H*3377 Session 109 (1991-1992)
H*3377(Rat #0081, Act #0038 of 1991) General Bill, By J.V. Gregory, Boan,
J. Brown, Kirsh, E.L. Nettles, P.E. Short and Wilkins
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Sections
40-6-200, 40-6-210, 40-6-220, and 40-6-230 so as to provide for an Auctioneer
Recovery Fund; to amend Section 40-6-40, relating to the Auctioneers'
Commission, so as to change the reference to experienced auctioneer members to
licensed auctioneer members, require at least one member not to be connected
with the auction business, and delete obsolete provisions; to amend Section
40-6-60, as amended, relating to general requirements for licenses, so as to
delete the residency requirement; to amend Section 40-6-70, relating to
apprentice auctioneer licenses, so as to delete the requirement for statements
on character; to amend Section 40-6-80, as amended, relating to application
and examination for licenses, so as to change the required time to serve as an
apprentice from two years to one year and delete the requirement for
statements on character; to amend Section 40-6-130, relating to auctioneers
licensed in another state, so as to revise the circumstances under which
nonresident auctioneers may be granted a South Carolina license; to amend
Section 40-6-140, as amended, relating to license fees, so as to delete the
references to specific fees and provide for the Commission to establish them
by regulation; to repeal Section 40-6-100 relating to bonds of licensees; and
to reauthorize the existence of the Auctioneers' Commission for six years.
01/31/91 House Introduced and read first time HJ-449
01/31/91 House Referred to Committee on Labor, Commerce and
Industry HJ-449
03/06/91 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-7
03/19/91 House Debate adjourned until Wednesday, March 20, 1991 HJ-38
03/20/91 House Amended HJ-17
03/20/91 House Read second time HJ-17
03/21/91 House Read third time and sent to Senate HJ-7
03/21/91 Senate Introduced and read first time SJ-17
03/21/91 Senate Referred to Committee on General SJ-18
04/02/91 Senate Recalled from Committee on General SJ-18
04/02/91 Senate Read second time SJ-18
04/02/91 Senate Ordered to third reading with notice of
amendments SJ-18
04/10/91 Senate Read third time and enrolled SJ-112
04/18/91 Ratified R 81
04/24/91 Signed By Governor
04/24/91 Effective date 04/24/91
04/24/91 Act No. 38
05/03/91 Copies available
(A38, R81, H3377)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING SECTIONS 40-6-200,
40-6-210, 40-6-220, AND 40-6-230 SO AS TO PROVIDE FOR
AN AUCTIONEER RECOVERY FUND; TO AMEND
SECTION 40-6-40, RELATING TO THE AUCTIONEERS'
COMMISSION, SO AS TO CHANGE THE REFERENCE TO
EXPERIENCED AUCTIONEER MEMBERS TO LICENSED
AUCTIONEER MEMBERS, REQUIRE AT LEAST ONE
MEMBER NOT TO BE CONNECTED WITH THE AUCTION
BUSINESS, AND DELETE OBSOLETE PROVISIONS; TO
AMEND SECTION 40-6-60, AS AMENDED, RELATING TO
GENERAL REQUIREMENTS FOR LICENSES, SO AS TO
DELETE THE RESIDENCY REQUIREMENT; TO AMEND
SECTION 40-6-70, RELATING TO APPRENTICE
AUCTIONEER LICENSES, SO AS TO DELETE THE
REQUIREMENT FOR STATEMENTS ON CHARACTER;
TO AMEND SECTION 40-6-80, AS AMENDED,
RELATING TO APPLICATION AND EXAMINATION FOR
LICENSES, SO AS TO CHANGE THE REQUIRED TIME TO
SERVE AS AN APPRENTICE FROM TWO YEARS TO ONE
YEAR AND DELETE THE REQUIREMENT FOR
STATEMENTS ON CHARACTER; TO AMEND SECTION
40-6-130, RELATING TO AUCTIONEERS LICENSED IN
ANOTHER STATE, SO AS TO REVISE THE
CIRCUMSTANCES UNDER WHICH NONRESIDENT
AUCTIONEERS MAY BE GRANTED A SOUTH CAROLINA
LICENSE; TO AMEND SECTION 40-6-140, AS AMENDED,
RELATING TO LICENSE FEES, SO AS TO DELETE THE
REFERENCES TO SPECIFIC FEES AND PROVIDE FOR THE
COMMISSION TO ESTABLISH THEM BY REGULATION;
TO REPEAL SECTION 40-6-100 RELATING TO BONDS OF
LICENSEES; AND TO REAUTHORIZE THE EXISTENCE OF
THE AUCTIONEERS' COMMISSION FOR SIX YEARS.
Be it enacted by the General Assembly of the State of South
Carolina:
Auctioneer Recovery Fund
SECTION 1. The 1976 Code is amended by adding:
"Section 40-6-200. (A) The `Auctioneer Recovery
Fund' is created to be maintained by the commission for the
payment of claims to persons injured by licensees under this
chapter. Monies in the fund must be held and carried forward by
the State Treasury separate from the general fund. At least one
hundred thousand dollars for recovery and guaranty purposes
must be maintained in the fund. Fund monies may be invested
and reinvested by the State Treasurer in interest bearing accounts,
interest accruing to the fund. Sufficient liquidity must be
maintained so that there are monies available to satisfy claims
processed through the commission. Expenditures from the fund
must be made in accordance with this chapter without legislative
appropriation. Warrants for expenditures must be drawn by the
Comptroller General pursuant to claims approved and signed by
the chairman of the commission.
(B) To initially establish the fund and when monies, including
principal and interest, are less than forty-five thousand dollars at
the end of the fiscal year after payment of claims and expenses,
each licensee shall pay, in addition to the license fees required
under this chapter, an annual fee determined by the commission.
However, the fee may not exceed fifty dollars.
(C) If monies, including principal and interest, in the fund
exceed one hundred twenty-five thousand dollars at the end of the
fiscal year after payment of claims and expenses, the amount in
excess must be deposited in the state general fund.
Section 40-6-210. (A) A person aggrieved by the conduct of a
licensee may apply for monies from the fund if the following
conditions have been met:
(1) The facts giving rise to the claim are based on a
specific violation of this chapter or related regulations.
(2) The applicant has made demand upon the licensee by
certified mail, return receipt requested, for his actual damages,
and demand has been refused or ignored.
(3) The applicant is not:
(a) licensed under this chapter; or
(b) a party jointly responsible for the claim.
(4) Application for recovery has been made not later than
one year from the date of discovery of the loss.
(B) Application for monies must be made under oath and upon
a form the commission prescribes. It must contain the following
minimum information:
(1) name and address of the applicant;
(2) name and address of the licensee and his last known
working address;
(3) amount of monies sought and evidence supporting the
claim;
(4) copies of complaints and other legal process
initiated;
(5) disclosure of partial satisfaction received, offered, or
otherwise available from the licensee, a bond, a policy of
insurance or other source;
(6) detailed statement of the events precipitating the loss
and documents and other evidence supporting the claim.
(C) Upon receiving a claim in proper form, the commission
shall forward the claim by certified mail, return receipt requested,
to the last known address of the licensee. The licensee within
thirty days shall file a verified answer to the claim. If no answer
is filed within thirty days, the licensee is in default, and the
commission shall schedule a hearing on the claim. If the licensee
files a timely answer, the commission shall investigate the claim
for not more than sixty days and promptly schedule a hearing on
the claim. The licensee, commission, and claimant may present
evidence and question and cross-examine witnesses as parties to
the hearing.
(D) Failure of the applicant to comply with this section is a
waiver of rights under it.
Section 40-6-220. (A) Applications for payment from the
fund must be heard and decided by a majority of the members of
the commission. After a hearing, if the commission finds that the
claim must be paid from the fund, the commission or the courts, if
appealed, shall enter an order requiring payment in accordance
with the limitations in this chapter. Subject to commission
approval, a claim based upon an application for monies may be
compromised. However, the commission is not bound by the
compromise or stipulation of the licensee.
(B) Upon payment of a claim, the license of the person against
whom the claim was applied is revoked. The licensee must not be
issued another license until he repays the monies from his claim to
the fund, including interest at the rate of eight percent a year.
Nothing in this section prevents the commission or other authority
from pursuing other remedies at law or equity.
(C) An applicant receiving monies from the fund shall
subrogate rights relative to the claim to the commission to the
extent of monies paid, including interest, and shall cooperate with
the commission in the prosecution of the subrogated claim.
Amounts recovered against the licensee or other responsible
parties must be deposited into the fund, less costs and expenses of
collection.
Section 40-6-230. Payments from the fund are limited as
follows:
(1) Only the applicant's actual damages may be paid from the
fund. No applicant may recover punitive, special, or
consequential damages or attorney's fees.
(2) The fund is not liable for more than ten thousand dollars
for each transaction, regardless of the number of persons
aggrieved.
(3) The liability of the fund may not exceed in the aggregate
twenty thousand dollars for one licensee in one calendar year.
(4) If the maximum liability of the fund is insufficient to pay
in full the valid claims of aggrieved persons whose claims relate
to the same transaction or to the same licensee, the amount for
which the fund is liable must be distributed among the claimants
in a ratio that their respective claims bear to the total claims or in
a manner the commission considers equitable. The commission in
its sole discretion may join in one action claims having a common
factual basis so that an equitable distribution from the fund may
be achieved.
(5) A party aggrieved and awarded payment by a final
commission decision has a vested right for payment. Claims
against the fund must be made in the same order as the awards
were authorized. If claims against the fund exceed the monies in
it, the commission shall satisfy unpaid claims as soon as sufficient
monies are deposited. An award is not a claim against the State if
it cannot be paid due to a lack of monies in the fund."
Commission; experienced members changed to licensed; no
connection with the auction business required
SECTION 2. Section 40-6-40 of the 1976 Code is amended to
read:
"Section 40-6-40. At least three members of the
commission must be licensed auctioneers and must be active in
the auction profession. At least one member must not be
connected with the auction business. Action taken by the
commission may be taken by a vote of three members. A
quorum consists of three members. The members shall elect from
among themselves a chairman who serves for one year and until
his successor is elected and qualifies. No member may serve
more than two successive terms as chairman. The members of the
commission shall receive the same per diem, mileage, and
subsistence provided by law for members of state boards,
committees, and commissions. The commission shall employ an
executive director who must have a minimum of five years
experience as an auctioneer, an investigator or investigators, and
other employees necessary to carry out the duties prescribed by
this chapter. Employees serve at the pleasure of the commission.
The commission shall issue, suspend, and revoke licenses for
auctioneers and apprentice auctioneers provided in this chapter
and may promulgate regulations necessary to carry out its
provisions."
Residency requirement deleted
SECTION 3. Section 40-6-60 of the 1976 Code, as last amended
by Act 32 of 1987, is further amended to read:
"Section 40-6-60. No person may be licensed under
this chapter unless he is at least eighteen years of age. No person
may be licensed if, within the preceding five years, he has pleaded
guilty to or been convicted of a felony or has had an auctioneer or
apprentice auctioneer license revoked.
The credit record of an applicant for a license may be
considered by the commission in determining whether or not to
issue or renew a license. A fee of ten dollars must be paid to the
commission for the applicant's credit investigation."
Statement on character requirement deleted
SECTION 4. Section 40-6-70 of the 1976 Code is amended to
read:
"Section 40-6-70. Each applicant for an apprentice
auctioneer license shall submit a written application on a form
approved by the commission. To receive a license, the applicant
shall take an examination approved by the commission and
perform on it to the satisfaction of the commission. The
examination must test the applicant's understanding of the law
relating to auctioneers and auctions, ethical practices for
auctioneers, and the mathematics applicable to the auctioneer
business. The examination must be given at least twice a year in
Columbia and at other times and places the commission
designates. However, no person may take the examination within
six months after having failed it a second time. Each apprentice
auctioneer application and license must 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 regularly shall review the records his
apprentice is required to maintain and see that they are accurate
and current."
Required time to serve as an apprentice changed; character
requirement deleted
SECTION 5. Section 40-6-80 of the 1976 Code, as last amended
by Act 34 of 1987, is further amended to read:
"Section 40-6-80. No person may be licensed as an
auctioneer unless he has held an apprentice auctioneer license,
served as an apprentice auctioneer for the preceding year, and
has taken an examination approved by the commission and
performed on it to the satisfaction of the commission. The
examination must 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 other matters relating to auctions the commission
considers appropriate. The examination must be given at least
twice a year in Columbia and at other times and places the
commission designates. However, no person may take the
examination within six months after having failed it a second
time.
A person who successfully has completed the equivalent of at
least eighty 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 one year. He shall take the
examination required by this section and perform on it to the
satisfaction of the commission.
An applicant for an auctioneer license shall submit a written
application on a form approved by the commission. If the
applicant has been licensed previously as an apprentice
auctioneer, the application must contain an evaluation by the
applicant's supervisor of his performance as an apprentice
auctioneer. If the applicant is exempted from apprenticeship
because he has completed the equivalent of at least eighty hours
of classroom instruction in auctioneering, the application must
contain a transcript of his course work in auctioneering. The
commission may require verification of information included in
an application for an auctioneer license."
Requirements for nonresident auctioneers revised
SECTION 6. Section 40-6-130 of the 1976 Code is amended to
read:
"Section 40-6-130. A person who holds a valid
auctioneer license in another state may apply for and be granted a
South Carolina license if the requirements of that state, as
determined by the commission, are at least substantially
equivalent to the requirements of this chapter. An applicant under
this section is not required to take the examination required
under Section 40-6-80 but shall pay the appropriate fee in Section
40-6-140 and shall file with the commission an irrevocable
consent that service on the commission is sufficient service or
process for actions against the applicant by a resident of this State
arising out of his auctioneering activities.
An applicant under this section shall pay the fee required
under Section 40-6-200 whether or not he currently is bonded as
an auctioneer or apprentice auctioneer in his home state. A
license issued under this section must be marked to indicate that
its holder is a nonresident."
License fees to be established by regulation
SECTION 7. Section 40-6-140 of the 1976 Code, as last
amended by Section 54B, Part II, Act 189 of 1989, is further
amended to read:
"Section 40-6-140. A person licensed as an auctioneer
shall pay an annual license fee to the commission. Funds derived
under this chapter must be paid to the State Treasurer who shall
keep them in the manner provided for other agencies and boards
of the State. The commission may establish license and
examination fees by regulation."
Repeal
SECTION 8. Section 40-6-100 of the 1976 Code is repealed.
Application to claims occurring after June 30, 1991
SECTION 9. Section 40-6-210 of the 1976 Code, added by this
act, applies to claims occurring after June 30, 1991.
Auctioneers' Commission reauthorized
SECTION 10. In accordance with Section 1-20-60 of the 1976
Code, the existence of the South Carolina Auctioneers'
Commission is reauthorized for six years.
Time effective
SECTION 11. This act takes effect upon approval by the
Governor.
Approved the 24th day of April, 1991. |