S 757 Session 110 (1993-1994)
S 0757 General Bill, By Martin
Similar(H 4050)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
40-6-85 so as to provide licensing requirements for an auction firm; by adding
Section 40-6-155 so as to provide trust and escrow account requirements for
auctioneers; by adding Section 40-6-175 so as to authorize the South Carolina
Auctioneers' Commission to assess fines for violations; by amending Section
40-6-10, as amended, relating to definitions, so as to revise and add certain
definitions; by amending Section 40-6-20, as amended, relating to to auctions
which are not subject to the authority of the South Carolina Auctioneers'
Commission, so as to exempt auctions for motor vehicles and to provide
exceptions to the exemptions; by amending Section 40-6-50 and Section 40-6-60,
as amended, relating to requirements to be licensed, so as to include
apprentice auctioneers and auction firms and to require paying certain fees
and providing criminal history and credit records; by amending Sections
40-6-70 and 40-6-80, both as amended, relating to apprentice auctioneer and
auctioneer license requirements, so as to require that the licensing
examination must be written; by amending Section 40-6-90, relating to renewal
of licenses, so as to provide for date of issuance and continuing education
requirements; by amending Section 40-6-130, as amended, relating to reciprocal
licensing, so as to provide that a reciprocal license may be issued if the
applicant's resident state provides reciprocity to South Carolina residents;
by amending Section 40-6-150, relating to written agreements to conduct
auctions and records of sales, so as to require that these agreements and
records must be made available to the Commission on request; by amending
Section 40-6-160, as amended, relating to grounds for denial, suspension, and
revoca
05/05/93 Senate Introduced and read first time SJ-4
05/05/93 Senate Referred to Committee on General SJ-4
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 40-6-85 SO AS TO PROVIDE LICENSING
REQUIREMENTS FOR AN AUCTION FIRM; BY ADDING
SECTION 40-6-155 SO AS TO PROVIDE TRUST AND ESCROW
ACCOUNT REQUIREMENTS FOR AUCTIONEERS; BY ADDING
SECTION 40-6-175 SO AS TO AUTHORIZE THE SOUTH
CAROLINA AUCTIONEERS' COMMISSION TO ASSESS FINES
FOR VIOLATIONS; BY AMENDING SECTION 40-6-10, AS
AMENDED, RELATING TO DEFINITIONS, SO AS TO REVISE
AND ADD CERTAIN DEFINITIONS; BY AMENDING SECTION
40-6-20, AS AMENDED, RELATING TO AUCTIONS WHICH ARE
NOT SUBJECT TO THE AUTHORITY OF THE SOUTH CAROLINA
AUCTIONEERS' COMMISSION, SO AS TO EXEMPT AUCTIONS
FOR MOTOR VEHICLES AND TO PROVIDE EXCEPTIONS TO
THE EXEMPTIONS; BY AMENDING SECTION 40-6-50 AND
SECTION 40-6-60, AS AMENDED, RELATING TO
REQUIREMENTS TO BE LICENSED, SO AS TO INCLUDE
APPRENTICE AUCTIONEERS AND AUCTION FIRMS AND TO
REQUIRE PAYING CERTAIN FEES AND PROVIDING CRIMINAL
HISTORY AND CREDIT RECORDS; BY AMENDING SECTIONS
40-6-70 AND 40-6-80, BOTH AS AMENDED, RELATING TO
APPRENTICE AUCTIONEER AND AUCTIONEER LICENSE
REQUIREMENTS, SO AS TO REQUIRE THAT THE LICENSING
EXAMINATION MUST BE WRITTEN; BY AMENDING SECTION
40-6-90, RELATING TO RENEWAL OF LICENSES, SO AS TO
PROVIDE FOR DATE OF ISSUANCE AND CONTINUING
EDUCATION REQUIREMENTS; BY AMENDING SECTION
40-6-130, AS AMENDED, RELATING TO RECIPROCAL
LICENSING, SO AS TO PROVIDE THAT A RECIPROCAL
LICENSE MAY BE ISSUED IF THE APPLICANT'S RESIDENT
STATE PROVIDES RECIPROCITY TO SOUTH CAROLINA
RESIDENTS; BY AMENDING SECTION 40-6-150, RELATING TO
WRITTEN AGREEMENTS TO CONDUCT AUCTIONS AND
RECORDS OF SALES, SO AS TO REQUIRE THAT THESE
AGREEMENTS AND RECORDS MUST BE MADE AVAILABLE TO
THE COMMISSION ON REQUEST; BY AMENDING SECTION
40-6-160, AS AMENDED, RELATING TO GROUNDS FOR DENIAL,
SUSPENSION, AND REVOCATION OF LICENSES, SO AS TO
PROVIDE PROCEDURES FOR INVESTIGATIONS, TO ADD
VIOLATIONS FOR MAKING FALSE STATEMENTS ON
APPLICATIONS AND IN INVESTIGATIONS, FOR COMMINGLING
FUNDS, FOR FAILING TO PAY FINES, FOR FAILING TO
DISCLOSE REQUIRED INFORMATION, AND FOR LACK OF
FINANCIAL RESPONSIBILITY, TO AUTHORIZE THE
COMMISSION ALSO TO ISSUE ORDERS FOR COMPLIANCE
AND TO PLACE A LICENSEE ON PROBATION; BY AMENDING
SECTION 40-6-180, AS AMENDED, RELATING TO NOTICE AND
HEARING REQUIREMENTS, SO AS TO REVISE THESE
REQUIREMENTS; BY AMENDING SECTION 40-6-200, RELATING
TO THE AUCTIONEER RECOVERY FUND, SO AS TO PROVIDE
THAT NEW LICENSEES MUST CONTRIBUTE TO THE FUND
AND TO PROVIDE HOW EXCESS FUNDS MAY BE EXPENDED;
BY AMENDING SECTION 40-6-220, RELATING TO CLAIMS
UNDER THE FUND, SO AS TO PROVIDE THAT A PERSON'S
LICENSE MAY BE SUSPENDED OR REVOKED AFTER
PAYMENT OF A CLAIM FILED AGAINST THE PERSON; AND BY
PROVIDING THAT CONTINUING EDUCATION REQUIREMENTS
TAKE EFFECT JUNE 30, 1995.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 40-6-85. (A) An auction firm must be licensed as an
auction business even though no owner or officer of that business acts
as an auctioneer. To be licensed an auction firm must pay a fee to the
Auctioneer Recovery Fund as required by Section 40-6-200 and must
pay other fees as determined by the commission.
(B) An auction firm license issued by the commission is restricted to
the persons named in the license and does not enure to the benefit of any
other person. If 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.
(C) Before an auction firm license is issued, the person designated
as the applicant shall 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 considers 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 if they employ
or associate themselves with a licensed auctioneer to handle those
aspects of the transactions peculiar to the auctioneer profession. A
person or entity licensed as an auction firm in good standing on this act's
effective date is not required to take an examination in order to maintain
or to renew an auction firm license, if the license does not expire or
lapse and is not suspended or revoked by the commission."
SECTION 2. The 1976 Code is amended by adding:
"Section 40-6-155. (A) A licensee who handles the proceeds
of an auction shall maintain a trust or escrow account with an insured
bank or savings and loan association and shall deposit in this account
within three business days all funds received for the benefit of another
person, unless otherwise required by law or the owner or consignor of
the property auctioned is paid immediately after the sale.
(B) Upon issuance or renewal of a license, the licensee must provide
the commission with the name of the bank and the account number of
the trust or escrow account in which the funds of others are maintained
and authorization permitting the examination of the account by the
commission or its authorized representative. A licensee must notify the
commission by certified mail, return receipt requested, of a change of
bank, account number, or location of the trust or escrow account and, at
that time, shall complete the required authorization permitting
examination of the account by the commission or its authorized
representative.
(C) A licensed auctioneer or licensed apprentice auctioneer in this
State who works directly for a licensed auction firm or who works
directly for another licensed auctioneer who maintains an active escrow
account may use that escrow account and number in all applications for
licensure or renewal, if the escrow account is used solely for the purpose
of holding funds of others in relation to auctions.
(D) A licensee shall maintain complete records for at least three
years 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."
SECTION 3. The 1976 Code is amended by adding:
"Section 40-6-175. After a hearing as provided for in Section
40-6-160 and upon a finding by the commission that a person has
violated this chapter or a regulation promulgated pursuant to this
chapter, the commission may order the person to pay a civil fine of not
less than one hundred dollars and not more than five thousand dollars to
be assessed and collected by the commission. These fines are in
addition to any other sanction imposed by the commission and must be
deposited in the state general fund."
SECTION 4. Section 40-6-10 of the 1976 Code, as last amended by
Act 599 of 1988, is further amended to read:
"Section 40-6-10. 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, offer by members of the audience, and
the acceptance by the auctioneer of the highest or most favorable offer.
(2) `Auctioneer' means any a 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) `Absolute auction' means an auction which requires no
opening bid the sale of real or personal property at auction
whereby every item offered from the block is sold to the highest bidder
without reserve and without the requirement of a minimum bid or
other conditions which limit the sale other than to the highest bidder.
(4) `Estate sale' means the sale at auction of property of a specified
deceased person or the property of a specified living person's estate but
does not mean the sale at auction of property of any other person.
(5) `Auction firm' means a sole proprietorship of which the owner
is not a licensed auctioneer or a 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 the owner or officer of that
business acts as an auctioneer.
(6) `Fund' means the Auctioneer Recovery Fund.
(7) `Owner' means the bona fide owner of the property being
offered for sale; in the case of a partnership, `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 Section 33-42-210; in the case of
a corporation, `owner' means an owner or director of a corporation that
owns the property being offered for sale provided that the corporation
is registered to do business in the State."
SECTION 5. Section 40-6-20 of the 1976 Code, as last amended by
Act 199 of 1987, is further amended to read:
"Section 40-6-20. (A) This chapter applies to all
auctions held in this State except the following sales:
(1) at auction auctions conducted by the owner
of all or any part of the goods being offered, or his
attorney, 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 purpose of resale;
(2) at auction auctions conducted by or under the
direction of any a public authority;
(3) at auction auctions pursuant to a judicial
order or in the settlement of a decedent's estate;
(4) sales required by law to be at auction;
(5) auctions conducted by and on behalf of
any a charitable, civic, or religious
organization if the person conducting the sale receives no compensation
for conducting it;
(6) auctions of motor vehicles among motor vehicle dealers if
conducted by an auctioneer licensed under this chapter;
(6) (7) conducted auctions by a
trustee pursuant to a valid power of sale;
(7) (8) auctions sponsored by purebred
livestock (beef cattle, swine, horses, and sheep) associations and
purebred livestock breeder farm sales to the entent
extent that purebred livestock auctioneers, upon proof to the
commission that they are qualified purebred livestock auctioneers, are
exempt from the examination and bonding requirement the
Auctioneer Recovery Fund requirements provided for in
this chapter for the purpose of conducting purebred livestock auctions,
but not from the licensing and license fee provisions of this chapter;
(8) (9) auctions sponsored by tobacco
auctioneers to the extent that tobacco auctioneers, upon proof to the
commission that they are qualified tobacco auctioneers, are exempt from
the examination and bonding requirement the fund
requirements provided for in this chapter for the purpose
of conducting tobacco auctions, but not from the licensing and
license fee provisions of this chapter.
(B) The exceptions provided for in items (2), (4), and (5)
of subsection (A) do not apply to:
(1) a person or entity engaged in the business of organizing,
arranging, or conducting an auction sales for compensation pursuant to
item (2), (4), or (5) of subsection (A); or
(2) a person or entity conducting a sale pursuant to item (2), (4),
or (5) of subsection (A) who is licensed under this chapter or licensed in
any other state.
(C) If an auction is conducted that is exempt from this chapter, no
claim may be made against or paid from the fund."
SECTION 6. Section 40-6-50 of the 1976 Code is amended to read:
"Section 40-6-50. No Unless the auction is exempt
under Section 40-6-20, no person shall sell or offer his
service to sell goods or real estate at auction in this State or
perform an act for which an auctioneer or apprentice auctioneer license
is required unless he the person holds a currently
valid auctioneer or apprentice auctioneer license issued
under this chapter. No individual, partnership, corporation, or any
other legal or commercial entity shall sell or offer its service to
sell goods or real estate at auction unless the entity holds a currently
valid auction firm license issued under this chapter, but no such
entity is required to hold an auction firm license to sell livestock,
or tobacco, or motor vehicles at auction so long as those
sales are regulated by another state agency. Provided, however
However, if the commercial entity consists of, or is
entirely owned by, only one individual auctioneer who holds a
currently valid individual auctioneer license, then that
commercial entity will is not be required to hold
an auction firm license."
SECTION 7. Section 40-6-60 of the 1976 Code, as last amended by
Act 38 of 1991, is further amended to read:
"Section 40-6-60. (A) No person may be licensed
under this chapter unless he as an apprentice auctioneer,
auctioneer or receive an auction firm license if the person:
(1) is at least under eighteen years of
age.; No person may be licensed if, within the
preceding five years, he
(2) has pleaded guilty to or been convicted of a
felony or any other crime involving fraud or moral turpitude within
the preceding five years; for purposes of this item, a person has been
convicted if the person has pled guilty, pled nolo contendre, or been
found guilty after a trial; or
(3) has had an auctioneer, or apprentice
auctioneer, or auction firm license revoked within the
preceding five years.
(B) No person may be issued an auctioneer, apprentice
auctioneer, or auction firm license unless the person has paid a fee to the
Auctioneer Recovery Fund as required by Section 40-6-200, and the
person has provided a criminal history conviction record from the South
Carolina Law Enforcement Division and if the person is a resident of
another state, from an equivalent agency in that state.
(C) No license revoked under this chapter may be reinstated except
upon an affirmative vote of a majority of the members of the
commission.
(D) The credit record and auctioneering license
disciplinary history 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."
SECTION 8. Section 40-6-70 of the 1976 Code, as last amended by
Act 38 of 1991, is further amended to read:
"Section 40-6-70. Each An 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 a written 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 An 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 the apprentice auctioneer's
supervisor. The supervisor regularly shall review the records his
the apprentice is required to maintain and see that they are
accurate and current."
SECTION 9. The first paragraph of Section 40-6-80 of the 1976 Code,
as last amended by Act 38 of 1991, is further amended to read:
"No person may be licensed as an auctioneer unless he
the person has held an apprentice auctioneer license, served as
an apprentice auctioneer for the preceding year, and has taken
an a written 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."
SECTION 10. Section 40-6-90 of the 1976 Code is amended to read:
"Section 40-6-90. (A) The initial apprentice
auctioneer and auctioneer licenses shall be valid for one year and
A license issued under this chapter is valid from July first of the year
issued or from the date issued, whichever is later, through the following
June thirtieth unless revoked or suspended pursuant to this chapter or a
regulation promulgated under this chapter. A license may be
renewed annually except that an apprentice auctioneer license may not
be renewed more than three times one time. No
examination shall be is required for renewal of an
auctioneer, apprentice auctioneer, or auction firm
license if the application for renewal is made within ninety days of the
expiration of the previous license.
(B) When an auctioneer licensee applies for license renewal, the
licensee shall submit with the renewal form proof, in a form acceptable
to the commission, that the licensee has acquired commission-approved
continuing education of at least four hours within the previous twelve
months. Continuing education is not required of apprentice auctioneers
and auction firm license holders unless the firm owner is a licensed
auctioneer.
(C) The renewal of a lapsed license is not retroactive and does not
limit the authority of the courts or the commission to take disciplinary
action against a licensee who engages in the auction profession without
a current license."
SECTION 11. Section 40-6-130 of the 1976 Code, as last amended
by Act 38 of 1991, is further amended to read:
"Section 40-6-130. (A) 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 person's
resident state, as determined by the commission, are at least
substantially equivalent to the requirements of this chapter, if the
resident state extends similar reciprocal privileges to auctioneers who
are residents and licensed by this State.
(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 is not required
to take the examination required under Section 40-6-80
but.
(C) An applicant shall pay the appropriate fee
required 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 the applicant's auctioneering
activities.
(D) An applicant under this section shall pay the fee
required under Section 40-6-200 whether or not he the
applicant currently is bonded as an auctioneer or apprentice
auctioneer in his the applicant's home state. A license
issued under this section must be marked to indicate that its holder is a
nonresident reciprocal licensee.
(E) A license issued pursuant to this section is valid from the
date of issuance to the following June thirtieth and may be renewed from
year to year unless suspended or revoked pursuant to this chapter or a
regulation promulgated under this chapter, if the licensee continues to
be a resident of and licensed in good standing in the licensee's resident
state.
(F) A person licensed under this section shall notify the commission
of the lapse, surrender, suspension, revocation, or any other loss of
license in the person's resident state. The notice must be sent to the
commission, by certified mail, return receipt requested, within ten days
of the occurrence.
(G) A license issued under this section immediately must be
suspended or revoked based upon the occurrence of any of the events set
out in subsection (E) or based upon a change of principal state residence
of the reciprocal licensee.
(H) A person whose license is terminated as a result of a change of
principal state residence may reapply for reciprocal status if 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 this State may
request by application the reciprocal license be converted to that of an
in-state licensee without having to take the examination required by
Section 40-6-80. The commission may require an applicant to pay
processing and application fees it considers appropriate."
SECTION 12. Section 40-6-150 of the 1976 Code is amended to
read:
"Section 40-6-150. (A) No person shall
licensee may conduct an auction in this State without first
having a written agreement with the owner of any property to be sold.
The agreement shall contain the terms and conditions upon which the
auctioneer licensee 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 three years
from the date of the agreement. A written agreement shall
may 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. Copies
of all contracts must be made available to the commission or its
designated agent upon request.
(B) Each auctioneer A licensee shall
maintain accurate records upon receipt of goods for auction and before
their sale, which shall include 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.
These records must be open for inspection by the commission or its
designated agent upon request.
(D) Each auctioneer A licensee shall have
his pocket card license conspicuously displayed in
his possession at each auction he conducts."
SECTION 13. Section 40-6-160 of the 1976 Code, as last amended
by Act 511 of 1990, is further amended to read:
"Section 40-6-160. The following are grounds for
suspension or revocation of an auctioneer or apprentice auctioneer
license Upon its own motion or a verified complaint and a prima
facie showing of a violation of this chapter or a regulation promulgated
under this chapter, the commission may investigate the actions of an
auctioneer, apprentice auctioneer, auction firm, or a person who has
unlawfully assumed to act in such capacity within this State. Upon
notice and a hearing the commission may deny, suspend, or revoke a
license issued under this chapter and assess a fine if the licensee is found
by the commission to have:
(1) A violation of violated this chapter or a
regulation promulgated by the commission under this
chapter.;
(2) engaged in a continued and flagrant course of
misrepresentation or making made false
promises, either by the auctioneer or an employee of
the licensee or by someone acting in his on
behalf of and with his the licensee's consent
made false promises.;
(3) A failure failed to account for or to pay over
within a reasonable time, not to exceed thirty days, money belonging to
another which has come into the auctioneer's licensee's
possession through an auction sale.;
(4) used misleading or untruthful
advertising.;
(5) An act of engaged in conduct in connection with
a sales transaction which demonstrates bad faith or
dishonesty.;
(6) knowingly using used false bidders, cappers,
or pullers, or making knowingly made a
material false statement for license purposes or
representation.;
(7) Conviction been convicted of a felony or
an act involving fraud or moral turpitude.;
(8) wilfully failed to properly and fully complete an
application or made a false statement or gave false information in
connection with an application for a license or renewal or reinstatement
of a license or an investigation by the commission or the commission's
designated agent;
(9) commingled the money or property of a client with the
licensee's own or failed to maintain and deposit in a trust or escrow
account in an insured bank or savings and loan association within three
business days funds received for another person through sale at auction,
unless otherwise required by law. For the purposes of this item, the
funds required to establish and maintain the account are not considered
commingled;
(10) failed to pay a fine assessed or ordered by the commission
under Section 40-6-175;
(11) wilfully failed to properly make a disclosure or to provide
documents or information required by this chapter or the commission;
(12) demonstrated lack of financial responsibility.
The commission may issue a written or oral reprimand for misconduct
as set out in this section subsection when, in its
judgment, the misconduct does not warrant suspension or revocation of
a license.
(B) The commission may conduct an investigation which it
considers necessary to determine whether a person has violated this
chapter or an order issued or a regulation promulgated under this chapter
or to aid in the enforcement of this chapter or regulations promulgated
under this chapter. The commission may require or permit a person to
file a statement in writing, under oath or otherwise as the commission
determines, as to facts and circumstances concerning the matter being
investigated.
(C) For the purpose of an investigation or proceeding under this
chapter, the commission or its designated agent may administer oaths
and upon its own motion or upon request of any party, shall subpoena
witnesses, compel their attendance, take evidence, and require the
production of any matter which is relevant to the investigation, including
the existence, description, nature, custody, condition, and location of any
books, documents, or other tangible items and the identity and location
of persons having knowledge of relevant facts or any other matter
reasonably calculated to lead to the discovery of material evidence.
Upon failure to obey a subpoena or to answer questions propounded by
the commission or its designated agent and upon reasonable notice to all
persons affected, the commission through the Attorney General may
apply to the circuit court for an order compelling compliance.
(D) The authority of the commission to revoke or suspend a licensee
for violation of this chapter or a regulation promulgated under this
chapter includes the authority to place a licensee on probation for a
period not to exceed two years and upon conditions to be determined by
the commission.
(E) The commission may:
(1) issue an order requiring a person to cease and desist from any
unlawful practice and to take action as the commission considers
necessary to carry out the purposes of this chapter if after notice and
hearing, the commission determines that a person has:
(a) violated this chapter;
(b) directly or through an agent or employee knowingly
engaged in false, deceptive, or misleading practices in the sale of goods
or real estate at auction, including advertising and promotions;
(c) violated an order or regulation of the commission;
(2) make findings of fact in writing that the public interest will be
irreparably harmed by delay in issuing an order and in that case may
issue a temporary order. Before issuing the temporary cease and desist
order, the commission or its designated agent, whenever possible by
telephone or otherwise, shall notify the affected person of the
commission's intent to issue a cease and desist order. A temporary cease
and desist order shall include a provision that upon request a hearing
must be held promptly to determine whether or not the order shall
become permanent."
SECTION 14. Section 40-6-180 of the 1976 Code, as last amended
by Act 37 of 1987, is further amended to read:
"Section 40-6-180. No license may be denied, suspended,
or revoked, and no other disciplinary action against a licensee may be
taken, until after fifteen days' notice has been given in writing to the
licensee or applicant stating the ground of the proposed action and until
a public hearing has been held at which he shall have opportunity to be
heard, present testimony in his behalf, and be confronted by witnesses
against him, if he requests the hearing. The commission, in its discretion,
may grant the accused a temporary permit to auction pending the hearing
and determination. Determinations must be made and the licensee or
applicant notified of them within five days after the hearing. Any
auctioneer notified of a suspension may request a rehearing within
twenty days from the date of notification of determination. Upon a
rehearing and continued denial, suspension, or revocation of license, or
other disciplinary action, or upon a refusal for rehearing, the party is
entitled to appeal his case as provided in Chapter 23 of Title 1 (the
Administrative Procedures Act). The commission or its authorized
representatives may subpoena witnesses and documents for any hearing
and may administer oaths to the witnesses. Before denying,
suspending, or revoking a license and before issuing a written or oral
reprimand or assessing a fine, the commission shall notify the applicant
or licensee of the charges and grant the applicant or licensee an
opportunity to be heard. The hearing must be held not less than thirty
days after the applicant or licensee is notified of the charges. If charges
are brought against an apprentice auctioneer, the apprentice's
supervising auctioneer also must be notified of the charges. Hearing of
the charges must be at a time and place designated by the commission
and must be conducted in accordance with the Administrative
Procedures Act."
SECTION 15. Section 40-6-200(B) and (C) of the 1976 Code, as
added by Act 38 of 1991, are amended to read:
"(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 a licensee shall pay, in addition to the license fees
required under this chapter, an annual a fund
contribution fee determined by the commission. After the fund
is initially established a new applicant for licensure also shall pay a fund
contribution fee. However, the any fee
assessed under this subsection may not exceed fifty dollars
a year.
(C) The commission may use contents of the fund in excess of
one hundred thousand dollars to:
(1) 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) underwrite educational seminars, training centers, and other
forms of educational projects for the use and benefit of licensees;
(3) sponsor, contract for, or underwrite education and research
projects in order to advance the auctioneer profession in South Carolina;
and
(4) cooperate with associations of auctioneers or other groups in
order to promote the enlightenment and advancement of the auctioneer
profession in South Carolina.
(C) (D) 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, and
educational program funding the amount in excess must be
deposited in the state general fund."
SECTION 16. Section 40-6-220(B) of the 1976 Code, as added by
Act 38 of 1991, is amended to read:
"(B) Upon payment of a claim, the license of the person
against whom the claim was applied is suspended or
revoked, as the commission determines. 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."
SECTION 17. The amendments to Section 40-6-90(B) as contained
in Section 1 of this act apply to renewal of licenses expiring after June
30, 1995.
SECTION 18. This act takes effect upon approval by the Governor.
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