707.21, and
4707.26 of the Revised Code to
exempt certain tax
exempt organizations and
schools that sell donated items at
auction from
license
and
contract requirements for the
auction, to
require those organizations and
schools to
maintain auction records for two
years,
to
preclude claims against the Auction
Recovery
Fund
for any loss associated with those
types of
auctions, and to reduce from fifteen to
ten days
the minimum bidding period for internet
auctions
of certain township or county personal
property.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 307.12, 505.10, 4707.02, 4707.20,
4707.21, and
4707.26 of the Revised Code be amended to read as
follows:
Sec. 307.12. (A) Except as otherwise provided in
divisions
(D),
(E), and (G) of this section, when the board of
county
commissioners
finds, by resolution, that the county has
personal
property,
including motor vehicles acquired for the use
of county
officers
and departments, and road machinery, equipment,
tools, or
supplies, which that is not needed for public use, is
obsolete, or
is
unfit for the use for which it was acquired, and when
the fair
market value of the property to be sold
or donated under
this
division is, in
the opinion
of the board, in excess of two
thousand five hundred
dollars, the board
may do either of the
following:
(1) Sell
the property at public auction or by sealed
bid to
the highest
bidder. Notice of the time, place, and
manner
of the
sale shall
be published in a newspaper of general
circulation in
the county at least ten days prior to the
sale, and
a typewritten
or printed notice of the time, place, and
manner of
the sale shall
be posted at least ten days before the sale in the
offices of the
county auditor and the board of county
commissioners.
If a board conducts a sale of
property by sealed
bid, the
form of the bid shall be as prescribed by the board, and
each bid
shall contain the name of the person submitting it. Bids
received
shall be opened and tabulated at the time stated in
the
notice.
The property shall be sold to the highest bidder,
except
that the
board may reject all bids and hold another sale,
by
public auction
or sealed bid, in the manner prescribed by this
section.
(2) Donate any motor vehicle that does not exceed four
thousand five hundred
dollars in value to a nonprofit organization
exempt from federal income
taxation pursuant to 26 U.S.C. 501(a)
and (c)(3) for the purpose of meeting
the transportation needs of
participants in the Ohio works first program
established under
Chapter 5107. of the Revised Code and participants in the
prevention, retention, and contingency program established under
Chapter 5108.
of the Revised Code.
(B) When the board of county commissioners finds, by
resolution, that the
county has personal property, including motor
vehicles acquired for the use of
county officers and departments,
and road machinery, equipment, tools, or
supplies, which that is
not
needed for public use, is obsolete, or is unfit
for the use
for
which it was acquired, and when the fair market value of the
property to be sold
or donated under this division is, in the
opinion of the
board, two
thousand five hundred dollars or less,
the board may
do either of the following:
(1) Sell the property by
private sale, without advertisement
or public
notification;
(2) Donate the property to an eligible nonprofit
organization
that is located in this state and is exempt from federal income
taxation pursuant to 26
U.S.C. 501(a) and (c)(3). Before donating
any property under this
division, the board shall adopt a
resolution expressing its intent
to make unneeded, obsolete, or
unfit-for-use county personal
property available to these
organizations. The resolution shall
include guidelines and
procedures the board considers necessary to implement a donation
program under this division and
shall indicate whether the county
will conduct the donation program or the board will contract with
a
representative to conduct it. If a representative is known when
the resolution is adopted, the resolution shall provide contact
information such as the representative's name, address, and
telephone number.
The resolution shall include within its procedures a
requirement that any nonprofit organization desiring to obtain
donated property under this division shall submit a written notice
to the board or its representative. The written notice shall
include evidence that the organization is a nonprofit organization
that is located in this state and is
exempt from federal income
taxation pursuant to 26 U.S.C. 501(a)
and (c)(3); a description of
the organization's primary purpose; a
description of the type or
types of property the organization
needs; and the name, address,
and telephone number of a person
designated by the organization's
governing board to receive
donated property and to serve as its
agent.
After adoption of the resolution, the board shall publish, in
a newspaper of general circulation in the county, notice of its
intent to donate unneeded, obsolete, or unfit-for-use county
personal property to eligible nonprofit organizations. The notice
shall include a summary of the information provided in the
resolution and shall be published at least twice. The second and
any subsequent notice shall be published not less than ten nor
more than twenty days after the previous notice. A similar notice
also shall be posted continually in a conspicuous place in the
offices of the county auditor and the board of county
commissioners, and, if the county maintains a web site on the
internet, the notice shall be posted continually at that web site.
The board or its representative shall maintain a list of all
nonprofit organizations that notify the board or its
representative of their desire to obtain donated property under
this division and that the board or its representative determines
to be eligible, in accordance with the requirements set forth in
this section and in
the donation program's guidelines and
procedures, to receive
donated property.
The board or its representatives also shall maintain a list
of all county personal property the board finds to be unneeded,
obsolete, or unfit for use and to be available for donation under
this division. The list shall be posted continually in a
conspicuous location in the offices of the county auditor and the
board of county commissioners, and, if the county maintains a web
site on the internet, the list shall be posted continually at that
web site. An item of property on the list shall be donated to the
eligible nonprofit organization that first declares to the board
or its representative its desire to obtain the item unless the
board previously has established, by resolution, a list of
eligible nonprofit organizations that shall be given priority with
respect to the item's donation. Priority may be given on the
basis
that the purposes of a nonprofit organization have a direct
relationship to specific public purposes of programs provided or
administered by the board. A resolution giving priority to
certain
nonprofit organizations with respect to the donation of an
item of
property shall specify the reasons why the organizations
are given
that priority.
(C) Members of the board of county commissioners shall
consult with the Ohio ethics commission, and comply with the
provisions of Chapters 102. and 2921. of the Revised Code, with
respect to any sale or donation under division (A) or (B) of this
section to a nonprofit organization of which a county
commissioner, any member of the county commissioner's family, or
any business associate of the county commissioner is a trustee,
officer, board member, or employee.
(D) Notwithstanding
anything to the contrary in
division
(A),
(B),
or
(E) of this section and
regardless of the
property's
value, the
board
of county commissioners may sell or
donate
county
personal
property, including motor
vehicles,
to
the
federal
government, the state, or
any political
subdivision of
the
state
without advertisement or
public
notification.
(E)
Notwithstanding anything to the contrary in division
(A),
(B), or
(G) of this section and regardless of the
property's
value, the board of county commissioners may sell
personal
property, including motor vehicles acquired for the use
of county
officers and departments, and road machinery, equipment,
tools, or
supplies, which that is not needed for public use, is
obsolete, or
is
unfit for the use for which it was acquired, by
internet
auction.
The board shall adopt, during each calendar
year, a
resolution
expressing its intent to sell that property by
internet
auction.
The resolution shall include a description of
how the
auctions
will be conducted and shall specify the number of
days
for bidding
on the property, which shall be no less than
fifteen
ten days,
including
Saturdays, Sundays, and legal holidays.
The
resolution
shall
indicate whether the county will conduct the
auction or the
board will contract with a representative to
conduct the auction
and shall establish the general terms and
conditions of sale. If
a representative is known when
the
resolution is adopted, the
resolution shall provide contact
information such as the
representative's name, address, and
telephone
number.
After adoption of the resolution, the board shall
publish, in
a newspaper of general circulation in the
county, notice of
its
intent to sell unneeded, obsolete, or unfit-for-use county
personal
property by internet auction. The notice shall include a
summary
of the information provided in the resolution and shall be
published at least twice. The second and any subsequent notice
shall be published not less than ten nor more than twenty days
after the previous notice. A similar notice also shall be posted
continually throughout the calendar year in a conspicuous place in
the offices of the county auditor and the board of county
commissioners, and, if the county maintains a
web site on
the
internet, the notice shall be posted continually throughout
the
calendar year at that
web site.
When property is to be sold by internet auction, the board or
its representative may establish a minimum price that
will be
accepted for specific items and may establish any other
terms and
conditions for the particular sale, including
requirements for
pick-up or delivery, method of payment, and sales
tax. This type
of information shall be provided on the internet
at the time of
the auction and may be provided before that time
upon request
after the terms and conditions have been determined
by the board
or its representative.
(F) When a county
officer or department head determines
that
county-owned personal
property under the jurisdiction
of the
officer or department head,
including motor vehicles, road
machinery, equipment, tools, or
supplies, is not of immediate
need, the county
officer or
department head may notify the board
of county
commissioners,
and
the board may lease
that
personal
property to any municipal
corporation, township, or other
political subdivision of the
state.
The
lease shall require
the
county to be reimbursed
under terms, conditions, and
fees
established by the board, or under
contracts
executed by the
board.
(G) If the board
of county commissioners finds,
by
resolution, that the county
has vehicles, equipment, or
machinery
which that is not needed, or is
unfit for public use, and the
board
desires to sell
the
vehicles, equipment, or machinery
to the
person or firm from
which it proposes to purchase other
vehicles,
equipment, or
machinery, the board may offer to sell the
vehicles,
equipment,
or machinery to
that person or firm, and
to have
the
selling
price credited to the person or firm
against the purchase
price
of other vehicles, equipment, or
machinery.
(H) If the board
of county commissioners
advertises for
bids
for the sale of
new vehicles, equipment, or
machinery to the
county, it may
include in the same advertisement
a notice of the
willingness of
the board to accept bids for
the purchase of
county-owned
vehicles, equipment, or machinery
which that is
obsolete
or not needed
for public use, and to have the
amount of
those
bids subtracted
from the selling price of the
other
vehicles,
equipment, or
machinery as a means of determining
the
lowest
responsible
bidder.
(I) If a board of county commissioners determines that
county
personal property is not needed for public use, or is
obsolete or
unfit for the use for which it was acquired, and that
the property
has no value, the board may discard or salvage that
property.
(J) A county engineer, in the engineer's discretion, may
dispose of scrap construction materials on such terms as the
engineer determines reasonable, including disposal without
recovery of costs, if the total value of the materials does not
exceed twenty-five thousand dollars. The engineer shall maintain
records of all dispositions made under this division, including
identification of the origin of the materials, the final
disposition, and copies of all receipts resulting from the
dispositions.
As used in division (I) of this section, "scrap construction
materials" means construction materials that result from a road or
bridge improvement, remain after the improvement is completed, and
are not reusable. Construction material that is metal and that
results from a road or bridge improvement and remains after the
improvement is completed is scrap construction material only if it
cannot be used in any other road or bridge improvement or other
project in its current state.
Sec. 505.10. (A) The board of township trustees may accept,
on
behalf of the township, the donation by bequest, devise, deed
of
gift, or otherwise, of any
real or personal
property
for any
township use. When the township has property, including
motor
vehicles, road machinery, equipment, and tools, which that the
board,
by resolution, finds is not needed
for public use,
is
obsolete, or
is unfit for the use for which
it was
acquired,
the
board may sell and
convey
that property
or
otherwise
dispose
of it
in accordance with this section. Except
as
otherwise
provided
in
sections
505.08, 505.101, and
505.102 of the
Revised Code,
the
sale
or
other disposition of
unneeded, obsolete,
or unfit-for-use
property shall
be
made in accordance
with one of the
following:
(1) If the fair market value of
property to be sold
is,
in
the opinion of the board, in excess of two thousand five
hundred
dollars, the
sale shall be by public auction or by sealed bid to
the highest bidder. The
board
shall publish notice of the time,
place, and
manner of the
sale
once a week for three weeks in a
newspaper
published, or of
general circulation, in the township,
the
last
of
those
publications to be at least five days
before
the
date of
sale, and
shall post a typewritten or printed
notice
of
the time,
place, and
manner of the sale in the office of
the
board
for at least ten
days
prior to the sale.
If the board conducts the sale of the property by sealed bid,
the form of the bid shall be as prescribed by the board, and each
bid shall contain the name of the person submitting it. Bids
received shall be opened and tabulated at the time stated in the
published and posted notices. The property shall be sold to the
highest bidder, except that the board may reject all bids and hold
another sale, by public auction or sealed bid, in the manner
prescribed by this section.
(2) If the fair market value of
property to be sold is,
in
the opinion of the board, two thousand five hundred dollars or
less, the
board may do either of the following:
(a) Sell the property by private sale, without
advertisement
or public
notification;
(b) Donate the property to an eligible nonprofit
organization
that is located in this state and is exempt from federal income
taxation pursuant to 26
U.S.C. 501(a) and (c)(3). Before donating
any property under this
division, the board shall adopt a
resolution expressing its intent
to make unneeded, obsolete, or
unfit-for-use township property
available to these organizations.
The resolution shall include
guidelines and procedures the board
considers to be necessary to
implement the donation program and
shall indicate whether the
township will conduct the donation
program or the board will
contract with a representative to
conduct it. If a representative
is known when the resolution is
adopted, the resolution shall
provide contact information such as
the representative's name,
address, and telephone number.
The resolution shall include within its procedures a
requirement that any nonprofit organization desiring to obtain
donated property under this division shall submit a written notice
to the board or its representative. The written notice shall
include evidence that the organization is a nonprofit organization
that is located in this state and is
exempt from federal income
taxation pursuant to 26 U.S.C. 501(a)
and (c)(3); a description of
the organization's primary purpose; a
description of the type or
types of property the organization
needs; and the name, address,
and telephone number of a person
designated by the organization's
governing board to receive
donated property and to serve as its
agent.
After adoption of the resolution, the board shall publish, in
a newspaper of general circulation in the township, notice of its
intent to donate unneeded, obsolete, or unfit-for-use township
property to eligible nonprofit organizations. The notice shall
include a summary of the information provided in the resolution
and shall be published at least twice. The second and any
subsequent notice shall be published not less than ten nor more
than twenty days after the previous notice. A similar notice also
shall be posted continually in the board's office, and, if the
township maintains a web site on the internet, the notice shall be
posted continually at that web site.
The board or its representatives shall maintain a list of all
nonprofit organizations that notify the board or its
representative of their desire to obtain donated property under
this division and that the board or its representative determines
to be eligible, in accordance with the requirements set forth in
this section and in
the donation program's guidelines and
procedures, to receive
donated property.
The board or its representative also shall maintain a list of
all township property the board finds to be unneeded, obsolete, or
unfit for use and to be available for donation under this
division. The list shall be posted continually in a conspicuous
location in the board's office, and, if the township maintains a
web site on the internet, the list shall be posted continually at
that web site. An item of property on the list shall be donated
to
the eligible nonprofit organization that first declares to the
board or its representative its desire to obtain the item unless
the board previously has established, by resolution, a list of
eligible nonprofit organizations that shall be given priority with
respect to the item's donation. Priority may be given on the
basis
that the purposes of a nonprofit organization have a direct
relationship to specific public purposes of programs provided or
administered by the board. A resolution giving priority to
certain
nonprofit organizations with respect to the donation of an
item of
property shall specify the reasons why the organizations
are given
that priority.
(3) If the board finds, by resolution, that the
township has
motor vehicles, road machinery, equipment, or tools
which that are
not
needed or
are unfit for public use, and the
board wishes
to
sell
the motor vehicles, road machinery,
equipment, or tools
to
the
person or firm from which it proposes
to purchase other
motor
vehicles, road machinery, equipment, or
tools, the board
may offer
to sell the motor vehicles, road
machinery, equipment,
or tools to
that person or firm, and to
have
the selling price
credited to
the
person or firm against
the purchase price of
other motor
vehicles,
road machinery,
equipment, or tools.
(4) If the board advertises for bids for the sale of
new
motor vehicles, road machinery, equipment, or tools to the
township, it may include in the same advertisement a notice of
the
willingness of the board to accept bids for the purchase of
township-owned motor vehicles, road machinery, equipment, or
tools
which that are obsolete or not needed for public use, and to
have
the
amount of
those bids subtracted from the selling
price of
the
new
motor vehicles, road machinery, equipment, or
tools, as a
means of
determining the lowest responsible bidder.
(5) When a township has title to real property, the board of
township
trustees, by resolution,
may authorize the
transfer and
conveyance of
that property to any other
political subdivision of
the state upon such terms as are agreed
to between
the board and
the legislative authority of
that political subdivision.
(6)
When a township has title to real property and the board
of township trustees wishes to sell or otherwise transfer the
property, the board, upon a unanimous vote of its members and by
resolution, may authorize the transfer and conveyance of that real
property to any person upon whatever terms are agreed to between
the board and that person.
(7) If the board of township trustees determines that
township personal property is not needed for public use, or is
obsolete or unfit for the use for which it was acquired, and that
the property has no value, the board may discard or salvage that
property.
(B) When the board has offered property at public auction
under
this section and has not received an acceptable offer, the
board, by
resolution, may enter into a contract, without
advertising or bidding, for the
sale of that property. The
resolution shall specify a minimum acceptable
price and the
minimum acceptable terms for the contract. The minimum
acceptable
price shall not be lower than the minimum price established for
the
public auction.
(C) Members of the board shall consult with the Ohio ethics
commission and comply with the provisions of Chapters 102. and
2921. of the Revised Code, with respect to any sale or donation
under division (A)(2) of this section to a nonprofit organization
of which a township trustee, any member of the township trustee's
family, or any business associate of the township trustee is a
trustee, officer, board member, or employee.
(D) Notwithstanding anything to the contrary in division
(A)
or (B) of this section and regardless of the property's value,
the
board may sell personal property,
including
motor vehicles, road
machinery, equipment, tools, or
supplies,
which that is not needed
for public use, is obsolete, or is
unfit for
the use for which it
was acquired, by internet auction.
The board
shall adopt, during
each calendar year, a resolution
expressing
its intent to sell
that property by internet auction.
The
resolution shall include a
description of how the auctions
will be
conducted and shall
specify the number of days for bidding
on the
property, which
shall be no less than fifteen ten days,
including
Saturdays,
Sundays, and legal holidays. The resolution
shall
indicate whether
the township will conduct the auction or
the
board will contract
with a representative to conduct the
auction
and shall establish
the general terms and
conditions of
sale. If
a representative is
known when
the resolution is
adopted, the
resolution shall provide
contact
information such as
the
representative's name, address,
and telephone
number.
After adoption of the resolution, the board shall
publish, in
a newspaper of general circulation in the township, notice of its
intent to sell unneeded, obsolete, or unfit-for-use township
personal
property by internet auction. The notice shall include a
summary
of the information provided in the resolution and shall be
published at least twice. The second and any subsequent notice
shall be published not less than ten nor more than twenty days
after the previous notice. A similar
notice also shall be posted
continually throughout the calendar year in a conspicuous place in
the
board's office, and, if the township maintains a web site on
the
internet, the notice shall be posted continually throughout
the
calendar year at that web site.
When property is to be sold by internet auction, the board or
its representative may establish a minimum price that
will be
accepted for specific items and may establish any other
terms and
conditions for the particular sale, including
requirements for
pick-up or delivery, method of payment, and sales
tax. This type
of information shall be provided on the internet
at the time of
the auction and may be provided before that time
upon request,
after the terms and conditions have been determined
by the board
or its representative.
Sec. 4707.02. (A) No person shall act as an auction firm,
auctioneer,
apprentice auctioneer, or special auctioneer within
this state
without a
license issued by the department of
agriculture. No
auction shall
be conducted in this state except
by
an auctioneer
licensed by
the department.
The department shall not issue or renew a license if the
applicant or licensee has been convicted of a felony or crime
involving fraud or theft in this or another state at any time
during the
ten years immediately preceding application or renewal.
This (B) Division (A) of this section does not apply to any
of the following:
(A)(1) Sales at auction that either are required by law to be
at
auction,
other than sales pursuant to a judicial order or
decree,
or that are conducted by or under the direction of a
public
authority;
(B)(2) The owner of any real or personal property desiring to
sell the property at auction, provided that the property was not
acquired for the purpose of resale;
(C)(3) An auction mediation company;
(D)(4) An auction that is conducted in a course of study for
auctioneers that is approved by the state auctioneers commission
created under section 4707.03 of the Revised Code for purposes of
student training and is supervised by a licensed auctioneer;
(E)(5)(a) An auction that is sponsored by a nonprofit or
charitable organization that is registered in this state under
Chapter 1702. or Chapter 1716. of the Revised Code, respectively,
if the auction only involves the property of the members of the
organization and the auction is part of a fair that is organized
by an agricultural society under Chapter 1711. of the Revised Code
or by the Ohio expositions commission under Chapter 991. of the
Revised Code at which an auctioneer who is licensed under this
chapter physically conducts the auction; or
(b) Sales at an auction sponsored by a charitable, religious,
or civic organization that is tax exempt under subsection
501(c)(3) of the Internal Revenue Code, or by a public school,
chartered nonpublic school, or community school, if no person in
the business of
organizing, arranging, or
conducting an auction
for compensation and no consignor of consigned
items sold
at the
auction, except such organization or school, receives
compensation from the proceeds of the
auction. As used in
division (B)(5)(b) of this section, "compensation" means money, a
thing of value other than participation in a charitable event, or
a financial benefit.
(F)(6) A person licensed as a livestock dealer under Chapter
943. of the Revised Code who exclusively sells livestock and uses
an auctioneer who is licensed under this chapter to conduct the
auction;
(G)(7) A person licensed as a motor vehicle auction owner
under
Chapter 4517. of the Revised Code who exclusively sells
motor
vehicles to a person licensed under Chapter 4517. of the
Revised
Code and who uses an auctioneer who is licensed under
this chapter
to conduct the auction;
(H)(8) A person who sells real or personal property by means
of
the internet.
(C)(1) No person shall advertise or hold oneself out as an
auction firm, auctioneer, apprentice auctioneer, or special
auctioneer without a license issued by the department of
agriculture.
(2) Division (C)(1) of this section does not apply to an
individual who is the subject of an advertisement regarding an
auction conducted under division (B)(5)(b) of this section.
Sec. 4707.20. (A) No Except when conducting an auction under
division (B)(5)(b) of section 4707.02 of the Revised Code, no
person
shall act as an auction firm, auctioneer, or
special
auctioneer
until the person has
first
entered into a written
contract or
agreement in duplicate with
the
owner or consignee of
any property
to be sold, containing the
terms and conditions upon
which the
licensee receives or accepts
the property for sale at
auction. The
contracts or agreements
shall, for a period of two
years, be kept
on file in the office
of
every person so licensed.
No apprentice
auctioneer shall be
authorized to enter into such a
contract or
agreement without the
written consent of the
apprentice
auctioneer's sponsoring
auctioneer, and all contracts
or
agreements shall be made in the
name of and on behalf of the
sponsoring auctioneer. In addition, an apprentice auctioneer shall
not enter into an auction contract for the sale of real property
in the name of the sponsoring auctioneer regardless of whether the
apprentice auctioneer is licensed as a real estate broker or
salesperson.
(B) On all contracts or agreements between an auction firm,
auctioneer,
or
special auctioneer and the owner or consignee,
there shall
appear
a prominent statement indicating that the
auction firm, auctioneer, or
special
auctioneer is licensed by the
department of
agriculture,
and either that the licensee is
bonded
in favor of the state or that an aggrieved person may initiate a
claim against the auction recovery fund created in section 4707.25
of the Revised Code as a result of the licensee's actions,
whichever is applicable.
(C) The auction firm, auctioneer, or special auctioneer who
contracts
with
the owner is liable for the settlement of all money
received,
including the payment of all expenses incurred only by
the
licensee and the distribution of all funds, in connection
with
an
auction.
(D) For purposes of this section, a contract or agreement
shall specify all of the following:
(1) The owner of the property to be sold or the owner's agent
or the consignee;
(2) The date of the auction or a termination date of the
contract or agreement;
(3) The location of the auction;
(4) The terms and conditions of the auction;
(5) All of the fees to be charged by the auctioneer or the
auction firm, which shall include commissions, rentals,
advertising, and labor;
(6) An explanation of the settlement of the auction that
includes the disbursement of interest money, if applicable;
(7) A statement establishing the responsibility for bad
checks, debts, and unpaid auction items;
(8) A statement indicating whether the auction is a reserve
auction or an absolute auction. In addition, the statement shall
include the definition of reserve auction or absolute auction from
section 4707.01 of the Revised Code, as applicable.
(9) A statement of the auctioneer's or auction firm's policy
regarding absentee bidding;
(10) A brief description of the real or personal property to
be sold;
(11) If the sale is of real or personal property at absolute
auction, a statement affirming that the seller of the real or
personal property has a bona fide intention to transfer ownership
of the property to the highest bidder.
Sec. 4707.21. No auction firm, auctioneer, apprentice
auctioneer, or
special
auctioneer
shall willfully neglect or
refuse to furnish
the department of
agriculture
statistics or
other
information in
the auction firm's, auctioneer's, apprentice
auctioneer's, or
special auctioneer's
possession or under
the
auction firm's, auctioneer's,
apprentice auctioneer's, or
special
auctioneer's
control that
the auction firm, auctioneer, apprentice
auctioneer, or special auctioneer
is
authorized to collect; nor
shall
the auction firm, auctioneer, apprentice
auctioneer, or
special
auctioneer neglect or refuse, for
more than
thirty days,
to answer
questions submitted on circulars; nor
shall
the auction
firm, auctioneer,
apprentice auctioneer, or special
auctioneer
knowingly
answer any
such questions falsely; and nor shall
the
auction firm, auctioneer,
apprentice
auctioneer, or special
auctioneer refuse to
obey
subpoenas and
give testimony. Licensees,
as well as charitable, religious, or civic organizations and
schools that sponsor an auction under division (B)(5)(b) of
section
4707.02 of the Revised Code, shall keep records
relative
to any
auction sale for
at least two years from the its date
of
auction.
These
records shall
include
settlement sheets, written
contracts,
and
copies of any advertising that lists
the items for
auction, as
applicable.
Sec. 4707.26. (A)(1) A person who asserts that the person has
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 all 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.
(c) The licensee is not an auction firm.
(d) The loss was not associated with an auction conducted
under division (B)(5)(b) of section 4707.02 of the Revised Code.
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 complaint 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 or
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.
Section 2. That existing sections 307.12, 505.10, 4707.02,
4707.20, 4707.21,
and 4707.26 of the Revised Code are hereby
repealed.
Section 3. Section 505.10 of the Revised Code is presented
in
this act as a composite of the section as amended by both Sub.
H.B. 204 and Sub. H.B. 323 of
the 125th General Assembly. The
General Assembly, applying the
principle stated in division (B) of
section 1.52 of the Revised
Code that amendments are to be
harmonized if reasonably capable of
simultaneous operation, finds
that the composite is the resulting
version of the section in
effect prior to the effective date of
the section as presented in
this act.
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