GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1991
CHAPTER 819
The General Assembly of North Carolina enacts:
Section 1. G.S. 85B-1 reads as rewritten:
"§ 85B-1. Definitions.
For the purposes of this Chapter the following definitions shall apply:
(1) 'Auction' means the
sale of goods or real estate by means of exchanges between an auctioneer and
members of his an audience, the exchanges consisting of a series
of invitations for offers made by the auctioneer, offers by members of the
audience, and the acceptance by the auctioneer of the highest or most favorable
offer.
(2) 'Auctioneer' means any
person who conducts or offers his service to conduct auctions and
includes apprentice auctioneers except as stricter standards are specified by
this Chapter for apprentice auctioneers.
(3) 'Owner' means the bona
fide owner of the property being offered for sale; in the case of
partnerships, 'owner' means a general partner in a partnership that owns the
property being offered for sale, provided that in the case of a limited
partnership it has filed a certificate of limited partnership as required by
Chapter 59 of the General Statutes; in the case of corporations, 'owner'
means an officer or director or employee or someone acting on behalf of the
employee of a corporation that owns the property being offered for sale and
that is qualified provided that the corporation is registered to do
business in the State of North Carolina. State.
(4) 'Absolute Auction' means the sale of real or personal property at auction in which the item offered for auction is sold to the highest bidder without reserve, without the requirement of any minimum bid, and without competing bids of any type by the owner, or agent of the owner, of the property.
(5) 'Estate Sale' means the liquidation by sale at auction of real or personal property of a specified person.
(6) 'Auction Firm' means a sole proprietorship of which the owner is not a licensed auctioneer, or any partnership, association, or corporation, not otherwise exempt from this Chapter, that sells either directly or through agents, real or personal property at auction, or that arranges, sponsors, manages, conducts or advertises auctions, or that in the regular course of business uses or allows the use of its facilities for auctions. This definition applies whether or not an owner or officer of the business acts as an auctioneer.
(7) 'Fund' means Auctioneer Recovery Fund."
Sec. 2. G.S. 85B-2 reads as rewritten:
"§ 85B-2. Activities governed by Chapter.
(a) This Chapter shall apply to all auctions held in this State except the following:
(1) Sales at auction conducted by the owner of all of the goods or real estate being offered, or an attorney representing the owner, unless the owner's regular course of business includes engaging in the sale of goods or real estate by means of auction or unless the owner originally acquired the goods for the purposes of resale at auction;
(2) Sales at auction conducted by or under the direction of any public authority;
(3) Sales at auction
pursuant to a judicial order or in the settlement of a decedent's estate; Sales
conducted by a receiver, trustee, guardian, administrator or executor or any
similarly appointed person under order of any court or any person conducting a
sale pursuant to an order of a United States Bankruptcy Court or the agent or
attorney of such person, receiver, trustee, guardian, administrator or
executor;
(4) Any sale required by law to be at auction;
(5) Sale of livestock at a public livestock market authorized and regulated by the Commissioner of Agriculture;
(6) Leaf tobacco sales conducted in accordance with the provisions of Chapter 106 of the General Statutes;
(7) Sale at auction of automobiles conducted under the provisions of G.S. 20-77, or sale at auction of motor vehicles by a motor vehicle dealer licensed under Article 12, Chapter 20 of the General Statutes;
(8) Sale at auction of a
particular brand breed of livestock conducted by an auctioneer
who specializes in the sale of that brand breed when such sale is
conducted under the auspices of a livestock trade association; provided that
the sale is regulated by the Packers and Stockyards Act and the auctioneer is
required to be bonded by the United States Department of Agriculture;
(9) Sales conducted by and
on behalf of any charitable or religious organization; organization
if the person conducting the sale receives no compensation therefor;
(9a) Sales conducted by and on behalf of a civic club, not exceeding one sale per year;
(10) Sales conducted by a trustee pursuant to a power of sale contained in a deed of trust on real property;
(11) Sales of collateral, sales conducted to enforce carriers' or warehousemen's liens, bulk sales, sales of goods by a presenting bank following dishonor of a documentary draft, resales of rightfully rejected goods, resales of goods by an aggrieved seller, or other resales conducted pursuant to authority in Articles 2, 4, 6, 7 and 9 of Chapter 25 of the General Statutes (the Uniform Commercial Code).
(b) The exceptions provided in subdivisions (2), (4), (9), (9a) and (11) of subsection (a) of this section shall not apply to any person or entity engaged in the business of organizing, arranging, or conducting auction sales for compensation."
Sec. 3. G.S. 85B-3 reads as rewritten:
"§ 85B-3. Auctioneers Commission.
(a) There shall be a five-member North Carolina Auctioneers Commission having the powers and responsibilities set out in this Chapter. The Governor shall appoint the members of the Commission, at least three of whom, and their successors, shall be from nominations submitted by the Auctioneers Association of North Carolina. The Auctioneers Association shall submit, within 45 days of when the vacancy occurs, at least three names for each position for which it is entitled to make a nomination. Of the initial five members of the Commission one shall be appointed for a one-year term, two shall be appointed for two-year terms and two for three-year terms; thereafter, each new member shall be appointed for a term of three years. Any vacancy shall be filled for the remainder of the unexpired term only. Each member shall continue in office until his successor is appointed and qualified. No member shall serve more than two complete consecutive terms.
(b) At least three
members of the Commission shall be experienced auctioneers who are licensed
under this Chapter. One member shall be a person who shall represent the public
at large and shall not be licensed under this Chapter. The Governor shall
appoint a public member to fill the first vacancy on the Commission after July
1, 1983.
(c) The Commission shall
employ a secretary-treasurer an executive director and such other
employees as needed to carry out the duties of this Chapter. All employees
shall serve at the pleasure of the Commission.
(d) Any action that may be taken by the Commission may be taken by vote of any three of its members.
(e) The members of the Commission shall elect from among themselves a chairman to serve a one-year term. No person shall serve more than two consecutive terms as chairman.
(f) The Commission
shall receive and act upon applications for auctioneer licenses, issue and
suspend and revoke licenses, adopt rules and regulations for auctioneers and auctions,
auctions that are consistent with the provisions of this Chapter and the
General Statutes, and issue declaratory rulings. and take such other
actions as may be necessary to see that the provisions of this Chapter are
carried out. The Commission may make and enforce reasonable rules and
take other actions necessary to administer and enforce the provisions of this
Chapter.
(g) Members of the Commission shall receive the compensation set for members of occupational licensing boards by G.S. 93B-5."
Sec. 4. G.S. 85B-4 reads as rewritten:
"§ 85B-4. Licenses required.
(a) No person who is
not exempt under G.S. 85B-2, shall sell, or offer his services to
sell, goods or real estate at auction in this State or perform any act for
which an auction firm license is required unless he the person holds
a currently valid auctioneer or apprentice auctioneer license. license
issued under this Chapter.
(b) No person shall be
licensed as an apprentice auctioneer or as an auctioneer if he: auctioneer,
auctioneer, or receive an auction firm license if the person:
(1) Is under 18 years of age;
(2) Repealed by Session Laws 1983, c. 751, s. 6, effective August 1, 1983.
(3) Has within the
preceding five years pleaded guilty to to, entered a plea of nolo
contendere or been convicted of any felony; or felony, or
committed or been convicted of any act involving fraud or moral turpitude;
(4) Has had an auctioneer
or apprentice auctioneer or auction firm license revoked. revoked;
or
(5) Has, within the preceding five years, committed any act which constitutes grounds for license suspension or revocation under this Chapter or a Commission rule.
(c) Each applicant for an
apprentice auctioneer license shall submit a written application in a form
approved by the Commission and containing at least two statements by residents
of North Carolina the community in which the applicant resides attesting
to the applicant's good moral character.
(c1) Each apprentice auctioneer
application and license shall name a licensed auctioneer to serve as the
supervisor of the apprentice. No apprentice auctioneer may enter into an
agreement to conduct an auction, or conduct an auction, without the express
approval of his supervisor. The supervisor shall review all contracts
before approving them and shall regularly review the records his apprentice
is required to maintain under G.S. 85B-7 and to see that they are
accurate and current. current, and shall perform such other
supervisory duties as may be required by the Commission.
(d) No person shall be
licensed as an auctioneer unless he the person has held an
apprentice auctioneer license and served as an apprentice auctioneer for the
two preceding years, accumulated sufficient knowledge and experience in such
areas of the auctioneer profession as the Commission may deem appropriate, and
has taken an examination approved by the Commission and performed on it to the
satisfaction of the Commission. The examination shall test the
applicant's understanding of the law relating to auctioneers and auctions,
ethical practices for auctioneers, the mathematics applicable to the auctioneer
business, and such other matters relating to auctions as the Commission considers
appropriate. The examination shall be given at least twice each year in
Raleigh, and at such other times and places as the Commission
designates, but no person shall be allowed to take the examination within six
months after having failed it a second time.
Any person who has been in the auctioneer business in this State for at least two years prior to the effective date of this act, and who makes proper application to the Commission within one year after July 1, 1973, may be licensed as an auctioneer without holding an apprentice license and serving as an apprentice of two years, and without taking the examination required by this subsection. Any person who has successfully completed the equivalent of at least 80 hours of classroom instruction in a course in auctioneering at an institution approved by the Commission may be licensed as an auctioneer without holding an apprentice license and serving as an apprentice for two years, but must take the examination required by this subsection and perform on it to the satisfaction of the Commission.
Each applicant for an auctioneer license shall submit a
written application in a form approved by the Commission. If the
applicant has been previously licensed as an apprentice auctioneer, the
application shall contain an evaluation by the applicant's supervisor of his
the applicant's performance as an apprentice auctioneer. auctioneer
and the applicant's performance in specific areas as required by the
Commission. If the applicant is exempted from apprenticeship because
he has completed the after completion of the equivalent of at least
80 hours of classroom instruction in auctioneering, the application shall
contain a transcript of his the applicant's course work in
auctioneering. Each application shall be accompanied by statements of at
least two residents of North Carolina the community in which the
applicant resides attesting to the applicant's good moral character.
The Commission may require verification of any information included in an
application for an auctioneer license. license and may request other
information or verification of information provided to determine whether the
applicant possesses the good moral character or other qualifications for
licensure.
(e) Each license issued
under this Chapter shall be valid from July 1 of the year issued, or from the
date issued, whichever is later, to the following June 30 of the
succeeding year and may be unless sooner revoked or suspended pursuant
to this Chapter or a rule of the Commission. A license may be renewed
for one year at a time, except an apprentice auctioneer license may not be
renewed for more than three times. No examination shall be required for
renewal of an auctioneer license if the application for renewal is made within 12
24 months of the expiration of the previous license.
(f) No person shall
be issued an auctioneer or apprentice auctioneer license until he the
person has made the contribution to the Auctioneer Recovery Fund as
required by G.S. 85B-4.1.
(g) A sole proprietorship,
partnership, or corporation which in the regular course of business promotes
auctions, employs auctioneers to conduct auctions in its facilities, or uses or
allows the use of its facilities for auctions, An auction firm must
be licensed as an auctioneer business even though no owner or officer of that
business acts as an auctioneer. To be licensed as an auctioneer business the
sole proprietorship, partnership or corporation an auction firm must
make the contribution to the Auctioneer Recovery Fund as required by
G.S. 85B-4.1 and must pay the proper fees as set out in G.S. 85B-6, but is
not otherwise required to meet qualifications for an auctioneer license. G.S.
85B-6. Licensed auctioneer businesses shall be Auction firms are covered
by the provisions of G.S. 85B-8.
An auction firm license issued by the Commission is restricted to the persons named in the license and does not inure to the benefit of any other person. Where a license is issued to an auction firm, authority to transact business under the license is limited to the person or persons designated in the application and named in the license.
The designated person or persons, prior to being licensed, shall be required to take a written examination, approved by the Commission, and demonstrate to the satisfaction of the Commission a thorough understanding of the law relating to the conduct of the auction business and other matters the Commission deems appropriate. An individual who is licensed as an auctioneer and who is the designated person applying for an auction firm license is not required to take the auction firm examination. Licensed real estate brokers and real estate firms may be exempt from the auction firm examination provided they employ or associate themselves with a licensed auctioneer to handle those aspects of the transactions peculiar to the auctioneer profession. Any person or entity, on the effective date of this Chapter, duly licensed as an auction firm in good standing is not required to take any examination in order to maintain or to renew auction firm license provided that the license does not otherwise expire or lapse and is not suspended or revoked by the Commission.
(h) The Commission shall
publish at least once a year a list of names and addresses of all persons,
sole proprietorships, partnerships and corporations holding valid
apprentice auctioneer or auctioneer licenses or designated as licensed
auctioneer partnerships or corporations. auctioneer, auctioneer, or
auction firm licenses.
(i) The Commission may investigate as it deems necessary the ethical background of any applicant for licensure under this Chapter."
Sec. 5. G.S. 85B-4.1 reads as rewritten:
"§ 85B-4.1. Auctioneer Recovery Fund.
(a) In addition
to the license fees provided for elsewhere in this Chapter, upon the
application for a license or the renewal of a license, or both, the Commission
may charge the applicant or licensee an amount not to exceed fifty dollars
($50.00) per year to be included in the Auctioneer Recovery Fund (hereinafter
the Fund).
(b) The
purposes of the Fund shall be as follows:
(1) When an
auctioneer, apprentice auctioneer, or auctioneer business has been found guilty
of violating any of the provisions of G.S. 85B or the rules promulgated
thereunder, and upon the entry of a final agency decision by the Commission or
if appealed, a court order, the Commission is authorized to pay the aggrieved
party or parties an aggregate amount not to exceed ten thousand dollars
($10,000) against any one auctioneer, apprentice auctioneer, or auctioneer
business, provided that the auctioneer, apprentice auctioneer, or auctioneer
business has refused to pay such claim within a period of 20 days of entry of
the final agency decision or court order and provided further that the amount
or amounts of money in question are certain and liquidated.
(2) The Commission
shall maintain a minimum level of one hundred thousand dollars ($100,000) for
recovery and guaranty purposes. These funds may be invested and reinvested by
the State Treasurer in interest bearing accounts, such interest accrued being
added to the Fund. Sufficient liquidity will be maintained so that there will
be money available to satisfy any and all claims which may be processed through
the Board. The Fund may be disbursed by a warrant drawn against the State
Treasurer or other method at the discretion of the State Treasurer.
(3) The
Commission, in its discretion, may use any and all funds in excess of one
hundred thousand dollars ($100,000) for the following purposes:
a. To
carry out the advancement of education and research in the auctioneering
profession for the benefit of those licensed under the provisions of this
Chapter and the improvement of and making even more efficient the industry as
such;
b. To
underwrite educational seminars, training centers, and other forms of
educational projects for the use and benefit generally of licensees;
c. To
sponsor, contract for and to underwrite any and all other educational and
research projects of a similar nature having to do with the advancement of the
auctioneer profession in North Carolina; and
d. To
cooperate with associations of auctioneers and any and all other groups for the
enlightenment and advancement of the auctioneer profession of North Carolina.
(a) In addition to license fees, upon application for a license or renewal of a license, the Commission may charge the applicant or licensee up to fifty dollars ($50.00) per year to be included in the Fund.
(b) The Commission shall maintain at least one hundred thousand dollars ($100,000) in the Fund for use as provided in this Chapter. The Fund may be invested by the State Treasurer in interest bearing accounts, and any interest accrued shall be added to the Fund. Sufficient liquidity shall be maintained to insure that funds will be available to satisfy claims processed through the Board. The Fund may be disbursed by a warrant drawn against the State Treasurer or by other method at the discretion of the State Treasurer.
(c) The Commission, in its discretion, may use contents of the Fund in excess of one hundred thousand dollars ($100,000) for the following purposes:
(1) To promote education and research in the auctioneer profession, in order to benefit persons licensed under this Chapter and to improve the efficiency of the profession;
(2) To underwrite educational seminars, training centers, and other forms of educational projects for the use and benefit of licensees;
(3) To sponsor, contract for, or underwrite education and research projects in order to advance the auctioneer profession in North Carolina; and
(4) To cooperate with associations of auctioneers, or other groups, in order to promote the enlightenment and advancement of the auctioneer profession in North Carolina."
Sec. 6. G.S. 85B-4.2 reads as rewritten:
"§
85B-4.2. Special provisions. Grounds for payment; notice and
application to Commission.
(a) In the
event that an auctioneer, apprentice auctioneer, or auctioneer business is
found guilty of violating any of the provisions of G.S. 85B or the rules
promulgated thereunder, and if the amount of money lost by the aggrieved party
or parties is in dispute or cannot be determined accurately, then the amount of
damages shall be determined by the superior court in the county where the
alleged violation took place, provided that the Board has previously determined
that a violation of the license laws or rules and regulations has occurred and
a final agency decision has been entered.
(b) If such
final agency decision has been entered and the rights of the licensee have been
finally adjudicated, then the superior court shall make a finding as to the
monetary damages growing out of the aforesaid violation or violations.
An aggrieved person who has suffered a monetary loss as a direct result of the conversion of funds or property or other fraudulent act or conduct by a licensed auctioneer, apprentice auctioneer, or auction firm shall be eligible to seek compensation from the Fund subject to the limitations of this Chapter and the amount of loss which is otherwise unrecoverable provided that:
(1) The aggrieved person has sued the licensee in a court of competent jurisdiction and has filed with the Commission written notice of such lawsuit within 60 days after its commencement unless the total loss claimed excluding attorneys' fees is less than two thousand five hundred dollars ($2,500), in which case the notice may be filed within 90 days after the termination of all judicial proceedings, including appeals;
(2) The aggrieved person has obtained final judgment in a court of competent jurisdiction against the licensee based upon conversion or other fraudulent conduct arising out of a transaction which occurred when the licensee was licensed by the Commission and was acting in a capacity for which a North Carolina license is required, which judgment shall show the amount owed the aggrieved person;
(3) The aggrieved person was not engaged in any act or conduct for which an auctioneer license is required and was not acting in violation of any of the laws of the State of North Carolina or of the United States; and
(4) Execution on the judgment has been issued and has been returned unsatisfied in whole or in part.
Upon the termination of all judicial proceedings including appeals, and for a period of one year thereafter, a person eligible for recovery may file a verified application with the Commission for payment out of the Fund of the amount remaining unpaid upon the judgment which represents the actual and direct loss sustained by reason of conversion or other fraudulent conduct. A certified copy of the judgment and return of execution shall be attached to the application and filed with the Commission. The applicant shall serve upon the judgment debtor a copy of the application and shall file with the Commission an affidavit or certificate of service, in accordance with the procedures specified by rule by the Commission."
Sec. 7. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-4.3. Hearing; required showing.
Upon application by an aggrieved person, the Commission shall conduct a hearing and the aggrieved person shall be required to show that:
(1) The person is not a spouse of the judgment debtor or a person representing such spouse;
(2) The person gave notice of the lawsuit as required by G.S. 85B-4.2;
(3) The person is making application not more than one year after termination of all judicial proceedings, including appeals, in connection with the judgment;
(4) The person has complied with all requirements of this Article;
(5) The person has obtained a judgment as described in G.S. 85B-4.2;
(6) The person has made all reasonable searches and inquiries to ascertain whether the judgment debtor is possessed of real or personal property or other assets subject to be sold or applied in satisfaction of the judgment;
(7) That by a search the person has discovered no real or personal property or other assets subject to be sold or applied, or has discovered certain of them, describing them, but that the amount realized was insufficient to satisfy the judgment, stating the amount realized and the balance remaining due on the judgment after application of the amount realized; and
(8) The person has diligently pursued available remedies including attempted execution on the judgment against all the judgment debtors and the execution has been returned unsatisfied. In addition to that, the person knows of no assets of the judgment debtor and has attempted collection from all other persons who may be liable in the transaction for which payment is sought from the Fund if there are any other persons."
Sec. 8. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-4.4. Response and defense by Commission and judgment debtor; proof of conversion or other fraudulent act.
(a) When the Commission proceeds upon an application as set forth in this Article, counsel for the Commission may defend action on behalf of the Fund and shall have recourse to all appropriate means of defense, including the examination of witnesses. The judgment debtor may personally defend the action and shall have recourse to all appropriate means of defense, including the examination of witnesses. Within 30 days after service of the application, counsel for the Commission and the judgment debtor may file responses setting forth answers and defenses. Responses shall be filed with the Commission and copies shall be served upon every party by the filing party. If at any time it appears there are no triable issues of fact and the application for payment from the Fund is without merit, the Commission shall dismiss the application. A motion to dismiss may be supported by affidavit of any person having knowledge of the facts and may be made on the basis that the application or the judgment referred to does not form a basis for meritorious recovery under G.S. 85B-4.2, that the applicant has not complied with the provisions of this Article, or that the liability of the Fund with regard to the particular licensee or transaction has been exhausted; provided, however, notice of such motion shall be given at least 10 days prior to the time fixed for hearing.
(b) Whenever the judgment obtained by an applicant is by default, stipulation, or consent, or whenever the action against the licensee was defended by a trustee in bankruptcy, the applicant, for purposes of this Article, shall have the burden of proving the cause of action for conversion of funds or property or other fraudulent conduct. Otherwise, the judgment shall create a rebuttable presumption of conversion or other fraudulent conduct."
Sec. 9. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-4.5. Determination of certain small claims without a prior judicial determination.
Notwithstanding any other provisions of this Chapter, the Commission may, in its discretion, order that payment be made from the Fund, without requiring a prior judicial determination in any case where:
(1) The total loss claimed by the claimant is two thousand five hundred dollars ($2,500) or less;
(2) The amount of alleged loss is readily ascertainable rather than speculative in nature;
(3) The alleged loss is one that is otherwise compensable under this Chapter;
(4) The claimant filed a properly notarized complaint with the Commission not more than one year following the date of the alleged wrongful act or conduct of the licensee; and
(5) The Commission, in 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."
Sec. 10. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-4.6. Order directing payment out of Fund; compromise of claims.
(a) Applications for payment from the Fund shall be heard and decided by a majority of the members of the Commission. If, after a hearing, the Commission finds that the claim should be paid from the Fund, the Commission shall enter an order requiring payment from the Fund of whatever sum the Commission shall find to be payable upon the claim in accordance with the limitations contained in this Article.
(b) Subject to Commission approval, a claim based upon the application of an aggrieved person may be compromised; however, the Commission shall not be bound in any way by any compromise or stipulation of the judgment debtor."
Sec. 11. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-4.7. Limitations; pro rata distribution; attorneys' fees.
(a) Payments from the Fund shall be subject to the following limitations:
(1) The right to recovery under this Article shall be forever barred unless timely notice is given as required by G.S. 85B-4.2(a)(1) and application is made within one year after termination of all proceedings, including appeals, in connection with the judgment.
(2) The Fund shall not be liable for more than ten thousand dollars ($10,000) per transaction regardless of the number of persons aggrieved.
(3) The liability of the Fund shall not exceed in the aggregate ten thousand dollars ($10,000) for any one licensee within a single calendar year, and in no event shall it exceed in the aggregate twenty thousand dollars ($20,000) for any one licensee.
(4) The Fund shall not be liable for payment of any judgment awards of consequential damages, multiple or punitive damages, civil penalties, incidental damages, special damages, interest, costs of court or action, or other similar awards.
(b) If the maximum of the Fund is insufficient to pay in full the valid claims of all aggrieved persons whose claims relate to the same transaction or to the same licensee, the amount for which the Fund is liable shall be distributed among the claimants in a ratio that their respective claims bear to the total of such valid claims or in a manner the Commission deems equitable. Upon petition of the Commission, the Commission may require all claimants and prospective claimants to be joined in one proceeding so that the respective rights of all claimants to the Fund may be equitably resolved."
Sec. 12. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-4.8. Repayment to Fund; automatic suspension of license.
Should the Commission pay from the Fund any amount in settlement of a claim or toward satisfaction of a judgment against a licensee, the license of the licensee shall be automatically suspended upon the effective date of the order authorizing payment from the Fund. The licensee shall not be eligible for consideration for reinstatement until repayment in full, plus interest at the legal rate as provided for in G.S. 24-1, the amount paid from the Fund."
Sec. 13. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-4.9. Subrogation of rights.
When the Commission has paid from the Fund any sum to the judgment creditor, the Commission shall be subrogated to all of the rights of the judgment creditor to the extent of the amount paid and the judgment creditor shall assign all his right, title, and interest in the judgment to the extent of the amount paid to the Commission and any amount and interest recovered by the Commission on the judgment shall be deposited in the Fund."
Sec. 14. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-4.10. Waiver of rights.
The failure of an aggrieved person to comply with this Chapter shall constitute a waiver of any rights hereunder."
Sec. 15. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-4.11. Persons ineligible to recover from Fund.
No licensee who suffers the loss of any commission from any transaction in which the licensee was acting in the capacity of an auctioneer, apprentice auctioneer, or auction firm shall be entitled to make application for payment from the Fund for the loss. Likewise, any person who suffers any monetary loss as a result of a joint business venture of any sort with a licensee shall not be entitled to be compensated from the Fund for the loss."
Sec. 16. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-4.12. Disciplinary action against licensee.
Nothing contained in this Article shall limit the authority of the Commission to take disciplinary action against any licensee under this Chapter, nor shall the repayment in full of all obligations to the Fund by any licensee nullify or modify the effect of any other disciplinary proceeding brought under this Chapter."
Sec. 17. G.S. 85B-5 reads as rewritten:
"§ 85B-5. Licensing of nonresidents.
(a) Any person who
holds a valid auctioneer license in another state may apply for and be granted
a reciprocal North Carolina license if the resident state in
which he the person is licensed has minimum training or
experience standards which are acceptable to the Commission but are not more
lenient than those required by this Chapter. Chapter, if the resident
state extends similar reciprocal privileges to auctioneers who are residents of
and licensed by the State of North Carolina.
(b) An applicant
under this section shall submit an application and other documentation and
proof of eligibility for licensure as may be required by the Commission, but shall
not be required to take the examination required under G.S. 85B-4 but G.S.
85B-4. Applicants shall pay the appropriate fee under G.S. 85B-6 and
shall file with the Commission an irrevocable consent that service on the secretary
Executive Director of the Commission shall be sufficient service of
process for actions against the applicant by a resident of this State arising
out of his auctioneering activities.
(c) An applicant
under this section shall make the contribution to the Auctioneer Recovery Fund
as required by G.S. 85B-4.1. Any license issued under this section shall
be marked to indicate that its holder is a nonresident. nonresident
reciprocal licensee.
(d) A license issued pursuant to this section shall be valid from the date of issuance to the following June 30 and may be renewed from year to year unless suspended or revoked pursuant to the provisions of this Chapter or rule of the Commission, provided that the licensee continues to be a resident of and duly licensed in good standing in the licensee's resident state.
(e) Any person licensed under this section shall notify the Commission of the lapse, surrender, suspension, revocation, or any other act amounting to a loss of license in the person's resident state. The notice must be sent to the Commission, by certified mail, return receipt requested, within 10 days of the occurrence.
(f) Any person licensed under this section shall provide the Commission with written notice of any change of business address or residence within 10 days of the occurrence.
(g) Any license issued under this section shall be immediately suspended or revoked based upon the occurrence of any of the events set out in subsection (e) of this section or based upon a change of principal state residence of the reciprocal licensee.
(h) Any person whose license is terminated as a result of a change of principal state residence may reapply for reciprocal status provided the person is otherwise eligible for a license based upon the new state residence, and submits with the application the fees required by the Commission.
(i) Notwithstanding any other provision of this section, a reciprocal licensee who subsequently becomes a domiciliary of the State of North Carolina may request, by application, that the reciprocal license be converted to that of an in-State licensee without having to take the State exam required by G.S. 85B-4. The Commission may, however, require an applicant to pay processing and application fees it deems appropriate."
Sec. 18. G.S. 85B-6 reads as rewritten:
"§ 85B-6. Fees; local governments not to charge fees or require licenses.
(a) The Commission shall collect and remit to the State Treasurer fees in an amount not to exceed the following: fifty dollars ($50.00) for application for apprentice auctioneer license; twenty-five dollars ($25.00) for apprentice auctioneer license for one year; twenty-five dollars ($25.00) for application for auctioneer license and for examination; one hundred dollars ($100.00) for auctioneer license for one year; seventy-five dollars ($75.00) for designation as licensed auctioneer business.
(b) No local government or agency of local government may charge any fees or require any licenses for auctioneers, apprentice auctioneers, or auctioneer businesses in addition to those set out in this Chapter."
Sec. 19. G.S. 85B-7 reads as rewritten:
"§ 85B-7.
Conduct of auction. auction; records.
(a) No person licensee
shall conduct an auction in this State without first having a written
agreement with the owner of any property to be sold. The agreement must contain
the terms and conditions upon which the auctioneer received the goods for sale.
The auctioneer licensee shall provide the owner with one a
signed copy of the agreement and shall keep at least one copy for his own
records for two years from the date of the agreement. A written agreement
shall not be required for a sale at auction if the sale is made at an auction
house or similar place where members of the public are generally offered the
opportunity to present goods for sale, there has been no prior negotiation
between the owner and the auctioneer, and the goods are not sold for more than
five hundred dollars ($500.00). Copies of all contracts shall be
made available to the Commission or its designated agent upon request.
(b) Each auctioneer licensee
shall maintain a record book accounting records and enter in it,
them, upon receipt of goods for auction and before their sale, the
name and address of the person who employed him the licensee to
sell the goods at auction and the name and address of the owner of the goods to
be sold. It shall not be necessary to enter in the record book any
record of sales made at an auction house or similar place where members of the
public are generally offered the opportunity to present goods for sale, there
has been no prior negotiation between the owner and the auctioneer, and the
goods are not sold for more than five hundred dollars ($500.00). The record
book accounting records shall be open for inspection by the
Commission or its designated agent at reasonable times.
(c) Each auctioneer All
licensees shall have his license their licenses available at
each auction he conducts. they conduct.
(d) Each licensee shall maintain records which identify the purchaser of all goods sold by name, address, and when possible, telephone number. The sales records shall contain an adequate description of the items sold and must be sufficient to positively identify the owner of the property. Sales records shall be maintained for a period of not less than two years from the date of sale. Sales records shall be open for inspection by the Commission or its designated agent at reasonable times."
Sec. 20. Chapter 85B of the General Statutes is amended by adding a new section to read:
"§ 85B-7.1. Handling clients' funds.
(a) Each licensee shall maintain a trust or escrow account and shall deposit in the account all funds received for the benefit of another person. The funds shall be deposited with an insured bank or savings and loan association located in North Carolina.
(b) Each licensee shall maintain, for not less than five years, complete records showing the deposit, maintenance, and withdrawal of trust or escrow funds. The Commission or its designated agent may inspect these records periodically, without prior notice and may also inspect these records whenever the Commission determines that they are pertinent to an investigation of any specific complaint against a licensee."
Sec. 21. Chapter 85B-8 reads as rewritten:
"§ 85B-8.
Prohibited acts; denial, suspension suspension, or
revocation of license.
(a) The following shall
be grounds for denial, suspension suspension, or
revocation of an auctioneer or apprentice auctioneer license: auctioneer,
auctioneer apprentice, or auction firm license:
(1) Any violation of this Chapter or any violation of a rule or regulation duly adopted by the Commission;
(2) A continued and
flagrant course of misrepresentation or making false promises, either by the auctioneer
licensee, an employee of the licensee, or by someone acting in
his on behalf of and with his the licensee's consent;
(3) Any failure to account
for or to pay over within a reasonable time, not to exceed 30 days, money funds
belonging to another which has have come into the auctioneer's
licensee's possession through an auction sale;
(4) Any false, misleading
misleading, or untruthful advertising;
(5) Any act of conduct in connection with a sales transaction which demonstrates bad faith or dishonesty;
(6) Knowingly using false
bidders, cappers or pullers, or knowingly making a material false
statement for license; or representation;
(7) Commingling the money
funds or property of a client with his the licensee's own
or failing to maintain and deposit in a trust or escrow account in an insured
bank or savings and loan association located in North Carolina money funds
received for another person through sale at auction. auction;
(8) Failure to make the
required contribution to the Auctioneer Recovery Fund. Fund;
(9) The commission or conviction of a crime that is punishable as a felony offense under the laws of North Carolina or the laws of the jurisdiction where committed or convicted, or the commission of any act involving fraud or moral turpitude;
(10) Failure to properly make any disclosures or to provide documents or information required by this Chapter or by the Commission;
(11) A demonstrated lack of financial responsibility.
(b) to (d) Repealed by Session Laws 1973, c. 1195, s. 5.
(e) The Commission may
upon its own motion or upon the complaint in writing of any person, provided
the complaint and any evidence presented with it establishes a prima facie
case, hold a hearing and investigate the actions of any auctioneer or
apprentice auctioneer auctioneer, apprentice auctioneer, or auction
firm, or any person who holds himself or herself out as an
auctioneer or apprentice auctioneer, and shall have the power to suspend or
revoke any license issued under the provisions of this Chapter. Chapter,
or to reprimand or censure any licensee. In all proceedings for the denial,
suspension suspension, or revocation of licenses, the
provisions of Chapter 150B of the General Statutes including provisions
relating to summary suspension shall be applicable. Any person who
desires to appeal the denial of an application for any license authorized to be
issued under this Chapter shall file a written appeal with the Commission not
later than 30 days following notice of denial.
(f) A person whose license has been denied, suspended, or revoked may not apply in that person's name or in any other manner within the period during which the order of denial, suspension, or revocation is in effect, and no firm, partnership, or corporation in which any person has a substantial interest or exercises management responsibility or control may be licensed during the period."
Sec. 22. G.S. 85B-9(b) reads as rewritten:
"(b) The Commission may in
its own name seek injunctive relief in the General Court of Justice to restrain
any violation or anticipated violation of the provisions of G.S. 85B-4(a). G.S.
85B-4(a) or any violation of this Chapter."
Sec. 23. G.S. 20-286(11) reads as rewritten:
"(11) Motor vehicle dealer or dealer. - A person who does any of the following:
a. For commission, money, or other thing of value, buys, sells, or exchanges, whether outright or on conditional sale, bailment lease, chattel mortgage, or otherwise, five or more motor vehicles within any 12 consecutive months, regardless of who owns the motor vehicles.
b. On behalf of another and for commission, money, or other thing of value, arranges, offers, attempts to solicit, or attempts to negotiate the sale, purchase, or exchange of an interest in five or more motor vehicles within any 12 consecutive months, regardless of who owns the motor vehicles.
c. Engages, wholly or in part, in the business of selling new motor vehicles or new or used motor vehicles, or used motor vehicles only, whether or not the motor vehicles are owned by that person, and sells five or more motor vehicles within any 12 consecutive months.
d. Offers to sell, displays, or permits the display for sale for any form of compensation five or more motor vehicles within any 12 consecutive months.
e. Primarily engages in the leasing or renting of motor vehicles to others and sells or offers to sell those vehicles at retail.
The term 'motor vehicle dealer' or 'dealer' does not include any of the following:
a. Receivers, trustees, administrators, executors, guardians, or other persons appointed by or acting under the judgment or order of any court.
b. Public officers while performing their official duties.
c. Persons disposing of motor vehicles acquired for their own use or the use of a family member, and actually so used, when the vehicles have been acquired and used in good faith and not for the purpose of avoiding the provisions of this Article.
d. Persons who sell motor vehicles as an incident to their principal business but who are not engaged primarily in the selling of motor vehicles. This category includes financial institutions who sell repossessed motor vehicles and insurance companies who sell motor vehicles to which they have taken title as an incident of payments made under policies of insurance, and auctioneers who sell motor vehicles for the owners or the heirs of the owners of those vehicles as part of an auction of other personal or real property or for the purpose of settling an estate or closing a business or who sell motor vehicles on behalf of a governmental entity, and who do not maintain a used car lot or building with one or more employed motor vehicle sales representatives.
e. Persons manufacturing, distributing or selling trailers and semitrailers weighing not more than 750 pounds and carrying not more than a 1,500 pound load.
f. A licensed real estate broker or salesman who sells a mobile home for the owner as an incident to the sale of land upon which the mobile home is located.
g. An employee of an organization arranging for the purchase or lease by the organization of vehicles for use in the organization's business.
h. Any publication, broadcast, or other communications media when engaged in the business of advertising, but not otherwise arranging for the sale of motor vehicles owned by others.
i. Any person dealing solely in the sale or lease of vehicles designed exclusively for off-road use.
j. Any real property owner who leases any interest in property for use by a dealer.
k. Any person acquiring any interest in a motor vehicle for a family member."
Sec. 24. This act becomes effective January 1, 1993.
In the General Assembly read three times and ratified this the 1st day of July, 1992.
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James C. Gardner
President of the Senate
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Daniel Blue, Jr.
Speaker of the House of Representatives