Revision: June 16, 2010, midnight
HB 598-FN - VERSION ADOPTED BY BOTH BODIES
04Mar2009… 0296h
01/06/10 2429s
01/06/10 0035s
02Jun2010… 2421eba
2010 SESSION
10/05
HOUSE BILL 598-FN
AN ACT relative to the regulation of auctioneers by the state board of auctioneers.
COMMITTEE: Executive Departments and Administration
This bill makes various changes to the regulation of auctioneers licensed by the board of auctioneers, the rulemaking authority of the board, and the enforcement and application of the law on auctioneering.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
04Mar2009… 0296h
01/06/10 2429s
01/06/10 0035s
02Jun2010… 2421eba
09-0311
10/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to the regulation of auctioneers by the state board of auctioneers.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Auctioneers; Definitions. RSA 311-B:1 is repealed and reenacted to read as follows:
311-B:1 Definitions. In this chapter:
I. “Auction” means the sale of real or personal property, or both, in which the sale price of the property offered is increased by competitive bids until the highest accepted bidder becomes the purchaser.
II. “Auctioneer” means a person who engages in, or who by advertising or otherwise holds himself or herself out as being available to engage in, the solicitation or the acceptance of competitive bids for the purchase of real or personal property, or both, at auction, or otherwise engages in auctioneering.
III. “Auctioneering” means the business or act of selling for another real, personal, or mixed property by auction for compensation by fee, commission, or other exchange of value.
IV. “Authorized business organization” means any entity organized for gain or profit and carrying on any business activity within the state of New Hampshire which is:
(a) A corporation or business association having at least one officer holding a valid license issued by the board;
(b) A partnership in which at least one partner holds a valid license issued by the board;
(c) A limited liability company in which the managing member holds a valid license issued by the board;
(d) A sole proprietorship or sole-shareholder corporation in which the sole proprietor or sole shareholder holds a valid license issued by the board; or
(e) A trust in which at least one trustee holds a valid license issued by the board.
V. “Board” means the state board of auctioneers established under RSA 311-B:2.
2 Board of Auctioneers; Rulemaking Authority. RSA 311-B:3 is repealed and reenacted to read as follows:
311-B:3 Rulemaking Authority.
I. The board, with the approval of the secretary of state, shall adopt rules, pursuant to RSA 541-A, relative to:
(a) Procedures for initial, renewal, and reinstatement licensure;
(b) The qualifications of applicants for initial, renewal, and reinstatement licensure in addition to those requirements set by statute, and the means to be used by applicants to demonstrate good professional character;
(c) The establishment of all fees required or authorized under this chapter;
(d) The form and content of applications for initial, renewal, and reinstatement licensure, including a notarized affidavit of completeness and accuracy;
(e) Ethical and professional standards required to be met by each holder of a license under this chapter;
(f) How disciplinary actions by the board shall be implemented for violations of these standards and for misconduct by licensees;
(g) Procedures for the conduct of hearings consistent with the requirements of due process; and
(h) Establishing eligibility for certificates of authorization issued under RSA 311-B:4, III.
II. The board, with the approval of the secretary of state, may adopt rules, pursuant to RSA 541-A, relative to:
(a) Required maintenance of competence including requirements for continuing education;
(b) Procedures for submitting complaints about licensees to the board and for the board’s management of such complaints;
(c) Board approval of auctioneering educational programs; and
(d) Standards governing auctioneering apprenticeships.
3 Auctioneers; Acts Prohibited. RSA 311-B:4 is repealed and reenacted to read as follows:
311-B:4 Acts Prohibited; Use of Name by Business Organization.
I. It shall be unlawful for any person physically located in the state of New Hampshire to:
(a) Knowingly engage in, or offer to engage in, auctioneering for a fee, commission, or other consideration unless such natural person has a valid license under this chapter or such other person is an authorized business organization.
(b) Knowingly make any verbal, written, electronic, or other representation that such person is an auctioneer or is able to perform auctioneering, unless such natural person has a valid license under this chapter or such other person is an authorized business organization.
(c) Recklessly make any verbal, written, electronic, or other representation which would lead a reasonable person to believe that the natural person making the representation is currently licensed as an auctioneer under this chapter or such other person is an authorized business organization.
II. Notwithstanding, subparagraph I(a), an apprentice auctioneer employed by a licensed auctioneer may engage in auctioneering under the direct supervision of the licensed auctioneer.
III. The secretary of state shall not issue a certificate of incorporation to an applicant for incorporation or for registration as a foreign business organization which includes the words “auction, “auctioneer,” or “auctioneering” or any modification or derivative thereof in its corporate or business name or which includes the practice of auctioneering among the objectives for which it is established unless the board shall have issued, with respect to such applicant, a certificate of authorization, a copy of which shall have been presented to the secretary of state. The board shall issue such a certificate only to an authorized business organization. The secretary of state shall decline to register any trade name or service mark which includes such words or modifications or derivatives thereof in its firm or business name except for trade names and service marks of business entities which have presented to the secretary of state proof that they qualify as authorized business organizations under this chapter.
4 New Section; Cease and Desist Orders. Amend RSA 311-B by inserting after section 4 the following new section:
311-B:4-a Cease and Desist Orders.
I. Whenever the board has reasonable cause to believe that any person is engaging in the business of auctioneering without obtaining a license as provided in this chapter or without being an authorized business organization under this chapter, or has engaged or is about to engage in any act or practice constituting a violation of this chapter, or any rule or order under this chapter, the board may, in addition to all actions provided for in this chapter, enter an order requiring such person to cease and desist from such violation. Delivery of such order shall be by hand or registered mail at the principal office of the licensee or other person. The order shall be calculated to give reasonable notice of the rights of the person to request a hearing on the order and shall state the reasons for the entry of the order. A hearing shall be held not later than 10 days after the request for such hearing is received by the board after which and within 20 days of the date of the hearing the board shall issue a further order vacating the cease and desist order or making it permanent as the facts require. All hearings shall comply with RSA 541-A. If the person to whom a cease and desist order is issued fails to appear at the hearing after being duly notified, the person shall be deemed in default, and the proceeding may be decided against the person upon consideration of the cease and desist order, the allegations of which may be deemed to be true. If the person to whom a cease and desist order is issued fails to request a hearing within 30 calendar days of receipt of such order, then such person shall likewise be deemed in default, and the order shall, on the thirty-first day, become permanent, and shall remain in full force and effect until and unless later modified or vacated by the board, for good cause shown.
II. If any person refuses to obey such order, an action may be brought by the board or by the attorney general on the board’s behalf in any superior court in this state to enjoin such person from engaging in or continuing such violation or from doing any act or acts in furtherance of such violation. In any such action, an order or judgment may be entered awarding a temporary or permanent injunction, and awarding the board or the attorney general or both costs in bringing such action. The court shall have the power to enforce obedience to such injunction, in addition to all the court’s customary powers, by a fine not exceeding $10,000 or by imprisonment, or both.
5 Auctioneers; Qualifications; Application. RSA 311-B:5 is repealed and reenacted to read as follows:
311-B:5 Qualifications; Application. The board shall grant licensure to any applicant who:
I. Shall have attained the age of 18 years by the date the board receives the application;
II. Submits professional references or recommendations that comply with other standards specified by rule, certifying that the applicant is trustworthy and competent to auction real, personal, and mixed property in such a manner as to safeguard the interests of the public. Each such recommendation shall set forth the writer’s name, address, and occupation, the extent of the writer’s acquaintanceship with the applicant, the writer’s familiarity with the applicant’s past business experience and dealings, and any additional knowledge of the applicant’s background upon which the writer bases the recommendation;
III. Pays the initial licensure fee;
IV. Files a bond as required under RSA 311-B:8;
V. Has good professional character;
VI. Meets the eligibility standards established by the board through rulemaking;
VII. Pays the examination fee specified by the board through rulemaking if the examination is one developed or administered by the board; and
VIII. Passes an examination administered by the board or an examination administered by another entity and approved by the board through rulemaking.
6 Nonresidents. Amend RSA 311-B:6 to read as follows:
311-B:6 Nonresidents. The board may grant an auctioneer’s license to any applicant who is similarly licensed in any other state, provided the other state’s licensing requirements are substantially equivalent to or higher than those of this state[, and further provided that such person satisfies the requirements of RSA 311-B:5, III and IV].
7 Bond. Amend RSA 311-B:8 to read as follows:
311-B:8 Bond. No license shall be granted until the applicant has filed a bond with the secretary of state in the sum of [$10,000] $25,000, with sureties approved by the secretary of state, conditioned that he or she will properly account for and deliver to the person entitled, all moneys and things of value coming into his or her hands as an auctioneer and will conform to the laws relating to such auctions. All bonds required under this chapter shall be purchased from a reputable company authorized to do business in this state.
8 Renewal and Reinstatement of License. RSA 311-B:10 is repealed and reenacted to read as follows:
311-B:10 Renewal; Reinstatement.
I. An auctioneer license shall be valid for 2 years from the date of issuance, but if the board fails to act on a complete and timely application for license renewal before the expiration date of the license, the license shall remain valid until the board acts on the application.
II. The board shall renew the licenses of those who have met any maintenance of competence or continuing education requirements established by the board, made a timely application for renewal of licensure, and paid the renewal fee.
III. The board is authorized to reinstate licenses on terms established by the board through rulemaking in accordance with RSA 541-A, and to charge a fee for such reinstatement.
9 Disciplinary Actions. RSA 311-B:11 is repealed and reenacted to read as follows:
311-B:11 Disciplinary Action.
I. The board may undertake disciplinary proceedings:
(a) Upon its own initiative; or
(b) Upon written complaint of any person which charges that a person licensed by the board has committed misconduct under paragraph II and which specifies the grounds for the complaint.
II. Misconduct sufficient to support disciplinary proceedings under this section shall include:
(a) The practice of fraud or deceit in procuring or attempting to procure a license to practice under this chapter;
(b) Conviction of a felony;
(c) Violation of the code of ethics established by the board through rulemaking in accordance with RSA 541-A;
(d) Negligent or willful acts performed in a manner inconsistent with the interests of persons relying on the expertise of the licensee;
(e) Addiction to the use of alcohol or other habit-forming drugs to a degree which renders the person unfit to practice under this chapter;
(f) Repeated violation of the provisions of this chapter or the rules adopted by the board; or
(g) Suspension or revocation without reinstatement of a license, similar to one issued under this chapter, in another jurisdiction.
III. Each individual sale or act in connection with the conduct of an auction in violation of any provision of this chapter or any rules adopted by the board shall constitute a separate instance of misconduct. Upon a finding of misconduct, the board may impose one or more of the following disciplinary sanctions:
(a) A fine of not more than $10,000.
(b) A letter of reprimand.
(c) Placement of the auctioneer on probation for a period of time and subject to conditions as the board may specify.
(d) Payment of restitution to each consumer negatively affected by the prohibited act. Proof of such restitution shall be a signed and notarized release executed by the consumer or the consumer’s estate.
(e) Suspension of a license for a period of time established by the board, with or without automatic reinstatement.
(f) Revocation of a license.
(g) Requiring the licensee to participate in a program of continuing education in the area or areas in which he or she has been found deficient or requiring the person to retake the licensing exam, or both.
IV. The board is authorized to add to the order imposing disciplinary sanctions an order for the licensee to pay the costs of investigation in the disciplinary matter.
V. The board may in its own name request the attorney general to seek injunctive relief in the courts of general jurisdiction to restrain any violation or anticipated violation of this section or the board’s rules. When seeking injunctive relief the board may, with the prior approval and supervision of the attorney general, employ an attorney for assistance and representation.
10 Hearings. RSA 311-B:11-a is repealed and reenacted to read as follows:
311-B:11-a Hearings.
I. The board is authorized to perform investigations, to engage in both disciplinary and nondisciplinary proceedings and to settle both disciplinary and nondisciplinary matters. The board is authorized to issue subpoenas for persons and things to assist in its investigations, proceedings, and settlements.
II. The board shall hold a hearing or take other action on each written complaint of licensee misconduct submitted to the board, no later than 3 months after the date that notice of a complaint was received by the licensee from the board, unless otherwise agreed to by the board, the licensee, and the complainant. All complaints shall be objectively received and fairly heard by the board.
III. Upon receiving a complaint of misconduct by a licensee, the board shall respond to the complaint by denying jurisdiction over the matter complained about or opening an investigation into the matter. The fact and nature of the investigation and its results shall be held confidential from the public, excluding the licensee, except as they appear during disciplinary proceedings.
IV. Rehearings and appeals from a decision of the board relative to disciplinary action shall be in accordance with RSA 541.
11 Penalties. Amend RSA 311-B:12 to read as follows:
311-B:12 Penalties. Any person violating the provisions of RSA [311-B] 311-B:4, I and not exempt under RSA 311-B:13 shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.
12 Exceptions; Internet and Electronic Means Added. Amend RSA 311-B:13 to read as follows:
311-B:13 Exceptions.
I. This chapter shall not apply to any auctions held by order or judgment of any court of the state or the United States or by any officer of a municipality, county, state of United States, foreclosure sales by mortgagees, lienholders, or holders of any other kinds of security interests in real, personal, or mixed property or to sales conducted or made by sheriffs, deputy sheriffs, constables, collectors of taxes, executors, administrators, guardians, conservators, receivers, assignees under voluntary assignments for the benefit of creditors or insurers, or by any other person required by law to sell real, personal, or mixed property, or as permitted under any other state or federal law.
II. Any resident member of a charitable, educational, religious or other nonprofit organization within the state may conduct a charity auction without a license for that organization, so long as [no fee is charged for that service] the individual is not a member of the organization solely for the purpose of conducting the charity auction, and so long as the individual receives no compensation or other consideration for conducting the auction.
III. [Repealed.]
IV. Any individual may, without being licensed, sell his or her own personal property through competitive bidding, using any electronic or non-electronic means.
V. Any individual may, without being licensed, sell the personal property of another individual utilizing a service that assists such individual in accessing an online Internet marketplace, who does not take physical or legal possession of goods being sold, and who does not collect or transmit payment for transactions except by a secure money transmitter or other online payment transaction method. Such an individual may accept an associated fee, provided that such individual does not:
(a) Represent by any verbal statement, sign, letterhead, card, or any other way that he or she is an auctioneer or able to perform auctioneering services; or
(b) Use or otherwise assume in conjunction with the personal name, or advertise any title or description tending to convey the impression that such person is an auctioneer licensed under this chapter.
13 Regulation of Auctions; Definition of Auction. Amend RSA 358-G:1, I to read as follows:
I. “Auction” means the [public] sale of [property] real or personal property, or both, in which the sale price of the property offered is increased by competitive bids until the highest [acceptable] accepted bidder becomes the purchaser, pursuant to RSA 311-B.
14 Repeal. RSA 311-B:7, relative to application for licensure, is repealed.
15 Effective Date. This act shall take effect January 1, 2011.
LBAO
09-0311
Amended 03/31/10
HB 59-FN - FISCAL NOTE
AN ACT relative to the regulation of auctioneers by the state board of auctioneers.
FISCAL IMPACT:
The Judicial Branch, the Judicial Council, the Department of Justice, the Department of State, and the New Hampshire Association of Counties state this bill, as amended by the Senate (Amendments #2009-2429s and #2010-0035s), may increase state and county expenditures by an indeterminable amount in FY 2010 and each year thereafter. The Department of State states this bill may increase state revenue by an indeterminable amount in FY 2010 and each year thereafter. There will be no fiscal impact on local expenditures or county and local revenue.
METHODOLOGY:
The Judicial Branch states this bill amends RSA 311-B relative to the regulation of auctioneers by the state board of auctioneers, the rulemaking authority of the board and the enforcement and application of the law on auctioneering. The Branch estimates that there are 3 aspects of the bill that have a potential fiscal impact. The first aspect concerns the cease and desist order provisions in proposed RSA 311-B:4-a, which would prevent any persons who violated the requirements set forth in this bill from continuing to violate these requirements and could be appealed to the New Hampshire Supreme Court. The Branch has no way of estimating how many cases would be appealed to the Supreme Court, however, if a single case were to be appealed to that body, the fiscal impact would be in excess of $10,000. The second aspect relates to the actions that would follow refusal to obey any cease and desist orders as referred to in the first aspect. Such refusal will be met with attempts at enforcement through injunction petitions or other enforcement actions typically filed in Superior Court and being categorized as a complex equity case. Again, the Branch has no way of estimating how many actions in Superior Court would result due to this legislation, however it can estimate that the cost of an average complex equity case in FY 2010 and each year thereafter would be $506.50. These actions in Superior Court could also be appealed to Supreme Court, where the fiscal impact of a single case would be in excess of $10,000. The third aspect is the expansion of the list of acts subject to the law’s penalty provision, which dictates that violation of the bill’s provisions results in an unspecified misdemeanor for a natural person or a routine felony for all other persons. The Branch has no way of estimating the number of cases that these proposed changes would generate, however it can estimate that the cost of processing an average unspecified misdemeanor in district court is $35.75 in FY 2010 and each year thereafter. The cost of processing the average felony is estimated at $335.98 in FY 2010 and each year thereafter. Both the misdemeanor and felony cases would also have the possibility of being appealed to the Supreme Court and its associated costs. In determining average case costs, the Branch did not factor in any potential pay raises.
The Judicial Council states that this bill will have an indeterminable impact on general fund expenditures. The Council states that history has shown that few natural persons charged under current law have been eligible for indigent defense and it cannot determine what effects the proposed changes would have on the number of cases. The Council also stated that only ‘natural persons’ qualify for indigent defense, so it would only be potentially responsible for misdemeanor cases. ‘All other persons’ (i.e. corporations) and the associated felony charge would not be eligible for indigent defense. The Council states if an individual is found to be indigent, the flat fee of $275 per misdemeanor is charged by a public defender or contract attorney. If an assigned counsel attorney is used, the fee is $60 per hour with a cap of $1,400 for a misdemeanor charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.
The Department of Justice states this bill will increase the Department’s expenditures by an indeterminable amount, for the cost of an assistant attorney general to draft the items required under the Board’s expanded rulemaking authority, and the cost of various staff members to investigate and prosecute any violations of the bill’s provisions. The Department is unable to estimate how many cases would be investigated and/or prosecuted by the Department or appealed to the Supreme Court.
The Department of State states the bill may increase state revenue, but cannot estimate the number of potential fines to be assessed or the possible dollar amounts of these fines. The Department does not anticipate any increased cost associated with this bill.
The New Hampshire Association of Counties states to the extent an individual is prosecuted, convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained or incarcerated as a result of this bill. The average cost to incarcerate an individual in a county facility is $30,165 a year.