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90_HB2555
New Act
5 ILCS 80/4.19 new
30 ILCS 105/5.480 new
30 ILCS 105/5.481 new
Creates the Auctioneer Licensing Act to regulate
auctioneers through licensing requirements. Preempts home
rule units from regulating auctioneers in a manner less
restrictive than the Act. Amends the Regulatory Agency Sunset
Act to repeal the Auctioneer Licensing Act on January 1,
2009. Amends the State Finance Act to add the Auctioneer
Licensing Fund and the Auctioneer Education, Research, and
Recovery Fund. Effective January 1, 1999.
LRB9009099JSdv
LRB9009099JSdv
1 AN ACT to create the Auctioneer Licensing Act, amending
2 named Acts.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 1. Short title. This Act may be cited as the
6 Auctioneer Licensing Act.
7 Section 5. Legislative purpose. The General Assembly
8 finds that Illinois does not have the ability, without
9 legislation, to enter into reciprocal agreements with other
10 states to allow persons practicing auctioneering in Illinois
11 to engage in the business of auctioneering in other states.
12 This Body further finds that, without legislation, the level
13 of professionalism desired by auctioneers and the public
14 cannot be attained. Therefore, it is the purpose of this Act
15 to license and regulate auctioneers.
16 Section 10. As used in this Act:
17 "Auctioneer" means a person who, for a fee, commission,
18 or any other valuable consideration or with the intention or
19 expectation of receiving valuable consideration by the means
20 of or process of an auction or sale at auction, offers,
21 negotiates, or attempts to negotiate a listing contract,
22 sale, purchase, or exchange of goods, chattels, merchandise,
23 personal property, real property, or any commodity that may
24 lawfully be kept or offered for sale by or at public auction.
25 "Board" means the Auctioneer Licensing Board.
26 "Department" means the Department of Professional
27 Regulation.
28 "Director" means the Director of Professional Regulation.
29 "Goods" means chattels, movable goods, merchandise, or
30 personal property or commodities of any form or type that may
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1 be lawfully kept or offered for sale.
2 "Person" means an individual, association, partnership,
3 or corporation or the officers, directors, or employees of a
4 corporation.
5 Section 15. Application of Act.
6 (a) This Act shall not be construed to apply to the
7 following:
8 (1) an auction conducted solely by or for a
9 nonprofit organization; and
10 (2) a sale by an owner of goods, merchandise, or
11 property of any kind if the owner conducts the sale.
12 (b) An auctioneer may work for an auction company that
13 is licensed in this State in an emergency situation for a
14 period of 30 days but shall, after that time, meet all of the
15 requirements of this Act and shall make application and pay
16 fees for the next examination date during the 30-day period.
17 Section 20. License requirement.
18 (a) On and after January 1, 1999, no person shall act as
19 an auctioneer, hold himself or herself out as an auctioneer,
20 or advertise his or her services as an auctioneer in this
21 State without a license issued by the Department under this
22 Act.
23 (b) If an auction company owner is not the principal
24 auctioneer, the auction company owner shall apply for a
25 license and meet all the provisions of this Act. When the
26 owner of an auction company or the designated person of a
27 corporation and the auctioneer are the same person, only one
28 license shall be required.
29 (c) A person who violates subsection (a) or (b) shall be
30 liable for a civil penalty not to exceed $200 for a first
31 offense and not to exceed $500 for a second or subsequent
32 offense.
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1 Section 25. Auctioneer Licensing Board.
2 (a) There is hereby created the Auctioneer Licensing
3 Board. The Board shall consist of 7 members to be appointed
4 by the Governor with recommendations from the Illinois State
5 Auctioneers Association. All members shall be licensed
6 auctioneers, except that for the initial appointments, these
7 members may be persons without a license but who have been
8 auctioneers for at least 5 years preceding their membership
9 on the Board. One member may be a representative of the
10 general public who has no responsibility for management or
11 formation of policy of, nor any financial interest in, the
12 auctioneering profession nor any other connection with the
13 profession.
14 (b) Members shall be appointed by the Governor for a
15 term of 4 years, except that of the initial appointments, 3
16 members shall be appointed to serve a term of 3 years and 4
17 members shall be appointed to serve a term of 4 years. The
18 Governor shall fill a vacancy for the remainder of any
19 unexpired term. Each member shall serve on the Board until
20 his or her successor is appointed and qualified. No member
21 of the Board shall serve more than 2 consecutive 4-year
22 terms.
23 To the extent practicable, the Governor shall appoint
24 members to insure that the various geographic regions of the
25 State of Illinois are properly represented on the Board.
26 (c) The Board shall annually elect one of its members as
27 chairperson and one as vice chairperson. No officer shall
28 serve more than twice in succession in the same office. Each
29 officer shall serve until his or her successor has been
30 elected.
31 (d) A majority of the Board members currently appointed
32 shall constitute a quorum. A vacancy in the membership of
33 the Board shall not impair the right of a quorum to exercise
34 all of the rights and perform all the duties of the Board.
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1 (e) Each member of the Board shall be reimbursed for
2 expenses incurred while engaged in the performance of his or
3 her Board duties.
4 (f) Members of the Board shall be immune from suit in an
5 action based upon any disciplinary proceedings or other acts
6 performed in good faith as members of the Board.
7 (g) The Director shall give due consideration to all
8 recommendations of the Board.
9 Section 30. Application for license.
10 (a) Applications for original licenses shall be made to
11 the Department in writing on forms prescribed by the
12 Department and shall be accompanied by the required fee,
13 which shall not be refundable. An application shall require
14 the information that in the judgment of the Department will
15 enable it to evaluate the qualifications of the applicant for
16 licensure.
17 (b) In addition to the license fees required under this
18 Act, upon renewal of every license issued pursuant to this
19 Act the Board shall charge every licensee an amount not to
20 exceed $30 per year to be deposited into the Auctioneer
21 Education, Research, and Recovery Fund, a special fund hereby
22 created in the State treasury. An original applicant for any
23 license issued pursuant to this Act shall likewise submit to
24 the Board an additional fee of $30 to be deposited in the
25 Auctioneer Education, Research, and Recovery Fund and shall
26 also be subjected thereafter to an annual renewal fee as of
27 the regular renewal date.
28 (c) In addition to the license fees required under this
29 Act, the Board, based upon its own discretion as to need, may
30 assess each licensee upon renewal an amount equal or less
31 than $30 per year, or nothing, but not more. Each original
32 applicant shall pay the original amount of $30, but upon
33 renewal shall pay the same fee as other licensees.
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1 Section 32. Use of the Auctioneer Education, Research,
2 and Recovery Fund.
3 (a) When a licensee has been duly found guilty of
4 violating any one or more of the provisions or any one or
5 more of the administrative rules duly promulgated by the
6 Board, and upon the conclusion of a final order entered by
7 the Board or by the courts if appealed, the Board is
8 authorized to pay to the aggrieved person or persons an
9 aggregate amount not to exceed $30,000 against any one
10 licensee, provided that the licensee has refused to pay such
11 claim within a period of 20 days of entry of a final order
12 and provided further that the amount or amounts of money in
13 question are certain and liquidated.
14 (b) The Board shall maintain a minimum level of $400,000
15 for recovery and guaranty purposes. These funds may be
16 invested or reinvested in the same manner as funds of the
17 State employees' pension fund, or, in the discretion of the
18 Board, to the agency fund account as set out. Sufficient
19 liquidity, however, shall be maintained so that there is
20 money available to satisfy any and all claims which may be
21 processed through the Board by means of administrative
22 hearing as outlined in this Act.
23 (c) The Board, in its discretion, may use any funds in
24 excess of $400,000, regardless of whether it is from the
25 Auctioneer Education, Research, and Recovery Fund fees or
26 accrued interest thereon, for any or all of the following
27 purposes:
28 (1) To carry out the advancement of education and
29 research in the auction field for the benefit of those
30 licensed under this Act and improving and making the
31 auction industry even more efficient.
32 (2) To underwrite education seminars, caravans, and
33 other forms of educational projects for the use and
34 benefit generally of auctioneer licensees.
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1 (3) To sponsor, contract for, and to underwrite any
2 and all other educational and research projects of a
3 similar nature that contribute to the advancement of the
4 auction field in Illinois.
5 (4) To cooperate with associations of auctioneers
6 and any other groups for the enlightenment and
7 advancement of the auctioneer licensees of Illinois.
8 (5) To increase the level of the Auctioneer
9 Education, Research, and Recovery Fund above $400,000.
10 Section 35. Qualifications for license. To qualify for a
11 license under this Act, a person shall:
12 (1) Be at least 18 years of age.
13 (2) Be of good reputation, trustworthy, and
14 competent to transact the business of an auctioneer in a
15 manner to safeguard the interests of the public. The
16 Board is authorized to require information from an
17 applicant to determine the applicant's honesty,
18 truthfulness, and competence.
19 (3) Pass an examination conducted by the Department
20 or its authorized representatives. The examination shall
21 be held 4 times each year and an examination fee of $75
22 shall be collected from each applicant to defray the
23 expenses of the examination. The examination shall
24 include questions on ethics, reading, writing, spelling,
25 elementary arithmetic, and a general knowledge of the
26 laws of Illinois relating to contracts of sale, agency,
27 leases, auctions, brokerage, and the relevant provisions
28 of Article 4 of the Uniform Commercial Code.
29 Section 40. Powers and duties of the Department.
30 (a) The Department shall exercise the powers and duties
31 prescribed by the Civil Administrative Code of Illinois for
32 the administration of licensing Acts and shall exercise any
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1 other powers and duties necessary for effectuating the
2 purposes of this Act.
3 (b) The Department may adopt rules consistent with the
4 provisions of this Act for its administration and enforcement
5 and may prescribe forms that shall be issued in connection
6 with this Act. The rules may include but are not limited to
7 standards and criteria for licensure, professional conduct,
8 and discipline.
9 (c) The Department shall consult with the Board in
10 adopting rules. Notice of proposed rulemaking shall be
11 transmitted to the Board and the Department shall review the
12 Board's responses and any recommendations made by the Board.
13 The Department may solicit the advice of the Board on any
14 matter relating to the administration and enforcement of this
15 Act. Nothing shall limit the ability of the Board to provide
16 recommendations to the Director regarding any matter
17 affecting the administration of this Act.
18 The Department shall issue quarterly to the Board a
19 status report of all complaints relating to the profession
20 received by the Department.
21 Section 45. Practice before this Act. A person who (1) is
22 a resident of this State, (2) has lawfully practiced as an
23 auctioneer for a period of at least one year before the
24 effective date of this Act, (3) has been the principal
25 auctioneer in at least 5 auctions of either real or personal
26 property during that period of time, and (4) has furnished
27 the Department with satisfactory proof of these requirements,
28 shall be issued a license by the Department without
29 examination on proper application, bond payment, and payment
30 of the required application fee.
31 Section 50. Licensing fees. The Department shall set by
32 rule fees for the administration of this Act, including but
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1 not limited to fees for original and renewal licensing and
2 restoration of a license. The licensing fee shall be $70 for
3 a 2 year period.
4 Section 55. Expiration; renewal; continuing education.
5 (a) A license issued under this Act shall expire 2 years
6 after the date of issuance. The Department shall issue a
7 renewal license to an applicant on submission of a completed
8 renewal application and payment of the required fee without
9 examination.
10 (b) The Board shall develop, and the Department may
11 adopt by rule, an annual program for continuing education. An
12 individual who applies for a license must complete 12 actual
13 hours of continuing education from course providers that are
14 approved by the Board.
15 (c) The continuing education requirement is as follows:
16 (1) At least 6 actual hours of courses in any of
17 the following core subjects:
18 (A) Illinois rules and statutes governing
19 auctioneering.
20 (B) Federal statues governing auctioneering.
21 (C) Auctioneering ethics.
22 (D) Escrow and trust funds.
23 (E) Contracts.
24 (F) Any other subject matter approved by the
25 Board.
26 (2) At least 6 actual hours of courses in any of
27 the following elective subjects:
28 (A) Agency.
29 (B) Business courses related to auctioneering.
30 (C) Auction management.
31 (D) Bid calling.
32 (E) Public speaking.
33 (F) Advertising.
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1 (G) Specialty auction topics.
2 (H) Any other subject matter approved by the
3 Board.
4 (d) To obtain approval as a continuing education
5 sponsor, a sponsor must do the following:
6 (1) Provide the Department information on courses,
7 curriculum, and facilities as determined by the Board.
8 (2) Provide each participant who successfully
9 completes an approved course a certificate that includes
10 the following:
11 (A) The name of the participant.
12 (B) The name, address, and signature of the
13 sponsor.
14 (C) The number of approved actual course
15 hours.
16 (D) Any other information required by the
17 Board.
18 (E) Meets any standard that the Board adopts
19 by rule.
20 (e) A continuing education sponsor that has received
21 approval under subsection (d) of this Section must maintain
22 records for 5 years of the participants who successfully
23 complete and pass each course. If the sponsor ceases
24 operations, the owner shall place the records in the care of
25 a custodian that is approved by the Board.
26 (f) The approval for a sponsor expires February 28 every
27 even-numbered year. At least 30 days before a sponsor's
28 approval expires, the sponsor must submit a letter requesting
29 renewal of approval and the renewal fee.
30 (g) The Board may inspect an approved sponsor's records
31 and facilities.
32 (h) A person may advertise that a sponsor's course is
33 approved by the Board and fulfills the requirements of the
34 Board. A person may not advertise that the sponsor or the
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1 sponsor's course is required or recommended by the Board.
2 (i) A licensee who is initially licensed in the second
3 year of the renewal is exempt from the continuing education
4 requirement under this Act for that renewal period.
5 (j) An applicant for renewal must certify on the
6 application that the applicant:
7 (1) has complied with the continuing education
8 requirement;
9 (2) is exempt from the continuing education
10 requirement because the individual has been licensed for
11 less than one year; or
12 (3) has not complied with the continuing education
13 requirement, but is seeking a waiver under subsection (k)
14 of this Section.
15 (k) The Board may grant an applicant a waiver from all
16 or part of the continuing education requirement for the
17 renewal period if the applicant was not able to fulfill the
18 requirement due to a hardship that resulted from any of the
19 following conditions:
20 (1) Service in the armed forces of the United
21 States during a substantial part of the renewal period.
22 (2) An incapacitating illness or injury.
23 (3) Other circumstances determined by the Board.
24 An individual granted a waiver under this subsection may
25 not perform any act that requires an auctioneer license until
26 the individual has fulfilled the continuing education
27 requirement under this Section.
28 (l) The Board may grant an applicant an inactive
29 auctioneer license if the auctioneer submits a written
30 application to the Board requesting that the auctioneer
31 license be classified as inactive. An auctioneer granted an
32 inactive license under this Section may not perform any act
33 that requires an auctioneer license. If a disciplinary or
34 suspension hearing is pending against an auctioneer, the
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1 individual may not be granted an inactive license without the
2 approval of the Board. An individual granted an inactive
3 license must continue to pay the same fees that a licensee is
4 required to pay. An inactive licensee is not required to
5 complete the continuing education requirement while the
6 license is inactive.
7 An individual may reinstate an inactive auctioneer
8 license if the individual:
9 (1) submits a written application to the Board
10 requesting that the inactive auctioneer license be
11 classified as active; and
12 (2) fulfills the applicable continuing education
13 requirements for the licensure period during which the
14 license is reinstated.
15 Section 60. Nonresident auctioneer reciprocity.
16 (a) A person holding a license to engage in auctions
17 issued to him or her by the proper authority of a state,
18 territory, or possession of the United States of America or
19 the District of Columbia having licensing requirements equal
20 to or substantially equivalent to the requirements of this
21 State and who, in the opinion of the Department, otherwise
22 meets the requirements of this Act may upon application and
23 payment of the required fee be licensed without examination.
24 (b) In every instance the nonresident shall pay the
25 issuance fee and the annual renewal fee required. The
26 non-resident shall also pay the annual fee to the Auctioner
27 Education, Research, and Recovery Fund, and in addition, any
28 fee required, whether or not the examination requirements are
29 waived.
30 (c) In addition, a nonresident applicant shall file an
31 irrevocable consent with the Department that actions may be
32 commenced against the applicant in a court of competent
33 jurisdiction in this State by the service of summons,
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1 process, or pleading authorized by the law on the Director.
2 The consent shall stipulate and agree that service of the
3 process, summons, or pleading on the Director shall be taken
4 and held in all courts to be valid and binding as if actual
5 service had been made upon the applicant in Illinois. If a
6 summons, process, or pleading is served upon the Director, it
7 shall be by duplicate copies, one of which shall be retained
8 by the Department and the other immediately forwarded by
9 certified or registered mail to the last known business
10 address of the applicant against whom the summons, process,
11 or pleading may be directed.
12 (d) Any nonresident applicant who is a licensee in and
13 who resides in another state where the qualifications
14 prescribed at the time of licensing were, in the opinion of
15 the Board, equal to those prescribed in Illinois at the date
16 of application, and where reciprocal licensing privileges
17 satisfactory to the Board are granted to licensees and
18 residents of this State, may be granted a license without an
19 examination. A fee of $100 in addition to the fees set out
20 shall be collected from each applicant subject to this
21 Section.
22 Section 70. Inactive status; restoration.
23 (a) An auctioneer who has allowed his or her license to
24 expire or who has had his or her license placed on inactive
25 status may have his or her license restored by making
26 application to the Department and filing proof acceptable to
27 the Department of his or her fitness to have his or her
28 license restored, and by paying the required fee. The proof
29 of fitness may include sworn evidence certifying to active
30 lawful practice in another jurisdiction.
31 The Department shall determine, by an evaluation program
32 established by rule, the licensee's fitness for restoration
33 of his or her license and shall establish procedures and
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1 requirements for the restoration.
2 However, an auctioneer license that expired while he or
3 she was (1) in federal service on active duty with the Armed
4 Forces of the United States or the State militia called into
5 service or training, or (2) in training or education under
6 the supervision of the United States before induction into
7 military service, may have his or her license restored
8 without paying any lapsed renewal fees if, within 2 years
9 after honorable termination of that service, training, or
10 education, he or she furnishes the Department with
11 satisfactory evidence to the effect that he or she has been
12 so engaged and that his or her service, training, or
13 education has been so terminated.
14 (b) An auctioneer who notified the Department in writing
15 on forms prescribed by the Department may elect to place his
16 or her license on inactive status and shall, subject to rules
17 of the Department, be excused from payment of renewal fees
18 until he or she notifies the Department in writing of his or
19 her intention to restore his or her license.
20 An auctioneer requesting restoration from inactive status
21 shall be required to pay the current renewal fee and shall be
22 required to restore his or her license as provided in
23 subsection (a).
24 An auctioneer whose license is on inactive status shall
25 not practice in the State of Illinois.
26 A licensee who engages in the practice of auctioneering
27 while his or her license is lapsed or on inactive status
28 shall be considered to be practicing without a license, which
29 shall be grounds for discipline under Section 85 of this Act.
30 Section 75. Roster. The Department shall maintain a
31 roster of the names and addresses of all licensees and of all
32 persons whose licenses have been suspended or revoked. This
33 roster shall be available upon written request and payment of
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1 the required fee.
2 Section 85. Grounds for disciplinary action.
3 (a) The Department may refuse to issue or to renew, or
4 may revoke or suspend a license or may place on probation,
5 censure, reprimand, or take other disciplinary action with
6 regard to any license issued under this Act, including the
7 issuance of fines not to exceed $5,000 for each violation,
8 for any one or combination of the following causes:
9 (1) Material misstatement in furnishing information
10 to the Department.
11 (2) Violations of this Act or its rules.
12 (3) Conviction of a crime under the laws of any
13 United States jurisdiction that is a felony or a
14 misdemeanor, an essential element of which is dishonesty,
15 or of a crime that is directly related to the practice of
16 the profession.
17 (4) Making a misrepresentation for the purpose of
18 obtaining a license.
19 (5) Engaging in a pattern of practice or other
20 behavior that demonstrates incapacity or incompetence to
21 practice under this Act.
22 (6) Aiding or assisting another person in violating
23 a provision of this Act or its rules.
24 (7) Failing to provide information within 60 days
25 in response to a written request made by the Department.
26 (8) Engaging in dishonorable, unethical, or
27 unprofessional conduct of a character likely to deceive,
28 defraud, or harm the public, as defined by rule.
29 (9) Failing to account for or remit within a
30 reasonable time any money belonging to others that comes
31 into his or her possession in the course of providing
32 auctioneering services.
33 (10) Discipline by another United States
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1 jurisdiction or foreign nation, if at least one of the
2 grounds for discipline is the same or substantially
3 equivalent to those set forth in this Section.
4 (11) Directly or indirectly giving to or receiving
5 from a person, firm, corporation, partnership, or
6 association a fee, commission, rebate, or other form of
7 compensation for professional services not actually or
8 personally rendered.
9 (12) A finding by the Board that the licensee,
10 after having his or her license placed on probationary
11 status, has violated the terms of probation.
12 (13) Commingling funds of others with his or her
13 own funds or failing to keep the funds of others in an
14 escrow or trustee account.
15 (14) Willfully making or filing false records or
16 reports in his or her practice, including but not limited
17 to false records or reports filed with State agencies.
18 (15) Willfully failing to report an instance of
19 suspected child abuse or neglect as required under the
20 Abused and Neglected Child Reporting Act.
21 (16) Failure to voluntarily furnish to a signing
22 party at the time of execution copies of all written
23 instruments prepared by the auctioneer and signed by the
24 other party.
25 (17) Being named as a perpetrator in an indicated
26 report by the Department of Children and Family Services
27 under the Abused and Neglected Child Reporting Act and
28 upon proof by clear and convincing evidence that the
29 licensee has caused a child to be an abused child or
30 neglected child as defined in the Abused and Neglected
31 Child Reporting Act.
32 (18) Employment of fraud, deception, or any
33 unlawful means in applying for or securing a license as
34 an auctioneer.
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1 (19) Allowing another person to use his or her
2 license to practice.
3 (20) Attempting to subvert or cheat on a licensing
4 examination administered under this Act.
5 (21) Failure of a licensee to report to the
6 Department any adverse final action taken against the
7 licensee by another licensing jurisdiction (any other
8 jurisdiction of the United States or any foreign state or
9 country), by any government agency, by any law
10 enforcement agency, or by any court or liability for
11 conduct that would constitute grounds for action as set
12 forth in this Section.
13 (b) The Department may refuse to issue or may suspend
14 the license of a person who fails to file a return, to pay
15 the tax, penalty, or interest shown in a filed return, or to
16 pay any final assessment of the tax, penalty, or interest as
17 required by any tax Act administered by the Department of
18 Revenue, until the requirements of the tax Act are satisfied.
19 (c) The determination by a circuit court that a licensee
20 is subject to involuntary admission or judicial admission as
21 provided in the Mental Health and Developmental Disabilities
22 Code operates as an automatic suspension. The suspension will
23 end only upon a finding by a court that the patient is no
24 longer subject to involuntary admission or judicial admission
25 and issuance of an order so finding and discharging the
26 patient and upon the recommendation of the Board to the
27 Director that the licensee be allowed to resume his or her
28 practice.
29 Section 90. Returned checks; fines. A person who delivers
30 a check or other payment to the Department that is returned
31 to the Department unpaid by the financial institution upon
32 which it is drawn shall pay to the Department, in addition to
33 the amount already owed to the Department, a fine of $50. If
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1 the check or other payment was for a renewal or issuance fee
2 and that person practices without paying the renewal fee or
3 issuance fee and the fine due, an additional fine of $100
4 shall be imposed. The fines imposed by this Section are in
5 addition to any other discipline provided under this Act for
6 unlicensed practice or practice on a nonrenewed license. The
7 Department shall notify the person that fees and fines shall
8 be paid to the Department by certified check or money order
9 within 30 calendar days of the notification. If, after the
10 expiration of 30 days from the date of the notification, the
11 person has failed to submit the necessary remittance, the
12 Department shall automatically terminate the license or deny
13 the application without a hearing. If, after termination or
14 denial, the person seeks a license, he or she shall apply to
15 the Department for restoration or issuance of the license and
16 pay all fees and fines due to the Department. The Department
17 may establish a fee for the processing of an application for
18 restoration of a license to pay all expenses of processing
19 the application. The Director may waive the fines due under
20 this Section in individual cases where the Director finds
21 that the fines would be unreasonable or unnecessarily
22 burdensome.
23 Section 95. Cease and desist order.
24 (a) If a person violates a provision of this Act, the
25 Director, in the name of the People of the State of Illinois
26 through the Attorney General of the State of Illinois, or the
27 State's Attorney of a county in which the violation occurs,
28 may petition for an order enjoining the violation or for an
29 order enforcing compliance with this Act. Upon the filing of
30 a verified petition in court, the court may issue a temporary
31 restraining order without notice or bond and may
32 preliminarily and permanently enjoin the violation. If it is
33 established that the licensee has violated or is violating
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1 the injunction, the court may punish the offender for
2 contempt of court. Proceedings under this Section shall be
3 in addition to, and not in lieu of, all other remedies and
4 penalties provided by this Act.
5 (b) If a person practices as an auctioneer or holds
6 himself or herself out as an auctioneer without being
7 licensed under the provisions of this Act, then any licensed
8 auctioneer, any interested party, or any person injured
9 thereby may, in addition to the Director or State's Attorney,
10 petition for relief as provided in subsection (a) of this
11 Section.
12 (c) Whenever in the opinion of the Department a person
13 violates a provision of this Act, the Department may issue a
14 rule to show cause why an order to cease and desist should
15 not be entered against him or her. The rule shall clearly set
16 forth the grounds relied upon by the Department and shall
17 provide a period of 7 days from the date of the rule to file
18 an answer to the satisfaction of the Department. Failure to
19 answer to the satisfaction of the Department shall cause an
20 order to cease and desist to be issued immediately.
21 Section 100. Investigation; notice; hearing. The
22 Department may investigate the actions of an applicant or of
23 a person or persons holding or claiming to hold a license.
24 The Department shall, before taking any disciplinary action
25 that the Department may deem proper with regard to a license,
26 at least 30 days prior to the date set for a hearing, notify
27 the applicant or licensee in writing of any charges made and
28 the time and place for a hearing of the charges before the
29 Board, direct him or her to file his or her written answer to
30 the Board under oath within 20 days after the service on him
31 or her, and inform him or her that if he or she fails to file
32 an answer, default will be entered against him or her, his or
33 her license may be suspended, revoked, or placed on
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1 probationary status or other disciplinary action, including
2 limiting the scope, nature, or extent of his or her practice
3 as the Department may deem proper, may be taken against him
4 or her. Such written notice may be served by personal
5 delivery or certified or registered mail at the last known
6 address. At the time and place fixed in the notice, the
7 Department shall proceed to hear the charges and the parties
8 or their counsel shall be afforded ample opportunity to
9 present statements, testimony, evidence, and argument that
10 may be pertinent to the charges or to the defense to the
11 charges. The Department may continue the hearing from time to
12 time. If the accused person, after receiving notice, fails to
13 file an answer, his or her license may, in the discretion of
14 the Director, having first received the recommendation of the
15 Board, be suspended, revoked, or placed on probationary
16 status, or the Director may take whatever disciplinary action
17 as he or she may deem proper, including limiting the scope,
18 nature, or extent of the person's practice without a hearing
19 if the act or acts charged constitute sufficient grounds for
20 disciplinary action under this Act.
21 Section 105. Record of proceedings. The Department, at
22 its expense, shall preserve a record of all proceedings at
23 the formal hearing of any case involving the refusal to issue
24 or renew a license or the discipline of a licensee. The
25 notice of hearing, complaint, and all other documents in the
26 nature of pleadings and written motions filed in the
27 proceedings, the transcript of testimony, the report of the
28 Board or hearing officer, and orders of the Department shall
29 be the record of the proceeding.
30 Section 110. Order for production of documents. A circuit
31 court may, upon application of the Department or its designee
32 or of the applicant or licensee against whom proceedings
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1 pursuant to Section 100 of this Act are pending, enter an
2 order requiring the attendance of witnesses and their
3 testimony and the production of documents, papers, files,
4 books, and records in connection with a hearing or
5 investigation. The court may compel obedience to its order
6 through contempt proceedings.
7 Section 115. Subpoena power. The Department shall have
8 power to subpoena and bring before it any person in this
9 State and to take testimony orally or by deposition, with the
10 same fees and mileage and in the same manner as prescribed by
11 law in judicial proceedings in civil cases in circuit courts
12 of this State.
13 The Director and any member of the Board designated by
14 the Director shall each have the authority to administer
15 oaths to witnesses at any hearing that the Department is
16 authorized to conduct under this Act, and any other oaths
17 required or authorized to be administered by the Department
18 under this Act.
19 Section 120. Board report. At the conclusion of the
20 hearing, the Board shall present to the Director a written
21 report of its findings of fact, conclusions of law, and
22 recommendations. The report shall contain a finding whether
23 or not the accused person violated this Act or failed to
24 comply with the conditions required in this Act. The Board
25 shall specify the nature of the violation or failure to
26 comply and shall make its recommendations to the Director.
27 The report of findings of fact, conclusions of law, and
28 recommendation of the Board shall be the basis for the
29 Department's order for refusal or for the granting of a
30 license. If the Director disagrees in any regard with the
31 report of the Board, the Director may issue an order in
32 contravention of the report. The Director shall provide a
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1 written report to the Board on any deviation from the Board's
2 report, and shall specify with particularity the reasons for
3 his or her action in the final order. The finding is not
4 admissible in evidence against the person in a criminal
5 prosecution brought for the violation of this Act, but the
6 hearing and finding are not a bar to a criminal prosecution
7 brought for the violation of this Act.
8 Section 125. Hearing officer. Notwithstanding the
9 provisions of Section 100 of this Act, the Director shall
10 have the authority to appoint an attorney licensed to
11 practice law in the State of Illinois to serve as the hearing
12 officer in an action for refusal to issue or renew a license
13 or for the discipline of a licensee. The Director shall
14 notify the Board of an appointment. The hearing officer
15 shall have full authority to conduct the hearing. The
16 hearing officer shall report his or her findings of fact,
17 conclusions of law, and recommendations to the Board and the
18 Director. The Board shall have 60 days from receipt of the
19 report to review the report of the hearing officer and
20 present its findings of fact, conclusions of law, and
21 recommendations to the Director. If the Board fails to
22 present its report within the 60-day period, the Director
23 shall issue an order based on the report of the hearing
24 officer. If the Director disagrees in any regard with the
25 report of the Board or hearing officer, he or she may issue
26 an order in contravention of the report. The Director shall
27 provide a written explanation to the Board on any such
28 deviation and shall specify with particularity the reasons
29 for his or her action in the final order.
30 Section 130. Motion for rehearing. In a case involving
31 the refusal to issue or renew a license or the discipline of
32 a licensee, a copy of the Board's report shall be served upon
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1 the respondent by the Department, either personally or as
2 provided in this Act for the service of the notice of
3 hearing. Within 20 days after service, the respondent may
4 present to the Department a motion in writing for a
5 rehearing, which shall specify the particular grounds for
6 rehearing. If no motion for rehearing is filed, then upon the
7 expiration of the 20-day period, or if a motion for rehearing
8 is denied, then upon the denial the Director may enter an
9 order in accordance with recommendations of the Board, except
10 as provided in Section 120 or 125 of this Act. If the
11 respondent shall order from the reporting service and pay for
12 a transcript of the record within the time for filing a
13 motion for rehearing, the 20-day period within which the
14 motion may be filed shall commence upon the delivery of the
15 transcript to the respondent.
16 Section 135. Rehearing on order of Director. Whenever the
17 Director is satisfied that substantial justice has not been
18 done in the revocation or suspension of a license or refusal
19 to issue or renew a license, the Director may order a
20 rehearing by the same or another hearing officer or by the
21 Board.
22 Section 140. Order; prima facie proof. An order or a
23 certified copy of an order, over the seal of the Department
24 and purporting to be signed by the Director, shall be prima
25 facie proof:
26 (1) That the signature is the genuine signature of
27 the Director.
28 (2) That the Director is duly appointed and
29 qualified.
30 (3) That the Board and its members are qualified to
31 act.
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1 Section 145. Restoration of license. At any time after
2 the suspension or revocation of a license, the Department may
3 restore it to the licensee, unless after an investigation and
4 a hearing, the Department determines that restoration is not
5 in the public interest. Where circumstances of suspension or
6 revocation so indicate, the Department may require an
7 examination of the licensee before restoring his or her
8 license.
9 Section 150. Surrender of license. Upon the revocation or
10 suspension of a license, the licensee shall immediately
11 surrender the license to the Department. If the licensee
12 fails to do so, the Department shall have the right to seize
13 the license.
14 Section 155. Temporary suspension. The Director may
15 temporarily suspend the license of an auctioneer without a
16 hearing, simultaneously with the institution of proceedings
17 for a hearing provided for in Section 100 of this Act, if the
18 Director finds that evidence in his or her possession
19 indicates that continuation in practice would constitute an
20 imminent danger to the public. If the Director temporarily
21 suspends a license without a hearing, a hearing by the
22 Department must be held within 30 days after the suspension
23 has occurred and concluded without appreciable delay.
24 Section 160. Illinois Administrative Procedure Act. The
25 Illinois Administrative Procedure Act is hereby expressly
26 adopted and incorporated in this Act as if all of the
27 provisions of that Act were included in this Act, except that
28 the provision of subsection (d) of Section 10-65 of the
29 Illinois Administrative Procedure Act, providing that at
30 hearings the licensee has the right to show compliance with
31 all lawful requirements for retention, continuation, or
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1 renewal of the license, is specifically excluded. For the
2 purposes of this Act, the notice required under Section 10-25
3 of the Illinois Administrative Procedure Act is deemed
4 sufficient when mailed to the last known address of a party.
5 Section 165. Administrative Review Law. All final
6 administrative decisions of the Department are subject to
7 judicial review pursuant to the provisions of the
8 Administrative Review Law and its rules. The term
9 "administrative decision" is defined as in Section 3-101 of
10 the Code of Civil Procedure.
11 Proceedings for judicial review shall be commenced in the
12 circuit court of the county in which the party applying for
13 review resides, but if the party is not a resident of this
14 State, venue shall be in Sangamon County.
15 Section 170. Certificate of record. The Department shall
16 not be required to certify any record to a Court or file an
17 answer in court or otherwise appear in a court in a judicial
18 review proceeding, unless there is filed in the court, with
19 the complaint, a receipt from the Department acknowledging
20 payment of the costs of furnishing and certifying the record.
21 Failure on the part of the plaintiff to file a receipt in
22 court shall be grounds for dismissal of the action.
23 Section 175. Auctioneer Licensing Fund. There is created
24 a special fund in the State Treasury to be known as the
25 Auctioneer Licensing Fund. All moneys collected by the
26 Department under this Act shall be deposited into the Fund.
27 The Department shall use moneys in the Fund, pursuant to
28 appropriation, to administer and enforce this Act.
29 Section 180. Home rule preemption. A home rule unit may
30 not regulate auctioneers in a manner less restrictive than
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1 the regulation of auctioneers by the State under this Act.
2 This Section is a limitation under paragraph (i) of Section 6
3 of Article VII of the Illinois Constitution of 1970 on the
4 concurrent exercise by home rule units of powers and
5 functions exercised by the State.
6 Section 250. The Regulatory Agency Sunset Act is amended
7 by adding Section 4.19 as follows:
8 (5 ILCS 80/4.19 new)
9 Sec. 4.19. Act repealed on January 1, 2009. The
10 following Act is repealed on January 1, 2009:
11 The Auctioneer Licensing Act.
12 Section 300. The State Finance Act is amended by adding
13 Sections 5.480 and 5.481 as follows:
14 (30 ILCS 105/5.480 new)
15 Sec. 5.480. The Auctioneer Licensing Fund.
16 (30 ILCS 105/5.481 new)
17 Sec. 5.481. The Auctioneer Education, Research, and
18 Recovery Fund.
19 Section 999. Effective date. This Act takes effect
20 January 1, 1999.