SB-0603, As Passed House, December 6, 2006

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE SUBSTITUTE FOR

 

SENATE BILL NO. 603

 

 

 

 

 

 

 

 

 

 

 

 

      A bill to amend 1980 PA 299, entitled

 

"Occupational code,"

 

by amending section 303a (MCL 339.303a), as amended by 1995 PA

 

183, and by adding article 29.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

 1        Sec. 303a. The terms provided for in this act shall commence

 

 2  on the following dates:

 

 

     Accountancy                                    July 1

     Architects                                     April 1

     Athletic board of control                      April 1

     Auctioneers                                    October 1

     Barbers                                        October 1


     Collection agencies                            July 1

     Community planners                             July 1

     Cosmetology                                    January 1

     Employment agencies                            October 1

     Foresters                                      April 1

     Hearing aid dealers                            October 1

     Land surveyors                                 April 1

     Landscape architects                           July 1

     Marriage counselors                            October 1

10      Mortuary science                               July 1

11      Nursing home administrators                    January 1

12      Professional engineers                         April 1

13      Real estate appraisers                         July 1

14      Real estate brokers and salespersons           July 1

15      Residential builders                           April 1

16      Social workers                                 October 1

 

 

17                            ARTICLE 29

 

18        Sec. 2901. As used in this article:

 

19        (a) "Apprentice" means an individual engaged in learning the

 

20  business of conducting an auction, under the control and

 

21  supervision of a registered auctioneer.

 

22        (b) "Auction" means the sale or offer for sale by bidding of

 

23  real or personal property at a public or private location.

 

24        (c) "Auctioneer" means an individual who, for compensation,

 

25  is engaged in the business of the conduct of or offers to engage

 

26  in the conduct of an auction.

 

27        (d) "Depository" means a state or nationally chartered bank

 

28  or state or federally chartered savings and loan association,

 


 1  savings bank, or credit union whose deposits are insured by an

 

 2  agency of the United States government under the laws of this

 

 3  state or the United States.

 

 4        Sec. 2903. There is created a board of auctioneers.

 

 5        Sec. 2905. (1) A person shall not use the title "registered

 

 6  auctioneer" unless registered under this article.

 

 7        (2) A corporation, partnership, limited liability company,

 

 8  association, or other legal entity may apply for registration

 

 9  under this article if not less than 1 of its officers, partners,

 

10  members, or managing agents is designated as a qualifying member.

 

11  The department shall issue a registration to the qualifying

 

12  member upon that individual's fulfillment of the requirements of

 

13  this article. The qualifying member is responsible for exercising

 

14  the supervision and control of the activities regulated by this

 

15  article to assure full compliance with this article and any rules

 

16  that may be promulgated under this article.

 

17        (3) The department shall suspend, revoke, or deny the

 

18  registration of a corporation, partnership, limited liability

 

19  company, association, or other legal entity when the registration

 

20  of the qualifying member is suspended, revoked, or denied.

 

21        (4) Except as otherwise provided in this subsection, if the

 

22  qualifying member of a registrant stops being its qualifying

 

23  member, such circumstance operates as an automatic suspension of

 

24  the entity's registration. Upon request, the department may

 

25  permit the registration to remain in force for 60 days in order

 

26  to allow the qualifying of a new qualifying member.

 

27        Sec. 2907. Except as otherwise provided in section 2917, the

 


 1  department shall issue a registration as a registered auctioneer

 

 2  to an individual or to the qualifying member of a legal entity

 

 3  who meets all of the following conditions:

 

 4        (a) Has either 2 years of apprentice experience with a

 

 5  registered auctioneer or proof of graduation from an accredited

 

 6  auction school acceptable to the board and 1 year of apprentice

 

 7  experience with a registered auctioneer. Under both

 

 8  circumstances, the individual shall have actively participated in

 

 9  the conduct of not less than 10 auctions. The experience shall be

 

10  verified by an affidavit of a registered auctioneer and shall

 

11  provide the names and addresses of the parties on whose behalf

 

12  the auction was held and the dates of the auction.

 

13        (b) Has completed an examination as described in section

 

14  2915.

 

15        (c) Is of good moral character.

 

16        Sec. 2909. (1) Notwithstanding section 2907, the department

 

17  shall register as an auctioneer, after verification of the

 

18  experience requirements imposed in this section, an individual

 

19  who applies not more than 2 years after the effective date of

 

20  this article and submits to the department an affidavit attesting

 

21  to experience in the conduct of auctions for not less than 3

 

22  years before the effective date of this article.

 

23        (2) The department shall issue a registration under this

 

24  section only if the applicant's experience includes conducting 12

 

25  or more auctions.

 

26        Sec. 2911. Money paid by any person to a registrant in

 

27  connection with an auction under this article is considered to be

 


 1  held in trust for the benefit of the person making the payment

 

 2  and the registrant is considered the trustee for the money.

 

 3        Sec. 2913. (1) A registered auctioneer shall maintain a

 

 4  regular place of business in this state. If more than 1 place of

 

 5  business is maintained, the department shall issue a duplicate

 

 6  registration at no additional cost. A regular place of business

 

 7  does not include a location used only as a warehouse. Records

 

 8  required to be kept under this article shall be kept at that

 

 9  regular place of business.

 

10        (2) A registered auctioneer shall not conduct an auction

 

11  unless a written contract is executed between the person desiring

 

12  auction services and the registered auctioneer. A registrant

 

13  shall keep a copy of the contract as part of his or her records

 

14  and, upon request, make them available to the department for

 

15  inspection or audit, or both, during normal business hours.

 

16        (3) A registrant under this article shall conspicuously post

 

17  at the regular place of business a copy of the registration

 

18  issued under this article.

 

19        (4) A registrant under this article shall establish a trust

 

20  account, or other segregated type of account, in the manner

 

21  described in this section. The registrant shall deposit into the

 

22  trust account all checks, drafts, negotiable instruments, and

 

23  cash tendered by 1 or more buyers for the payment of an item sold

 

24  by auction. The registrant shall make a disbursement relative to

 

25  a sale by auction through that trust account in the time period

 

26  and manner described in this section.

 

27        (5) A registrant shall not permit an advance payment of

 


 1  money by a customer to be deposited in the registrant's business

 

 2  or personal account or to be commingled in any way with funds

 

 3  belonging to the registrant, except as provided in this section.

 

 4  The registrant shall deposit customer money into a trust account

 

 5  until the transaction involved is consummated or terminated,

 

 6  within 2 banking days after the auction transaction but not later

 

 7  than 5 days after its receipt.

 

 8        (6) The trust account is subject to the following

 

 9  requirements:

 

10        (a) May be an interest bearing account maintained in a

 

11  depository recognized by the department. Interest accrued shall

 

12  be allocated as provided for in the contract between the parties.

 

13        (b) Shall designate the registrant as the trustee or

 

14  custodian.

 

15        (c) Shall provide for withdrawal of money without previous

 

16  notice and shall not be encumbered in any manner.

 

17        (d) Shall not contain any money of the registrant except for

 

18  an amount sufficient to pay service charges on the account or to

 

19  maintain the account when customer money is not on deposit, that

 

20  amount not to exceed $500.00.

 

21        (7) Disbursements from the trust account shall be made only

 

22  for the following purposes:

 

23        (a) Payment as a result of the sale of an item by the

 

24  registrant pursuant to the contract.

 

25        (b) Refund of an amount to the customer upon termination of

 

26  the transaction.

 

27        (c) Payment to the registrant of a commission and documented

 


 1  and approved expenses following the consummation of a transaction

 

 2  upon which a commission is payable to the registrant.

 

 3        (8) The registrant shall keep records of money deposited in

 

 4  the trust account. The records shall show all of the following:

 

 5        (a) The date of the receipt of money from a customer, the

 

 6  amount received, and the name of the customer on whose behalf the

 

 7  money was paid.

 

 8        (b) The purpose for which the money was paid.

 

 9        (c) The date the money was deposited in the trust account.

 

10        (d) The date of disbursement of the money, the purpose of

 

11  the withdrawal, and the name of the person to whom the money was

 

12  paid upon disbursement.

 

13        (e) Any other pertinent information regarding the

 

14  transaction.

 

15        (9) The department and the board may, upon notice given to a

 

16  registrant, inspect or audit, or both, the records or other

 

17  relevant documents required to be kept pursuant to this section.

 

18        (10) A registrant shall create, electronically or otherwise,

 

19  a cash receipts and disbursements journal and ledgers. The

 

20  ledgers are to be maintained separately for each transaction and

 

21  shall contain the following:

 

22        (a) Names of both parties.

 

23        (b) Postings of all transactions.

 

24        (c) Date of each transaction, in chronological sequence.

 

25        (d) Amount received or disbursed, or both; name of party

 

26  giving money; name of principal or payee; and purpose of

 

27  disbursements.

 


 1        (e) Check numbers of disbursements.

 

 2        (f) A running balance after each receipt and disbursement.

 

 3        (g) Description of property being sold.

 

 4        (11) A registrant shall create, electronically or otherwise,

 

 5  and maintain a personal money ledger to account for personal

 

 6  money maintained in the trust account. The personal money ledger

 

 7  shall include the following:

 

 8        (a) Chronological sequence of funds received and disbursed.

 

 9        (b) Running balance after each receipt and disbursement.

 

10        (c) Receipt postings to include date of receipt, date of

 

11  deposit, name of party giving money, name of principal, and

 

12  amount received.

 

13        (d) Disbursement postings to include the date; check number,

 

14  if applicable; payee; amount; purpose; and a running balance

 

15  after each receipt and disbursement.

 

16        (12) The ledgers and journals, as well as trust account bank

 

17  statements, deposit tickets, and copies of deposit receipts,

 

18  canceled checks, and voided checks shall be maintained for not

 

19  less than 3 years from the date of inception of the records or

 

20  not less than 3 years from the consummation or termination of the

 

21  transaction, whichever is later.

 

22        (13) A registrant under this article shall maintain written

 

23  records of each auction sale for a period of not less than 3

 

24  years from the date of the auction sale or not less than 3 years

 

25  from consummation or termination of the transaction, whichever is

 

26  later. The records shall include, but not be limited to, all of

 

27  the following:

 


 1        (a) Consignment receipts.

 

 2        (b) Bidder registrations.

 

 3        (c) Documents relating to final settlements with consignors.

 

 4        Sec. 2915. (1) The department and the board shall develop an

 

 5  examination for applicants for registration under this article in

 

 6  the manner provided for in section 316. In developing the

 

 7  examination, the department and the board shall consult with and

 

 8  accept advice from prominent industry and trade groups. The

 

 9  department may adopt all or part of any existing examinations

 

10  developed by industry and trade groups.

 

11        (2) The examination developed under subsection (1) shall

 

12  include, but not be limited to, the following subject matter

 

13  areas:

 

14        (a) The provisions of this article.

 

15        (b) Ethics and ethical practices as they relate to the

 

16  business of conducting auctions.

 

17        (c) Record keeping.

 

18        (d) Elementary mathematics.

 

19        (e) Elementary principles of real estate and personal

 

20  property economics.

 

21        (f) Elementary principles of the law regarding bulk sales,

 

22  deeds, mortgages, contracts of sale, agency, leases, auctions,

 

23  and brokerage.

 

24        (3) The department shall administer the examinations on at

 

25  least a quarterly basis. The department may administer the

 

26  examinations more often than on a quarterly basis if the board

 

27  determines that circumstances exist that warrant the further

 


 1  administration of the examination.

 

 2        Sec. 2917. (1) The department shall issue a registration

 

 3  without examination to a nonresident individual who, at the time

 

 4  of application, is licensed, registered, certified, or otherwise

 

 5  regulated by another state if the requirements of that state, as

 

 6  determined by the board, are substantially the equivalent of the

 

 7  requirements of this article and if the other state offers

 

 8  licensure, certification, or registration on a reciprocal basis

 

 9  similar to this section to registrants under this article.

 

10        (2) A nonresident applicant shall file with the department

 

11  an irrevocable consent to service of process, signed by the

 

12  registrant. A process or pleading served upon the department

 

13  shall be sufficient service upon the registrant. A process or

 

14  pleading served upon the department under this section shall be

 

15  in duplicate. The department shall immediately serve by first-

 

16  class mail a copy of the process or pleading to the registrant's

 

17  last known address as determined by the records of the

 

18  department.

 

19        Sec. 2919. A registrant who commits any of the following

 

20  acts is subject to the sanctions and penalties contained in

 

21  article 6:

 

22        (a) Fails to enter into a written contract with a seller or

 

23  consignor before placing or authorizing any advertising for an

 

24  auction.

 

25        (b) Fails to reduce to writing or fails to issue any

 

26  appropriate documentation relative to an auction-related

 

27  transaction.

 


 1        (c) Fails to appropriately use or issue payment from a trust

 

 2  account.

 

 3        (d) Is involved in capping, shilling, or steering relative

 

 4  to an auction.

 

 5        (e) Fails to disclose his or her registration number on all

 

 6  advertising.

 

 7        (f) Knowingly misrepresents the nature or value of an item

 

 8  being auctioned.

 

 9        (g) Fails to account for all money deposited into a trust

 

10  account.

 

11        (h) Fails to account for or remit money coming into the

 

12  registrant's possession, which money belongs to others.

 

13        (i) Fails to deposit money belonging to others, in

 

14  compliance with section 2913.

 

15        (j) Fails to establish and maintain records as required by

 

16  this article.

 

17        (k) Violates the requirements of this article or a rule

 

18  promulgated under this article.

 

19        Enacting section 1. This amendatory act does not take effect

 

20  unless Senate Bill No. 604 of the 93rd Legislature is enacted

 

21  into law.

 

22        Enacting section 2. This amendatory act takes effect October

 

23  1, 2007.