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Public Act 91-0603
HB1805 Enrolled LRB9102826ACtm
AN ACT to create the Auction License Act, amending named
Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
ARTICLE 5. GENERAL PROVISIONS
Section 5-1. Short title. This Act may be cited as the
Auction License Act.
Section 5-5. Legislative intent. The General Assembly
finds that Illinois does not have the ability, without
legislation, to enter into reciprocal agreements with other
states to allow residents of Illinois to practice
auctioneering in other states. This body further finds that,
without legislation, Illinois does not have the ability to
evaluate the competency of persons engaged in the auction
business or to regulate this business for the protection of
the public. Therefore, it is the purpose of this Act to
license and regulate auctioneers.
Section 5-10. Definitions, as used in this Act:
"Advertisement" means any written, oral, or electronic
communication that contains a promotion, inducement, or offer
to conduct an auction or offer to provide an auction service,
including but not limited to brochures, pamphlets, radio and
television scripts, telephone and direct mail solicitations,
electronic media, and other means of promotion.
"Advisory Board" means the Auctioneer Advisory Board.
"Associate auctioneer" means a person who conducts an
auction, but who is under the direct supervision of, and is
sponsored by, a licensed auctioneer or auction firm.
"Auction" means the sale or lease of property, real or
personal, by means of exchanges between an auctioneer or
associate auctioneer and prospective purchasers or lessees,
which consists of a series of invitations for offers made by
the auctioneer or associate auctioneer and offers by
prospective purchasers or lessees for the purpose of
obtaining an acceptable offer for the sale or lease of the
property, including the sale or lease of property via mail,
telecommunications, or the Internet.
"Auction contract" means a written agreement between an
auctioneer, associate auctioneer, or an auction firm and a
seller or sellers.
"Auction firm" means any corporation, partnership, or
limited liability company that acts as an auctioneer and
provides an auction service.
"Auction school" means any educational institution,
public or private, which offers a curriculum of auctioneer
education and training approved by the Office of Banks and
Real Estate.
"Auction service" means the service of arranging,
managing, advertising, or conducting auctions.
"Auctioneer" means a person or entity who, for another,
for a fee, compensation, commission, or any other valuable
consideration at auction or with the intention or expectation
of receiving valuable consideration by the means of or
process of an auction or sale at auction or providing an
auction service, offers, negotiates, or attempts to negotiate
an auction contract, sale, purchase, or exchange of goods,
chattels, merchandise, personal property, real property, or
any commodity that may be lawfully kept or offered for sale
by or at auction.
"Commissioner" means the Commissioner of the Office of
Banks and Real Estate or his or her designee.
"Director" means the Director of Auction Regulation.
"Goods" means chattels, movable goods, merchandise, or
personal property or commodities of any form or type that may
be lawfully kept or offered for sale.
"Licensee" means any person licensed under this Act.
"Managing auctioneer" means any person licensed as an
auctioneer who manages and supervises licensees sponsored by
an auction firm or auctioneer.
"OBRE" means the Office of Banks and Real Estate.
"Person" means an individual, association, partnership,
corporation, limited liability company or the officers,
directors, or employees of the same.
"Pre-renewal period" means the 24 months prior to the
expiration date of a license issued under this Act.
"Sponsoring auctioneer" means the auctioneer or auction
firm who has issued a sponsor card to a licensed associate
auctioneer or auctioneer.
"Sponsor card" shall mean the temporary permit issued by
the sponsoring auctioneer certifying that the licensee named
thereon is employed by or associated with the sponsoring
auctioneer and the sponsoring auctioneer shall be responsible
for the actions of the sponsored licensee.
ARTICLE 10. LICENSING PROVISIONS
Section 10-1. Necessity of license; exemptions. (a) It
is unlawful for any person, corporation, limited liability
company, partnership, or other entity to conduct an auction,
provide an auction service, hold himself or herself out as an
auctioneer, or advertise his or her services as an auctioneer
in the State of Illinois without a license issued by OBRE
under this Act, except at:
(1) an auction conducted solely by or for a
not-for-profit organization for charitable purposes;
(2) an auction conducted by the owner of the
property, real or personal;
(3) an auction for the sale or lease of real
property conducted by a licensee under the Real Estate
License Act, or its successor Acts, in accordance with
the terms of that Act; and
(4) an auction conducted by a business registered
as a market agency under the federal Packers and
Stockyards Act (7 U.S.C. 181 et seq.) or under the
Livestock Auction Market Law.
(b) Nothing in this Act shall be construed to apply to a
vehicle dealer licensed by the Secretary of State of
Illinois, or to any employee of the licensee, who is a
resident of the State of Illinois, while the employee is
acting in the regular scope of his or her employment for the
licensee, or to sales by or through the licensee.
(c) Nothing in this Act shall be construed to prohibit a
person under the age of 18 from selling property under $250
in value while under the direct supervision of a licensed
auctioneer.
Section 10-5. Requirements for auctioneer license;
application. Every person who desires to obtain an
auctioneer license under this Act shall:
(1) apply to OBRE on forms provided by OBRE
accompanied by the required fee;
(2) be at least 18 years of age;
(3) have attained a high school diploma or
successfully completed an equivalent course of study
determined by an examination conducted by the Illinois
State Board of Education;
(4) personally take and pass a written examination
authorized by OBRE to prove competence, including but not
limited to general knowledge of Illinois and federal laws
pertaining to personal property contracts, auctions, real
property, relevant provisions of Article 4 of the Uniform
Commercial Code, ethics, and other topics relating to the
auction business; and
(5) submit to OBRE a properly completed 45-Day
Permit Sponsor Card on forms provided by OBRE.
Section 10-15. Requirements for associate auctioneer
license; application. Every person who desires to obtain an
associate auctioneer license under this Act shall:
(1) apply to OBRE on forms provided by OBRE
accompanied by the required fee;
(2) be at least 18 years of age;
(3) have attained a high school diploma or
successfully completed an equivalent course of study
determined by an examination conducted by the Illinois
State Board of Education;
(4) personally take and pass a written examination
authorized by OBRE to prove competence, including but not
limited to general knowledge of Illinois and federal laws
pertaining to personal property contracts, auctions, real
property, relevant provisions of Article 4 of the Uniform
Commercial Code, ethics, and other topics relating to the
auction business; and
(5) submit to OBRE a properly completed 45-day
permit sponsor card on forms provided by OBRE.
Section 10-20. Requirements for auction firm license;
application. Any corporation, limited liability company, or
partnership who desires to obtain an auction firm license
shall:
(1) apply to OBRE on forms provided by OBRE
accompanied by the required fee; and
(2) provide evidence to OBRE that the auction firm
has a properly licensed managing auctioneer.
Section 10-25. Practice prior to this Act. A person who
has actively and lawfully practiced as an auctioneer in the
State of Illinois prior to the effective date of this Act may
obtain an auctioneer or associate auctioneer license without
examination provided he or she:
(1) is a resident of the State of Illinois;
(2) applies to OBRE and pays the required fees
within 6 months after the effective date of this Act;
(3) verifies that he or she has practiced as an
auctioneer for a period of at least 2 years prior to the
effective date of this Act; and
(4) verifies that he or she has conducted a minimum
of 5 auctions of real or personal property within the 2
years prior to the effective date of this Act.
Section 10-30. Expiration, renewal, and continuing
education.
(a) A license issued under this Act shall expire every 2
years beginning on September 30, 2001. The OBRE shall issue
a renewal license without examination to an applicant upon
submission of a completed renewal application and payment of
the required fee.
(b) The OBRE shall develop a program for continuing
education as established in Article 25 of this Act. No
auctioneer or associate auctioneer shall receive a renewal
license without completing 12 hours of approved continuing
education course work during the pre-renewal period prior to
the expiration date of the license from continuing education
schools that are approved by the OBRE, as established in
Article 25 of this Act. The applicant shall verify on the
application that he or she:
(1) has complied with the continuing education
requirements; or
(2) is exempt from the continuing education
requirements because it is his or her first renewal and
he or she was initially licensed as an auctioneer or
associate auctioneer during the pre-renewal period prior
to the expiration date.
(c) A renewal applicant may request a waiver of the
continuing education requirements under subsection (d) of
this Section, but shall not practice as an auctioneer or
associate auctioneer until such waiver is granted and a
renewal license is issued.
(d) The Commissioner, with the recommendation of the
Advisory Board, may grant a renewal applicant a waiver from
all or part of the continuing education requirements for the
pre-renewal period if the applicant was not able to fulfill
the requirements as a result of the following conditions:
(1) Service in the armed forces of the United
States during a substantial part of the pre-renewal
period.
(2) Service as an elected State or federal
official.
(3) Service as a full-time employee of the OBRE.
(4) Other extreme circumstances as recommended by
the Advisory Board.
Section 10-35. Completed 45-day permit sponsor card;
termination by sponsoring auctioneer; inoperative status.
(a) No auctioneer or associate auctioneer shall conduct
an auction or provide an auction service without being
properly sponsored by a licensed auctioneer or auction firm.
(b) The sponsoring auctioneer or sponsoring auction firm
shall prepare upon forms provided by the OBRE and deliver to
each auctioneer or associate auctioneer employed by or
associated with the sponsoring auctioneer or sponsoring
auction firm a properly completed duplicate 45-day permit
sponsor card certifying that the person whose name appears
thereon is in fact employed by or associated with said
sponsoring auctioneer or sponsoring auction firm. The
sponsoring auctioneer or sponsoring auction firm shall send
the original 45-day permit sponsor card, along with a valid
terminated license or other authorization as provided by rule
and the appropriate fee, to the OBRE within 24 hours after
the issuance of the sponsor card. It is a violation of this
Act for any sponsoring auctioneer or sponsoring auction firm
to issue a sponsor card to any auctioneer, associate
auctioneer, or applicant, unless the auctioneer, associate
auctioneer, or applicant presents in hand a valid terminated
license or other authorization, as provided by rule.
(c) An auctioneer may be self-sponsored or may be
sponsored by another licensed auctioneer or auction firm.
(d) An associate auctioneer must be sponsored by a
licensed auctioneer or auction firm.
(e) When an auctioneer or associate auctioneer
terminates his or her employment or association with a
sponsoring auctioneer or sponsoring auction firm or the
employment or association is terminated by the sponsoring
auctioneer or sponsoring auction firm, the terminated
licensee shall obtain from that sponsoring auctioneer or
sponsoring auction firm his or her license endorsed by the
sponsoring auctioneer or sponsoring auction firm indicating
the termination. The terminating sponsoring auctioneer or
sponsoring auction firm shall send a copy of the terminated
license within 5 days after the termination to the OBRE or
shall notify the OBRE in writing of the termination and
explain why a copy of the terminated license was not
surrendered.
(f) The license of any auctioneer or associate
auctioneer whose association with a sponsoring auctioneer or
sponsoring auction firm has terminated shall automatically
become inoperative immediately upon such termination, unless
the terminated licensee accepts employment or becomes
associated with a new sponsoring auctioneer or sponsoring
auction firm pursuant to subsection (g) of this Section. An
inoperative licensee under this Act shall not conduct an
auction or provide auction services while the license is in
inoperative status.
(g) When a terminated or inoperative auctioneer or
associate auctioneer accepts employment or becomes associated
with a new sponsoring auctioneer or sponsoring auction firm,
the new sponsoring auctioneer or sponsoring auction firm
shall send to the OBRE a properly completed 45-day permit
sponsor card, the terminated license, and the appropriate
fee.
Section 10-40. Restoration.
(a) A licensee whose license has lapsed or expired shall
have 2 years from the expiration date to restore his or her
license without examination. The expired licensee shall make
application to the OBRE on forms provided by the OBRE,
including a properly completed 45-day permit sponsor card,
provide evidence of successful completion of 12 hours of
approved continuing education during the period of time the
license had lapsed, and pay all lapsed fees and penalties as
established by administrative rule.
(b) Notwithstanding any other provisions of this Act to
the contrary, any licensee whose license under this Act has
expired is eligible to restore such license without paying
any lapsed fees and penalties provided that the license
expired while the licensee was:
(1) on active duty with the United States Army,
United State Marine Corps, United States Navy, United
States Air Force, United States Coast Guard, the State
Militia called into service or training;
(2) engaged in training or education under the
supervision of the United States prior to induction into
military service; or
(3) serving as an employee of the OBRE, while the
employee was required to surrender his or her license due
to a possible conflict of interest.
A licensee shall be eligible to restore a license under
the provisions of this subsection for a period of 2 years
following the termination of the service, education, or
training by providing a properly completed application and
45-day permit sponsor card, provided that the termination
was by other than dishonorable discharge and provided that
the licensee furnishes the OBRE with an affidavit specifying
that the licensee has been so engaged.
(c) At any time after the suspension, revocation,
placement on probationary status, or other disciplinary
action taken under this Act with reference to any license,
the OBRE may restore the license to the licensee without
examination upon the order of the Commissioner, if the
licensee submits a properly completed application and 45-day
permit sponsor card, pays appropriate fees, and otherwise
complies with the conditions of the order.
Section 10-45. Nonresident auctioneer reciprocity.
(a) A person holding a license to engage in auctions
issued to him or her by the proper authority of a state,
territory, or possession of the United States of America or
the District of Columbia that has licensing requirements
equal to or substantially equivalent to the requirements of
this State and that otherwise meets the requirements of this
Act may obtain a license under this Act without examination,
provided:
(1) that the OBRE has entered into a valid
reciprocal agreement with the proper authority of the
state, territory, or possession of the United States of
America or the District of Columbia from which the
nonresident applicant has a valid license;
(2) that the applicant provides the OBRE with a
certificate of good standing from the applicant's
resident state;
(3) that the applicant completes and submits an
application as provided by the OBRE; and
(4) that the applicant pays all applicable fees
required under this Act.
(b) A nonresident applicant shall file an irrevocable
consent with the OBRE that actions may be commenced against
the applicant or nonresident licensee in a court of competent
jurisdiction in this State by the service of summons,
process, or other pleading authorized by the law upon the
Commissioner. The consent shall stipulate and agree that
service of the process, summons, or pleading upon the
Commissioner shall be taken and held in all courts to be
valid and binding as if actual service had been made upon the
applicant in Illinois. If a summons, process, or other
pleading is served upon the Commissioner, it shall be by
duplicate copies, one of which shall be retained by the OBRE
and the other immediately forwarded by certified or
registered mail to the last known business address of the
applicant or nonresident licensee against whom the summons,
process, or other pleading may be directed.
Section 10-50. Fees. The OBRE shall provide by
administrative rule for fees to be paid by applicants,
licensees, and schools to cover the reasonable costs of the
OBRE in administering and enforcing the provisions of this
Act. The OBRE shall provide by administrative rule for fees
to be collected from licensees and applicants to cover the
statutory requirements for funding the Auctioneer Recovery
Fund. The OBRE may also provide by administrative rule for
general fees to cover the reasonable expenses of carrying out
other functions and responsibilities under this Act.
ARTICLE 15. BUSINESS PRACTICES PROVISIONS
Section 15-5. Representations. An auctioneer, associate
auctioneer, or auction firm or the sponsored licensees,
agents, or employees of an auctioneer or auction firm,
conducting an auction or providing an auction service shall
not:
(1) misrepresent a fact material to a purchaser's
decision to buy at or by auction;
(2) predict specific or immediate increases in the
value of any item offered for sale at auction; or
(3) materially misrepresent the qualities or
characteristics of any item offered for sale at auction.
Section 15-10. Auction contract. Any auctioneer,
associate auctioneer, or auction firm shall not conduct an
auction or provide an auction service, unless the auctioneer,
associate auctioneer, or auction firm enters into a written
or oral auction contract with the seller of any property at
auction prior to the date of the auction. The agreement
shall be signed by the auctioneer, associate auctioneer, or
auction firm conducting an auction or providing an auction
service and the seller or sellers, or the legal agent of the
seller or sellers of the property to be offered at or by
auction, and shall include, but not be limited to the
following disclosures:
(1) Licensees shall disclose:
(A) the name, license number, business
address, and phone number of the auctioneer,
associate auctioneer, or auction firm conducting an
auction or providing an auction service;
(B) the fee to be paid to the auctioneer,
associate auctioneer, or auction firm for conducting
an auction or providing an auction service; and
(C) an estimate of the advertising costs that
shall be paid by the seller or sellers of property
at auction and a disclosure that, if the actual
advertising costs exceeds 120% of the estimated
advertising cost, the auctioneer, associate
auctioneer, or auction firm shall pay the
advertising costs that exceed 120% of the estimated
advertising costs or shall have the seller or
sellers agree in writing to pay for the actual
advertising costs in excess of 120% of the estimated
advertising costs.
(2) Sellers shall disclose:
(A) the name, address, and phone number of the
seller or sellers or the legal agent of the seller
or sellers of property to be sold at auction; and
(B) any mortgage, lien, or encumbrance of
which the seller has knowledge on any property or
goods to be sold or leased at or by auction.
Section 15-15. Supervisory duties. The sponsoring
auctioneer, auction firm, and managing auctioneer shall have
the duty and responsibility to supervise, manage, and control
any sponsored licensee, agent, or employee while conducting
an auction or providing an auction service. Any violation of
this Act by a sponsored licensee, agent, or employee of a
sponsoring auctioneer, auction firm, or managing auctioneer
shall be deemed to be a violation by the sponsoring
auctioneer, auction firm, or managing auctioneer as well as
by the sponsored licensee, agent, or employee.
Section 15-20. Associate auctioneer. An associate
auctioneer shall not conduct an auction or provide an auction
service without the proper supervision of a licensed
auctioneer or receive compensation for conducting an auction
other than from a licensed auctioneer or auction firm. An
associate auctioneer shall not work for or receive
compensation from another auctioneer or an auction firm other
than his or her sponsoring auctioneer or sponsoring auction
firm without the written consent of his or her sponsoring
auctioneer or sponsoring auction firm. The sponsoring
auctioneer or sponsoring auction firm and managing auctioneer
shall be responsible for the actions of any sponsored
associate auctioneer while conducting an auction or providing
an auction service.
Section 15-25. Auction firm. No corporation, limited
liability company, or partnership shall be licensed without
being managed by a licensed auctioneer. The managing
auctioneer of any auction firm shall be responsible for the
actions of all licensed and unlicensed employees, agents, and
representatives of said auction firm while the firm is
conducting an auction or providing an auction service.
ARTICLE 20. DISCIPLINARY PROVISIONS
Section 20-5. Unlicensed practice; civil penalty.
(a) Any person who practices, offers to practice,
attempts to practice, or holds oneself out to practice as an
auctioneer, an associate auctioneer, an auction firm, or any
other licensee under this Act without being licensed under
this Act shall, in addition to any other penalty provided by
law, pay a civil fine to OBRE in an amount not to exceed
$10,000 for each offense as determined by the OBRE. The
civil fine shall be assessed by the OBRE after a hearing is
held in accordance with the provisions set forth in this Act
regarding a hearing for the discipline of a license.
(b) The OBRE has the authority and power to investigate
any and all unlicensed activity pursuant to this Act.
(c) The civil fine shall be paid within 60 days after
the effective date of the order imposing the civil fine. The
order shall constitute a judgement and may be filed and
execution had thereon in the same manner from any court of
record.
(d) Conducting an auction or providing an auction
service in Illinois without holding a valid and current
license under this Act is declared to be adverse to the
public welfare, to constitute a public nuisance, and to cause
irreparable harm to the public welfare. The Commissioner,
the Attorney General, the State's Attorney of any county in
the State, or any other person may maintain an action in the
name of the People of the State of Illinois and may apply for
injunctive relief in any circuit court to enjoin the person
or entity from engaging in such practice.
Upon the filing of a verified petition in a circuit
court, the court, if satisfied by affidavit or otherwise that
the person or entity has been engaged in the practice of
auctioning without a valid and current license, may enter a
temporary restraining order without notice or bond enjoining
the defendant from further practice. Only the showing of
non-licensure, by affidavit or otherwise, is necessary in
order for a temporary injunction to be issued. A copy of the
verified complaint shall be served upon the defendant and the
proceedings shall thereafter be conducted as in other civil
cases except as modified by this Section. If it is
established that the defendant has been or is engaged in
unlawful practice, the court may enter an order or judgment
perpetually enjoining the defendant from further practice.
In all proceedings hereunder, the court, in its discretion,
may apportion the costs among the parties interested in the
action, including cost of filing the complaint, service of
process, witness fees and expenses, court reporter charges,
and reasonable attorneys' fees. In case of violation of any
injunctive order entered under the provisions of this
Section, the court may summarily try and punish the offender
for contempt of court. These injunction proceedings shall be
in addition to, and not in lieu of, all penalties and other
remedies provided in this Act.
Section 20-10. Violations. The commission of a single
act prohibited by this Act or prohibited by the rules
promulgated under this Act or a violation of a disciplinary
order issued under this Act constitutes a violation of this
Act.
Section 20-15. Disciplinary actions; grounds. The OBRE
may refuse to issue or renew a license, may place on
probation or administrative supervision, suspend, or revoke
any license or may reprimand or otherwise discipline or
impose a civil fine not to exceed $10,000 upon any licensee
hereunder for any one or any combination of the following
causes:
(1) False or fraudulent representation or material
misstatement in furnishing information to the OBRE in
obtaining or seeking to obtain a license.
(2) Violation of any provision of this Act or the
rules promulgated pursuant to this Act.
(3) Conviction of any crime, an essential element
of which is dishonesty or fraud, or larceny,
embezzlement, or obtaining money, property, or credit by
false pretenses or by means of a confidence game,
conviction in this or another state of a crime that is a
felony under the laws of this State, or conviction of a
felony in a federal court.
(4) Being adjudged to be a person under legal
disability or subject to involuntary admission or to meet
the standard for judicial admission as provided in the
Mental Health and Developmental Disabilities Code.
(5) Discipline of a licensee by another state, the
District of Columbia, a territory of the United States, a
foreign nation, a governmental agency, or any other
entity authorized to impose discipline if at least one of
the grounds for that discipline is the same as or the
equivalent to one of the grounds for discipline set forth
in this Act or for failing to report to the OBRE, within
30 days, any adverse final action taken against the
licensee by any other licensing jurisdiction, government
agency, law enforcement agency, or court, or liability
for conduct that would constitute grounds for action as
set forth in this Act.
(6) Engaging in the practice of auctioneering,
conducting an auction, or providing an auction service
without a license or after the license was expired,
revoked, suspended, or terminated or while the license
was inoperative.
(7) Attempting to subvert or cheat on the
auctioneer exam or any continuing education exam, or
aiding or abetting another to do the same.
(8) Directly or indirectly giving to or receiving
from a person, firm, corporation, partnership, or
association a fee, commission, rebate, or other form of
compensation for professional service not actually or
personally rendered.
(9) Making any substantial misrepresentation or
untruthful advertising.
(10) Making any false promises of a character
likely to influence, persuade, or induce.
(11) Pursuing a continued and flagrant course of
misrepresentation or the making of false promises through
a licensee, agent, employee, advertising, or otherwise.
(12) Any misleading or untruthful advertising, or
using any trade name or insignia of membership in any
auctioneer association or organization of which the
licensee is not a member.
(13) Commingling funds of others with his or her
own funds or failing to keep the funds of others in an
escrow or trustee account.
(14) Failure to account for, remit, or return any
moneys, property, or documents coming into his or her
possession that belong to others, acquired through the
practice of auctioneering, conducting an auction, or
providing an auction service within 30 days of the
written request from the owner of said moneys, property,
or documents.
(15) Failure to maintain and deposit into a special
account, separate and apart from any personal or other
business accounts, all moneys belonging to others
entrusted to a licensee while acting as an auctioneer,
associate auctioneer, auction firm, or as a temporary
custodian of the funds of others.
(16) Failure to make available to OBRE personnel
during normal business hours all escrow and trustee
records and related documents maintained in connection
with the practice of auctioneering, conducting an
auction, or providing an auction service within 24 hours
after a request from OBRE personnel.
(17) Making or filing false records or reports in
his or her practice, including but not limited to false
records or reports filed with State agencies.
(18) Failing to voluntarily furnish copies of all
written instruments prepared by the auctioneer and signed
by all parties to all parties at the time of execution.
(19) Failing to provide information within 30 days
in response to a written request made by the OBRE.
(20) Engaging in any act that constitutes a
violation of Section 2-102, 3-103, or 3-105 of the
Illinois Human Rights Act.
(21) Causing a payment from the Auction Recovery
Fund.
(22) Engaging in dishonorable, unethical, or
unprofessional conduct of a character likely to deceive,
defraud, or harm the public.
(23) Offering or advertising real estate for sale
or lease at auction without a valid broker or
salesperson's license under the Real Estate License Act
of 1983, or any successor Act, unless exempt from
licensure under the terms of the Real Estate License Act
of 1983, or any successor Act.
Section 20-20. Termination without hearing for failure
to pay taxes, child support, or a student loan. OBRE may
terminate or otherwise discipline any license issued under
this Act without hearing if the appropriate administering
agency provides adequate information and proof that the
licensee has:
(1) failed to file a return, to pay the tax,
penalty, or interest shown in a filed return, or to pay
any final assessment of tax, penalty, or interest, as
required by any tax act administered by the Illinois
Department of Revenue until the requirements of the tax
act are satisfied;
(2) failed to pay any court ordered child support
as determined by a court order or by referral from the
Illinois Department of Public Aid; or
(3) failed to repay any student loan or assistance
as determined by the Illinois Student Assistance
Commission. If a license is terminated or otherwise
disciplined pursuant to this Section, the licensee may
request a hearing as provided by this Act within 30 days
of notice of termination or discipline.
Section 20-25. Investigation. OBRE may investigate the
actions or qualifications of any person or persons holding or
claiming to hold a license under this Act, who shall
hereinafter be called the respondent.
Section 20-30. Consent orders. Notwithstanding any
provisions concerning the conduct of hearings and
recommendations for disciplinary actions, OBRE has the
authority to negotiate agreements with licensees and
applicants resulting in disciplinary consent orders. The
consent orders may provide for any form of discipline
provided for in this Act. The consent orders shall provide
that they were not entered into as a result of any coercion
by OBRE. Any consent order shall be accepted by or rejected
by the Commissioner in a timely manner.
Section 20-35. Subpoenas; attendance of witnesses;
oaths.
(a) OBRE shall have the power to issue subpoenas ad
testificandum (subpoena for documents) and to bring before it
any persons and to take testimony, either orally or by
deposition or both, with the same fees and mileage and in the
same manner as prescribed in civil cases in the courts of
this State. OBRE shall have the power to issue subpoenas
duces tecum and to bring before it any documents, papers,
files, books, and records with the same costs and in the same
manner as prescribed in civil cases in the courts of this
State.
(b) Any circuit court may, upon application of OBRE or
its designee or of the applicant, licensee, or person holding
a certificate of licensure against whom proceedings under
this Act are pending, enter an order compelling the
enforcement of any OBRE subpoena issued in connection with
any hearing or investigation.
(c) The Commissioner or his or her designee or the Board
shall have power to administer oaths to witnesses at any
hearing that OBRE is authorized to conduct and any other
oaths authorized in any Act administered by OBRE.
Section 20-40. Hearings; record of hearings.
(a) OBRE shall have the authority to conduct hearings
before the Advisory Board on proceedings to revoke, suspend,
place on probation or administrative review, reprimand, or
refuse to issue or renew any license under this Act or to
impose a civil penalty not to exceed $10,000 upon any
licensee under this Act.
(b) OBRE, at its expense, shall preserve a record of all
proceedings at the formal hearing of any case involving the
discipline of any license under this Act. The notice of
hearing, complaint and all other documents in the nature of
pleadings and written motions filed in the proceedings, the
transcript of testimony, the report of the Board, and the
order of OBRE shall be the record of proceeding. At all
hearings or prehearing conference, OBRE and the respondent
shall be entitled to have a court reporter in attendance for
purposes of transcribing the proceeding or prehearing
conference.
Section 20-45. Notice. OBRE shall (i) notify the
respondent in writing at least 30 days prior to the date set
for the hearing of any charges made and the time and place
for the hearing of the charges to be heard under oath and
(ii) inform the respondent that, upon failure to file an
answer before the date originally set for the hearing,
default will be taken against the respondent and the
respondent's license may be suspended, revoked, or otherwise
disciplined as OBRE may deem proper before taking any
disciplinary action with regard to any license under this
Act.
If the respondent fails to file an answer after receiving
notice, the respondent's license may, in the discretion of
OBRE, be revoked, suspended, or otherwise disciplined as
deemed proper, without a hearing, if the act or acts charged
constitute sufficient grounds for such action under this Act.
At the time and place fixed in the notice, OBRE shall
proceed to hearing of the charges and both the respondent and
the complainant shall be accorded ample opportunity to
present in person or by counsel such statements, testimony,
evidence, and argument as may be pertinent to the charges or
any defense thereto.
Section 20-50. Board's findings of fact, conclusions of
law, and recommendation to the Commissioner. At the
conclusion of the hearing, the Advisory Board shall present
to the Commissioner a written report of its findings of
facts, conclusions of law, and recommendations regarding
discipline or a fine. The report shall contain a finding
whether or not the accused person violated this Act or failed
to comply with the conditions required in this Act. The
Advisory Board shall specify the nature of the violation or
failure to comply and shall make its recommendations to the
Commissioner.
If the Commissioner disagrees in any regard with the
report of the Advisory Board, the Commissioner may issue an
order in contravention of the report. The Commissioner shall
provide a written report to the Advisory Board on any
deviation and shall specify with particularity the reasons
for that action in the final order.
Section 20-55. Motion for rehearing; rehearing. In any
hearing involving the discipline of a license, a copy of the
Advisory Board's report shall be served upon the respondent
by OBRE, either personally or as provided in this Act for the
service of the notice of hearing. Within 20 calendar days
after the service, the respondent may present to OBRE a
motion in writing for a rehearing, which shall specify the
particular grounds for rehearing.
If no motion for rehearing is filed, then upon the
expiration of the time specified for filing a motion, or if a
motion for rehearing is denied, then upon denial, the
Commissioner may enter an order in accordance with the
recommendations of the Advisory Board, except as provided for
in this Act. If the respondent orders a transcript of the
record from the reporting service and pays for it within the
time for filing a motion for rehearing, the 20 calendar day
period within which a motion for rehearing may be filed shall
commence upon the delivery of the transcript to the
respondent.
Whenever the Commissioner is not satisfied that
substantial justice has been done in the hearing or in the
Advisory Board's report, the Commissioner may order a
rehearing by the same.
Section 20-60. Order; certified copy. An order or a
certified copy of an order, over the seal of OBRE and
purporting to be signed by the Commissioner or his or her
designee, shall be prima facie proof that:
(1) the signature is the genuine signature of the
Commissioner or his or her designee;
(2) the Commissioner is duly appointed and
qualified; and
(3) the Advisory Board is duly appointed and
qualified.
Section 20-65. Restoration of license. At any time
after the suspension or revocation of any license, OBRE may
restore the license to the accused person upon the written
recommendation of the Advisory Board, unless after an
investigation and a hearing the Advisory Board determines
that restoration is not in the public interest.
Section 20-70. Surrender of license. Upon the
revocation or suspension of any license the licensee shall
immediately surrender the license to OBRE. If the licensee
fails to do so, OBRE shall have the right to seize the
license.
Section 20-75. Administrative Review Law. All final
administrative decisions of OBRE are subject to judicial
review under the Administrative Review Law and its rules.
The term "administrative decision" is defined as in Section
3-101 of the Code of Civil Procedure.
Proceedings for judicial review shall be commenced in the
circuit court of the county in which the party applying for
review resides, but if the party is not a resident of this
State, the venue shall be in Cook or Sangamon County.
Pending final decision on the review, the acts, orders,
sanctions, and rulings of OBRE regarding any license shall
remain in full force and effect, unless modified or suspended
by a court order pending final judicial decision. OBRE shall
not be required to certify any record to the court, file any
answer in court, or otherwise appear in any court in a
judicial review proceeding, unless there is filed in the
court, with the complaint, a receipt from OBRE acknowledging
payment of the costs of furnishing and certifying the record.
Failure on the part of the plaintiff to file a receipt in
court shall be grounds for dismissal of the action.
Section 20-80. Summary suspension. The Commissioner may
temporarily suspend any license pursuant to this Act, without
hearing, simultaneously with the institution of proceedings
for a hearing provided for in this Act, if the Commissioner
finds that the evidence indicates that the public interest,
safety, or welfare requires emergency action. In the event
that the Commissioner temporarily suspends any license
without a hearing, a hearing shall be held within 30 calendar
days after the suspension has begun. The suspended licensee
may seek a continuance of the hearing during which the
suspension shall remain in effect. The proceeding shall be
concluded without appreciable delay.
Section 20-85. Action for compensation; allegation and
proof of license. No action or counterclaim shall be
maintained by any person in any court in this State with
respect to any agreement, contract, or services for which a
license is required by this Act or to recover the agreed
price or any compensation under any such agreement or for
such services for which a license is required by this Act
without alleging and proving that the person had a valid
license at the time of making such agreement or doing such
work.
Section 20-90. Cease and desist orders. OBRE may issue
cease and desist orders to persons who engage in activities
prohibited by this Act. Any person in violation of a cease
and desist order obtained by OBRE is subject to all of the
remedies provided by law.
Section 20-95. Returned checks; fine. A person who
delivers a check or other payment to OBRE that is returned to
OBRE unpaid by the financial institution upon which it is
drawn shall pay to OBRE, in addition to the amount already
owed to OBRE, a fee of $50. If the check or other payment
was for issuance of a license under this Act and that person
conducts an auction or provides an auction service, that
person may be subject to discipline for unlicensed practice.
OBRE shall notify the person that his or her check has been
returned and that the person shall pay to OBRE by certified
check or money order the amount of the returned check plus
the $50 fee within 30 calendar days after the date of the
notification. If, after the expiration of 30 calendar days
of the notification, the person has failed to submit the
necessary remittance, OBRE shall automatically terminate the
license or deny the application without a hearing. If, after
termination or denial, the person seeks a license, he or she
shall petition OBRE for restoration and he or she may be
subject to additional discipline or fines. The Commissioner
may waive the fines due under this Section in individual
cases where the Commissioner finds that the fines would be
unreasonable or unnecessarily burdensome.
ARTICLE 25. SCHOOL AND CONTINUING EDUCATION PROVISIONS
Section 25-5. Continuing education.
(a) For each pre-renewal period, each auctioneer and
associate auctioneer who makes application to renew his or
her license must successfully complete auction continuing
education courses approved by the Advisory Board and OBRE
from a school approved by the Advisory Board and OBRE.
(b) Each renewal applicant shall successfully complete
12 hours of continuing education, of which at least 6 hours
shall be mandatory core subjects in the following categories:
(1) Illinois statutes and rules governing
auctioneering;
(2) federal statutes and regulations governing
auctioneering;
(3) auctioneering ethics;
(4) escrow and trust accounts;
(5) contracts; and
(6) other subject matter approved by the Board and
established by rule.
(c) Each renewal applicant may satisfy the remaining 6
hours of continuing education from the mandatory core
subjects from the categories as provided in subsection (b) or
successfully complete an additional 6 hours of continuing
education in the following elective subject categories:
(1) agency;
(2) business courses related to auctioneering;
(3) real estate related courses;
(4) auction management;
(5) bid calling;
(6) public speaking;
(7) advertising;
(8) specialty auction courses; or
(9) other subject matter approved by the Board and
established by rule.
(d) Every licensee shall personally take and pass an
examination after each continuing education course, as
provided by rule. For the purposes of this Section, 70%
shall be deemed a passing score.
Section 25-10. School license; requirements;
application.
(a) Only schools approved by the Board and OBRE may
provide approved continuing education.
(b) Schools seeking to be approved as continuing
education schools shall provide satisfactory proof of the
following:
(1) a sound financial base for establishing,
promoting, and delivering the necessary courses;
(2) a sufficient number of qualified instructors;
(3) adequate support personnel to assist with
administrative matters and technical assistance;
(4) a written policy dealing with procedures for
the management of grievances and fee refunds;
(5) a qualified school administrator, who is
responsible for the administration of the school and the
actions of instructors; and
(6) any other requirements as provided by rule.
(c) All schools shall provide each successful course
participants with a certificate of completion signed by the
school administrator containing the following information:
(1) the name, address, and license number of the
school;
(2) the name, address, social security number, and
license number of the successful participant;
(3) the name of the course, which describes the
subject matter thereof;
(4) the number of approved credit hours and whether
the course is from the mandatory or elective category;
(5) the date the course was completed; and
(6) other information as required and provided by
rule.
(d) All schools shall provide to OBRE a monthly roster
of all successful participants containing:
(1) the name, address, and license number of the
school;
(2) the name, address, social security, and license
number of the successful participants;
(3) the name of the course, which describes the
subject matter thereof, and the license number of the
course;
(4) the number of approved credit hours and whether
the course is from the mandatory or elective category;
(5) the date the course was completed; and
(6) other information as required and in a format
as provided by rule.
(e) All schools shall make application to OBRE on forms
provided by OBRE and pay the appropriate fee for a school
license. A school license shall expire on December 31 of
each odd numbered year. A school shall make application to
the OBRE on forms provided by OBRE and pay the appropriate
fee as provided by rule for a renewal license.
(f) A school license may be disciplined as provided by
rule.
Section 25-15. Course approval; license. A school may
submit courses for approval by the Advisory Board and OBRE.
The criteria and information for course approval shall be
established by rule. For each course that is approved as a
continuing education course, OBRE shall issue a license to
the school for the course. Approved course licenses shall
expire on December 31 of odd number years along with the
school license.
ARTICLE 30. ADMINISTRATIVE PROVISIONS
Section 30-5. OBRE; powers and duties. The OBRE shall
exercise the powers and duties prescribed by the Civil
Administrative Code of Illinois for the administration of
licensing acts and shall exercise such other powers and
duties as prescribed by this Act. The OBRE may contract with
third parties for services necessary for the proper
administration of this Act.
Section 30-10. Rules. OBRE, after notifying and
considering the recommendations of the Advisory Board, if
any, shall adopt any rules that may be necessary for the
administration, implementation and enforcement of this Act.
Section 30-15. Auction Regulation Administration Fund.
A special fund to be known as the Auction Regulation
Administration Fund is created in the State Treasury. All
fees received by the OBRE under this Act shall be deposited
into the Auction Regulation Administration Fund. Subject to
appropriation, the moneys deposited into the Auction
Regulation Administration Fund shall be used by the OBRE for
the administration of this Act. Moneys in the Auction
Regulation Administration Fund may be invested and reinvested
in the same manner as authorized for pension funds in Article
14 of the Illinois Pension Code. All earnings, interest, and
dividends received from investment of funds in the Auction
Regulation Administration Fund shall be deposited into the
Auction Regulation Administration Fund and shall be used for
the same purposes as other moneys deposited in the Auction
Regulation Administration Fund.
This fund shall be created on July 1, 1999. The State
Treasurer shall cause a transfer of $300,000 to the Auction
Regulation Administration Fund from the Real Estate License
Administration Fund on August 1, 1999. The State Treasurer
shall cause a transfer of $200,000 on August 1, 2000 and a
transfer of $100,000 on January 1, 2002 from the Auction
Regulation Administration Fund to the Real Estate License
Administration Fund, or if there is a sufficient fund balance
in the Auction Regulation Administration Fund to properly
administer this Act, the OBRE may recommend to the State
Treasurer to cause a transfer from the Auction Regulation
Administration Fund to the Real Estate License Administration
Fund on a date and in an amount which is accelerated, but not
less than set forth in this Section. In addition to the
license fees required under this Act, each initial applicant
for licensure under this Act shall pay to the OBRE an
additional $100 for deposit into the Auction Regulation
Administration Fund for a period of 2 years or until such
time the original transfer amount to the Auction Regulation
Administration Fund from the Real Estate License
Administration Fund is repaid.
Upon completion of any audit of the OBRE as prescribed by
the Illinois State Auditing Act, which includes an audit of
the Auction Regulation Administration Fund, the OBRE shall
make the audit open to inspection by any interested party.
Section 30-20. Auction Recovery Fund. A special fund to
be known as the Auction Recovery Fund is created in the State
Treasury. The moneys in the Auction Recovery Fund shall be
used by the OBRE exclusively for carrying out the purposes
established pursuant to the provisions of Section 30-35 of
this Act.
The sums received by the OBRE pursuant to the provisions
of Sections 20-5 through Sections 20-20 of this Act shall be
deposited into the State Treasury and held in the Auction
Recovery Fund. In addition to the license fees required
under this Act, each initial and renewal applicant shall pay
to the OBRE an additional $25 for deposit into the Auction
Recovery Fund for a period of 2 years after the effective
date of this Act. After such time the Auction Regulation
Administration Fund has totally repaid the Real Estate
License Administration Fund, the State Treasurer shall cause
a transfer of $50,000 from the Auction Regulation
Administration Fund to the Auction Recovery Fund annually on
January 1 so as to sustain a minimum balance of $400,000 in
the Auction Recovery Fund. If the fund balance in the
Auction Recovery Fund on January 1 of any year after 2002 is
less than $100,000, in addition to the renewal license fee
required under this Act, each renewal applicant shall pay the
OBRE an additional $25 fee for deposit into the Auction
Recovery Fund.
The funds held in the Auction Recovery Fund may be
invested and reinvested in the same manner as funds in the
Auction Regulation Administration Fund. All earnings
received from investment may be deposited into the Auction
Recovery Fund and may be used for the same purposes as other
moneys deposited into the Auction Recovery Fund or may be
deposited into the Auction Education Fund as provided in
Section 30-25 of this Act and as established by rule.
Section 30-25. Auction Education Fund. A special fund
to be known as the Auction Education Fund is created in the
State Treasury. The Auction Education Fund shall be
administered by OBRE. Subject to appropriation, moneys
deposited into the Auction Education Fund may be used for the
advancement of education in the auction industry, as
established by rule. The moneys deposited in the Auction
Education Fund may be invested and reinvested in the same
manner as funds in the Auction Regulation Administration
Fund. All earnings received from investment shall be
deposited into the Auction Education Fund and may be used for
the same purposes as other moneys deposited into the Auction
Education Fund.
Section 30-30. Auction Advisory Board.
(a) There is hereby created the Auction Advisory Board.
The Advisory Board shall consist of 7 members and shall be
appointed by the Commissioner. In making the appointments,
the Commissioner shall give due consideration to the
recommendations by members and organizations of the industry,
including but not limited to the Illinois State Auctioneers
Association. Four members of the Advisory Board shall be
licensed auctioneers, except that for the initial
appointments, these members may be persons without a license,
but who have been auctioneers for at least 5 years preceding
their appointment to the Advisory Board. One member shall be
a public member who represents the interests of consumers and
who is not licensed under this Act or the spouse of a person
licensed under this Act or who has any responsibility for
management or formation of policy of or any financial
interest in the auctioneering profession or any other
connection with the profession. One member shall be actively
engaged in the real estate industry and licensed as a broker
or salesperson. One member shall be the Director of Auction
Regulation, ex-officio, and shall serve as the Chairperson of
the Advisory Board.
(b) Members shall be appointed for a term of 4 years,
except that of the initial appointments, 3 members shall be
appointed to serve a term of 3 years and 4 members shall be
appointed to serve a term of 4 years, including the Director.
The Commissioner shall fill a vacancy for the remainder of
any unexpired term. Each member shall serve on the Advisory
Board until his or her successor is appointed and qualified.
No person shall be appointed to serve more than 2 terms,
including the unexpired portion of a term due to vacancy. To
the extent practicable, the Commissioner shall appoint
members to insure that the various geographic regions of the
State are properly represented on the Advisory Board.
(c) A majority of the Advisory Board members currently
appointed shall constitute a quorum. A vacancy in the
membership of the Advisory Board shall not impair the right
of a quorum to exercise all of the rights and perform all the
duties of the Board.
(d) Each member of the Advisory Board shall receive a
per diem stipend in an amount to be determined by the
Commissioner. Each member shall be paid his or her necessary
expenses while engaged in the performance of his or her
duties.
(e) Members of the Advisory Board shall be immune from
suit in an action based upon any disciplinary proceedings or
other acts performed in good faith as members of the Advisory
Board.
(f) The Advisory Board shall meet monthly or as convened
by the Chairperson.
(g) The Advisory Board shall advise the OBRE on matters
of licensing and education and make recommendations to the
OBRE on those matters and shall hear and make recommendations
to the Commissioner on disciplinary matters that require a
formal evidentiary hearing.
(h) The Commissioner shall give due consideration to all
recommendations of the Advisory Board.
Section 30-35. Director of Auction Regulation. The
Commissioner shall appoint a Director of Auction Regulation
in the OBRE for a term of 4 years. The Director shall hold a
valid auctioneer license under this Act, which shall be
surrendered to OBRE during his or her appointment, except for
the initial appointment. During the initial appointment, the
Director may be a person without a license who has been an
auctioneer for at least 5 years and who has sufficient
experience and knowledge in public administration. The
Director of Auction Regulation shall report to the
Commissioner and shall do the following:
(1) act as Chairperson of the Advisory Board,
ex-officio;
(2) be the direct liaison between OBRE, the
profession; and the auction organizations and
associations;
(3) prepare and circulate to licensees such
educational and informational material as the OBRE deems
necessary for providing guidance or assistance to
licensees;
(4) appoint any necessary committees to assist in
the performance of the functions and duties of the OBRE
under this Act; and
(5) subject to the administrative approval of the
Commissioner, supervise the Auction Regulation division
of OBRE.
In appointing the Director of Auction Regulation, the
Commissioner shall give due consideration to recommendations
by members and organizations of the auction industry.
Section 30-40. Auction Recovery Fund; recovery; actions;
procedures. The OBRE shall maintain an Auction Recovery Fund
from which any person aggrieved by an act, representation,
transaction, or the conduct of a duly licensed auctioneer,
associate auctioneer or auction firm that constitutes a
violation of this Act or the regulations promulgated pursuant
thereto or that constitutes embezzlement of money or
property or results in money or property being unlawfully
obtained from any person by false pretenses, artifice,
trickery, or forgery or by reason of any fraud,
misrepresentation, discrimination or deceit by or on the part
of any licensee or the unlicensed employee of any auctioneer,
associate auctioneer, or auction firm and that results in a
loss of actual cash money as opposed to losses in market
value, may recover. The aggrieved person may recover, by
order of the circuit court of the county where the violation
occurred, an amount of not more than $10,000 from the fund
for damages sustained by the act, representation,
transaction, or conduct, together with the costs of suit and
attorneys' fees incurred in connection therewith of not to
exceed 15% of the amount of the recovery ordered paid from
the Fund. However, no licensed auctioneer, associate
auctioneer, or auction firm may recover from the Fund, unless
the court finds that the person suffered a loss resulting
from intentional misconduct. The court order shall not
include interest on the judgment.
The maximum liability against the Fund arising out of any
one act by any auctioneer, associate auctioneer, or auction
firm shall be $50,000, and the judgment order shall spread
the award equitably among all aggrieved persons.
Section 30-45. Auction Recovery Fund; collection.
(a) No action for a judgment that subsequently results
in an order for collection from the Auction Recovery Fund
shall be started later than 2 years after the date on which
the aggrieved person knew or, through the use of reasonable
diligence, should have known of the acts or omissions giving
rise to a right of recovery from the Auction Recovery Fund.
(b) When any aggrieved person commences action for a
judgment that may result in collection from the Auction
Recovery Fund, the aggrieved person must name as parties to
that action any and all individual auctioneers, associate
auctioneers, auction firms, or their employees or agents who
allegedly committed or are responsible for acts or omissions
giving rise to a right of recovery from the Auction Recovery
Fund. Failure to name these individuals as parties shall
preclude recovery from the Auction Recovery Fund of any
portion of the judgment received in the action.
(c) When any aggrieved person commences action for a
judgment that may result in collection from the Auction
Recovery Fund, the aggrieved person must notify OBRE in
writing to this effect at the time of the commencement of the
action. Failure to so notify OBRE shall preclude recovery
from the Auction Recovery Fund of any portion of the judgment
received in the action. After receiving notice of the
commencement of such an action, OBRE, upon timely
application, shall be permitted to intervene as a party to
that action.
(d) When an aggrieved party commences action for a
judgment that may result in collection from the Auction
Recovery Fund and the court in which the action is commenced
enters judgment by default against the defendant and in favor
of the aggrieved party, the court shall, upon motion of OBRE,
set aside that judgment by default. After a judgment by
default has been set aside, OBRE shall appear as a party to
that action and thereafter the court shall require proof of
the allegations in the pleading upon which relief is sought.
(e) The aggrieved person shall give written notice to
OBRE within 30 days after the entry of any judgment that may
result in collection from the Auction Recovery Fund. That
aggrieved person shall provide OBRE 20 days written notice of
all supplementary proceeding so as to allow OBRE to
participate in all efforts to collect on the judgment.
(f) When any aggrieved person recovers a valid judgment
in any court of competent jurisdiction against any licensee
or an unlicensed employee or agent of any licensee on the
grounds of fraud, misrepresentation, discrimination, or
deceit, the aggrieved person may, upon the termination of all
proceedings, including review and appeals in connection with
the judgment, file a verified claim in the court in which the
judgment was entered and, upon 30 days written notice to OBRE
and to the person against whom the judgment was obtained, may
apply to the court for an order directing payment out of the
Auction Recovery Fund of the amount unpaid upon the judgment,
not including interest on the judgment, and subject to the
limitation stated in Section 30-40 of this Act. The
aggrieved person must set out in that verified claim and at
an evidentiary hearing to be held by the court that the
aggrieved person:
(1) is not the spouse of the debtor or the personal
representative of the spouse;
(2) has complied with all the requirements of this
Section;
(3) has obtained a judgment stating the amount
thereof and the amount owing thereon, not including
interest thereon, at the date of the application;
(4) has made all reasonable searches and inquiries
to ascertain whether the judgment debtor possesses real
or personal property or other assets which may be sold or
applied in satisfaction of the judgment;
(5) has discovered no personal or real property or
other assets liable to be sold or applied, or has
discovered certain of them, describing them owned by the
judgment debtor and liable to be so applied, and has
taken all necessary action and proceeding for the
realization thereof, and the amount thereby realized was
insufficient to satisfy the judgment, stating the amount
so realized and the balance remaining due on the judgment
after application of the amount realized;
(6) has diligently pursued all remedies against all
the judgment debtors and all other persons liable to the
aggrieved person in the transaction for which recovery is
sought from the Auction Recovery Fund;
(7) has filed an adversary action to have the debts
declared non-dischargeable in any bankruptcy petition
matter filed by any judgment debtor or person liable to
the aggrieved person. The aggrieved person shall also be
required to prove the amount of attorney's fees sought to
be recovered and the reasonableness of those fees up to
the maximum allowed pursuant to Section 30-40 of this
Act.
(g) The court shall make an order directed to OBRE
requiring payment from the Auction Recovery Fund of whatever
sum it finds to be payable upon the claim, pursuant to and in
accordance with the limitations contained in Section 30-40 of
this Act, if the court is satisfied, upon the hearing, of the
truth of all matters required to be shown by the aggrieved
person by subsection (f) of this Section and that the
aggrieved person has fully pursued and exhausted all remedies
available for recovering the amount awarded by the judgment
of the court.
(h) If the OBRE pays from the Auction Recovery Fund any
amount in settlement of a claim or toward satisfaction of a
judgment against any licensee, or employee or agent of any
licensee, the license of said licensee shall be automatically
terminated without hearing upon the issuance of a court order
authorizing payment from the Auction Recovery Fund. No
petition for restoration of the license shall be heard until
repayment of the amount paid from the Auction Recovery Fund
on their account has been made in full, plus interest at the
rate prescribed in Section 12-109 of the Code of Civil
Procedure. A discharge in bankruptcy shall not relieve a
person from the penalties and disabilities provided in this
subsection.
(i) If, at any time, the money deposited in the Auction
Recovery Fund is insufficient to satisfy any duly authorized
claim or portion thereof, OBRE shall, when sufficient money
has been deposited in the Auction Recovery Fund, satisfy such
unpaid claims or portions thereof, in the order that the
claims or portions thereof were originally filed, plus
accumulated interest at the rate prescribed in Section 12-109
of the Code of Civil Procedure.
Section 30-50. Contractual agreements. The OBRE may
enter into contractual agreements with third parties to carry
out the provisions of this Act.
Section 30-55. Reciprocal agreements. The OBRE shall
have the authority to enter into reciprocal licensing
agreements with the proper authority of a state, territory,
or possession of the United States or the District of
Columbia having licensing requirements equal to or
substantially equivalent to the requirements of this State.
ARTICLE 950. AMENDATORY PROVISIONS
Section 950-5. The Regulatory Sunset Act is amended by
adding Section 4.20 as follows:
(5 ILCS 80/4.20 new)
Sec. 4.20. Act repealed on January 1, 2010. The
following Act is repealed on January 1, 2010:
The Auction License Act.
Section 950-10. The State Finance Act is amended by
adding Sections 5.490, 5.491, and 5.492 as follows:
(30 ILCS 105/5.490 new)
Sec. 5.490. The Auction Regulation Administration Fund.
(30 ILCS 105/5.491 new)
Sec. 5.491. The Auction Recovery Fund.
(30 ILCS 105/5.492 new)
Sec. 5.492. The Auction Education Fund.
Section 950-15. If and only if House Bill 902 of the
91st General Assembly becomes law, the Real Estate License
Act of 1999 is amended by changing Sections 1-10 and 5-20 as
follows:
(91HB0902, Sec. 1-10)
Sec. 1-10. Definitions. In this Act, unless the context
otherwise requires:
"Act" means the Real Estate License Act of 1999.
"Advisory Council" means the Real Estate Education
Advisory Council created under Section 30-10 of this Act.
"Agency" means a relationship in which a real estate
broker or licensee, whether directly or through an affiliated
licensee, represents a consumer by the consumer's consent,
whether express or implied, in a real property transaction.
"Applicant" means any person, as defined in this Section,
who applies to OBRE for a valid license as a real estate
broker, real estate salesperson, or leasing agent.
"Blind advertisement" means any real estate advertisement
that does not include the sponsoring broker's business name
and that is used by any licensee regarding the sale or lease
of real estate, including his or her own, licensed
activities, or the hiring of any licensee under this Act.
The broker's business name in the case of a franchise shall
include the franchise affiliation as well as the name of the
individual firm.
"Board" means the Real Estate Administration and
Disciplinary Board of OBRE.
"Branch office" means a sponsoring broker's office other
than the sponsoring broker's principal office.
"Broker" means an individual, partnership, limited
liability company, corporation, or registered limited
liability partnership other than a real estate salesperson or
leasing agent who for another and for compensation either
directly or indirectly:
(1) Sells, exchanges, purchases, rents, or leases
real estate.
(2) Offers to sell, exchange, purchase, rent, or
lease real estate.
(3) Negotiates, offers, attempts, or agrees to
negotiate the sale, exchange, purchase, rental, or
leasing of real estate.
(4) Lists, offers, attempts, or agrees to list real
estate for sale, lease, or exchange.
(5) Buys, sells, offers to buy or sell, or
otherwise deals in options on real estate or improvements
thereon.
(6) Supervises the collection, offer, attempt, or
agreement to collect rent for the use of real estate.
(7) Advertises or represents himself or herself as
being engaged in the business of buying, selling,
exchanging, renting, or leasing real estate.
(8) Assists or directs in procuring or referring of
prospects, intended to result in the sale, exchange,
lease, or rental of real estate.
(9) Assists or directs in the negotiation of any
transaction intended to result in the sale, exchange,
lease, or rental of real estate.
(10) Opens real estate to the public for marketing
purposes.
(11) Sells, leases, or offers for sale or lease
real estate at auction.
"Brokerage agreement" means a written or oral agreement
between a sponsoring broker and a consumer for licensed
activities to be provided to a consumer in return for
compensation or the right to receive compensation from
another. Brokerage agreements may constitute either a
bilateral or a unilateral agreement between the broker and
the broker's client depending upon the content of the
brokerage agreement. All exclusive brokerage agreements shall
be in writing.
"Client" means a person who is being represented by a
licensee.
"Commissioner" means the Commissioner of Banks and Real
Estate or a person authorized by the Commissioner, the Office
of Banks and Real Estate Act, or this Act to act in the
Commissioner's stead.
"Compensation" means the valuable consideration given by
one person or entity to another person or entity in exchange
for the performance of some activity or service.
Compensation shall include the transfer of valuable
consideration, including without limitation the following:
(1) commissions;
(2) referral fees;
(3) bonuses;
(4) prizes;
(5) merchandise;
(6) finder fees;
(7) performance of services;
(8) coupons or gift certificates;
(9) discounts;
(10) rebates;
(11) a chance to win a raffle, drawing, lottery, or
similar game of chance not prohibited by any other law or
statute;
(12) retainer fee; or
(13) salary.
"Confidential information" means information obtained by
a licensee from a client during the term of a brokerage
agreement that (i) was made confidential by the written
request or written instruction of the client, (ii) deals with
the negotiating position of the client, or (iii) is
information the disclosure of which could materially harm the
negotiating position of the client, unless at any time:
(1) the client permits the disclosure of
information given by that client by word or conduct;
(2) the disclosure is required by law; or
(3) the information becomes public from a source
other than the licensee.
"Confidential information" shall not be considered to
include material information about the physical condition of
the property.
"Consumer" means a person or entity seeking or receiving
licensed activities.
"Continuing education school" means any person licensed
by OBRE as a school for continuing education in accordance
with Section 30-15 of this Act.
"Credit hour" means 50 minutes of classroom instruction
in course work that meets the requirements set forth in rules
adopted by OBRE.
"Customer" means a consumer who is not being represented
by the licensee but for whom the licensee is performing
ministerial acts.
"Designated agency" means a contractual relationship
between a sponsoring broker and a client under Section 15-50
of this Act in which one or more licensees associated with or
employed by the broker are designated as agent of the client.
"Designated agent" means a sponsored licensee named by a
sponsoring broker as the legal agent of a client, as provided
for in Section 15-50 of this Act.
"Director" means the Director of the Real Estate
Division, OBRE.
"Dual agency" means an agency relationship in which a
licensee is representing both buyer and seller or both
landlord and tenant in the same transaction. When the agency
relationship is a designated agency, the question of whether
there is a dual agency shall be determined by the agency
relationships of the designated agent of the parties and not
of the sponsoring broker.
"Employee" or other derivative of the word "employee",
when used to refer to, describe, or delineate the
relationship between a real estate broker and a real estate
salesperson, another real estate broker, or a leasing agent,
shall be construed to include an independent contractor
relationship, provided that a written agreement exists that
clearly establishes and states the relationship. All
responsibilities of a broker shall remain.
"Escrow moneys" means all moneys, promissory notes or any
other type or manner of legal tender or financial
consideration deposited with any person for the benefit of
the parties to the transaction. A transaction exists once an
agreement has been reached and an accepted real estate
contract signed or lease agreed to by the parties. Escrow
moneys includes without limitation earnest moneys and
security deposits, except those security deposits in which
the person holding the security deposit is also the sole
owner of the property being leased and for which the security
deposit is being held.
"Inoperative" means a status of licensure where the
licensee holds a current license under this Act, but the
licensee is prohibited from engaging in licensed activities
because the licensee is unsponsored or the license of the
sponsoring broker with whom the licensee is associated or by
whom he or she is employed is currently expired, revoked,
suspended, or otherwise rendered invalid under this Act.
"Leasing Agent" means a person who is employed by a real
estate broker to engage in licensed activities limited to
leasing residential real estate who has obtained a license as
provided for in Section 5-5 of this Act.
"License" means the document issued by OBRE certifying
that the person named thereon has fulfilled all requirements
prerequisite to licensure under this Act.
"Licensed activities" means those activities listed in
the definition of "broker" under this Section.
"Licensee" means any person, as defined in this Section,
who holds a valid unexpired license as a real estate broker,
real estate salesperson, or leasing agent.
"Listing presentation" means a communication between a
real estate broker or salesperson and a consumer in which the
licensee is attempting to secure a brokerage agreement with
the consumer to market the consumer's real estate for sale or
lease.
"Managing broker" means a broker who has supervisory
responsibilities for licensees in one or, in the case of a
multi-office company, more than one office and who has been
appointed as such by the sponsoring broker of the real estate
firm.
"Medium of advertising" means any method of communication
intended to influence the general public to use or purchase a
particular good or service or real estate.
"Ministerial acts" means those acts that a licensee may
perform for a consumer that are informative or clerical in
nature and do not rise to the level of active representation
on behalf of a consumer. Examples of these acts include
without limitation (i) responding to phone inquiries by
consumers as to the availability and pricing of brokerage
services, (ii) responding to phone inquiries from a consumer
concerning the price or location of property, (iii) attending
an open house and responding to questions about the property
from a consumer, (iv) setting an appointment to view
property, (v) responding to questions of consumers walking
into a licensee's office concerning brokerage services
offered or particular properties, (vi) accompanying an
appraiser, inspector, contractor, or similar third party on a
visit to a property, (vii) describing a property or the
property's condition in response to a consumer's inquiry,
(viii) completing business or factual information for a
consumer on an offer or contract to purchase on behalf of a
client, (ix) showing a client through a property being sold
by an owner on his or her own behalf, or (x) referral to
another broker or service provider.
"OBRE" means the Office of Banks and Real Estate.
"Office" means a real estate broker's place of business
where the general public is invited to transact business and
where records may be maintained and licenses displayed,
whether or not it is the broker's principal place of
business.
"Person" means and includes individuals, entities,
corporations, limited liability companies, registered limited
liability partnerships, and partnerships, foreign or
domestic, except that when the context otherwise requires,
the term may refer to a single individual or other described
entity.
"Personal assistant" means a licensed or unlicensed
person who has been hired for the purpose of aiding or
assisting a sponsored licensee in the performance of the
sponsored licensee's job.
"Pocket card" means the card issued by OBRE to signify
that the person named on the card is currently licensed under
this Act.
"Pre-license school" means a school licensed by OBRE
offering courses in subjects related to real estate
transactions, including the subjects upon which an applicant
is examined in determining fitness to receive a license.
"Pre-renewal period" means the period between the date of
issue of a currently valid license and the license's
expiration date.
"Real estate" means and includes leaseholds as well as
any other interest or estate in land, whether corporeal,
incorporeal, freehold, or non-freehold and whether the real
estate is situated in this State or elsewhere.
"Real Estate Administration and Disciplinary Board" or
"Board" means the Real Estate Administration and Disciplinary
Board created by Section 25-10 of this Act.
"Salesperson" means any individual, other than a real
estate broker or leasing agent, who is employed by a real
estate broker or is associated by written agreement with a
real estate broker as an independent contractor and
participates in any activity described in the definition of
"broker" under this Section.
"Sponsoring broker" means the broker who has issued a
sponsor card to a licensed salesperson, another licensed
broker, or a leasing agent.
"Sponsor card" means the temporary permit issued by the
sponsoring real estate broker certifying that the real estate
broker, real estate salesperson, or leasing agent named
thereon is employed by or associated by written agreement
with the sponsoring real estate broker, as provided for in
Section 5-40 of this Act.
(Source: 91HB0902 as introduced.)
(91HB0902, Sec. 5-20)
Sec. 5-20. Exemptions from broker, salesperson, or
leasing agent license requirement. The requirement for
holding a license under this Article 5 shall not apply to:
(1) Any person, partnership, or corporation that as
owner or lessor performs any of the acts described in the
definition of "broker" under Section 1-10 of this Act with
reference to property owned or leased by it, or to the
regular employees thereof with respect to the property so
owned or leased, where such acts are performed in the regular
course of or as an incident to the management, sale, or other
disposition of such property and the investment therein,
provided that such regular employees do not perform any of
the acts described in the definition of "broker" under
Section 1-10 of this Act in connection with a vocation of
selling or leasing any real estate or the improvements
thereon not so owned or leased.
(2) An attorney in fact acting under a duly executed and
recorded power of attorney to convey real estate from the
owner or lessor or the services rendered by an attorney at
law in the performance of the attorney's duty as an attorney
at law.
(3) Any person acting as receiver, trustee in
bankruptcy, administrator, executor, or guardian or while
acting under a court order or under the authority of a will
or testamentary trust.
(4) Any person acting as a resident manager for the
owner or any employee acting as the resident manager for a
broker managing an apartment building, duplex, or apartment
complex, when the resident manager resides on the premises,
the premises is his or her primary residence, and the
resident manager is engaged in the leasing of the property of
which he or she is the resident manager.
(5) Any officer or employee of a federal agency in the
conduct of official duties.
(6) Any officer or employee of the State government or
any political subdivision thereof performing official duties.
(7) Any multiple listing service or other information
exchange that is engaged in the collection and dissemination
of information concerning real estate available for sale,
purchase, lease, or exchange along with which no other
licensed activities are provided.
(8) Railroads and other public utilities regulated by
the State of Illinois, or the officers or full time employees
thereof, unless the performance of any licensed activities is
in connection with the sale, purchase, lease, or other
disposition of real estate or investment therein not needing
the approval of the appropriate State regulatory authority.
(9) Any medium of advertising in the routine course of
selling or publishing advertising along with which no other
licensed activities are provided.
(10) Any resident lessee of a residential dwelling unit
who refers for compensation to the owner of the dwelling
unit, or to the owner's agent, prospective lessees of
dwelling units in the same building or complex as the
resident lessee's unit, but only if the resident lessee (i)
refers no more than 3 prospective lessees in any 12-month
period, (ii) receives compensation of no more than $1,000 or
the equivalent of one month's rent, whichever is less, in any
12-month period, and (iii) limits his or her activities to
referring prospective lessees to the owner, or the owner's
agent, and does not show a residential dwelling unit to a
prospective lessee, discuss terms or conditions of leasing a
dwelling unit with a prospective lessee, or otherwise
participate in the negotiation of the leasing of a dwelling
unit.
(11) Any person who is licensed without examination under
Section 10-25 of the Auction License Act is exempt from
holding a broker's or salesperson's license under this Act
for the limited purpose of selling or leasing real estate at
auction, so long as:
(A) that person has made application for said
exemption by July 1, 2000;
(B) that person verifies to OBRE that he or
she has sold real estate at auction for a period of
5 years prior to licensure as an auctioneer;
(C) the person has had no lapse in his or her
license as an auctioneer; and
(D) the license issued under the Auction
License Act has not been disciplined for violation
of those provisions of Article 20 of the Auction
License Act dealing with or related to the sale or
lease of real estate at auction.
(Source: 91HB0902 as introduced.)
ARTICLE 999. EFFECTIVE DATE
Section 999-99. Effective date. This Act takes effect
on January 1, 2000, except that Sections 30-15 and 30-40 take
effect July 1, 1999.
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