HB2397 96TH GENERAL ASSEMBLY

LRB096 08468 ASK 18587 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB2397

Introduced 2/19/2009, by Rep. Angelo Saviano

SYNOPSIS AS INTRODUCED:

See Index

Amends the Auction License Act. Provides that upon the effective date of this amendatory Act of the 96th General Assembly, any person who holds a valid license as an associate auctioneer shall be issued an auctioneer license without having to apply to the Department or pay any fee. Provides that upon receipt of such an auctioneer license, a licensee's associate auctioneer license shall no longer be valid. Eliminates the Auction Regulation Administration Fund, the Auction Education Fund, and the Auction Recovery Fund. Provides that all fees collected under this Act shall be deposited into the General Professions Dedicated Fund and appropriated to the Department for the ordinary and contingent expenses of the Department in the administration of this Act. Provides that the Department may investigate the actions of any applicant or person rendering or offering to render auction services, or holding or claiming to hold a license as a licensed auctioneer. In a provision concerning disciplinary hearings, provides that if the Secretary disagrees with the recommendations of the Board, the Secretary may issue an order in contravention of the Board recommendations. Provides that the Department may contract with third parties for services necessary for the proper administration of the Act. Makes certain changes to the responsibilities and powers of the Auction Advisory Board and the Secretary. Defines "address of record". Makes other changes. Effective immediately.

A BILL FOR

AN ACT concerning professional regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Auction License Act is amended by changing Sections 5-10, 10-30, 10-35, 10-40, 10-45, 10-50, 15-5, 15-10, 15-25, 20-5, 20-15, 20-40, 20-50, 20-55, 20-80, and 30-30 and by adding Sections 10-15a, 20-43, 30-7 and 30-13 as follows:

(225 ILCS 407/5-10)

(Section scheduled to be repealed on January 1, 2010)

Sec. 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 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 Department.

"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.

"Address of Record" means the designated address recorded by the Department in the applicant's or licensee's application file or license file maintained by the Department. It is the duty of the applicant or licensee to inform the Department of any change of address, and such changes must be made either through the Department's website or by directly contacting the Department.

"Department" means the Department of Financial and Professional 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.

"Person" means an individual, association, partnership, corporation, or 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.

"Secretary" means the Secretary of the Department of Financial and Professional Regulation or his or her designee.

"Sponsoring auctioneer" means the auctioneer or auction firm who has issued a sponsor card to a licensed associate auctioneer or auctioneer.

"Sponsor card" means 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.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/10-15a new)

Sec. 10-15a. Associate auctioneer license; discontinuance.

(a) Upon the effective date of this amendatory Act of the 96th General Assembly, the Department shall no longer issue or renew any associate auctioneer license.

(b) Any person who holds a valid license as an associate auctioneer on the effective date of this amendatory Act of the 96th General Assembly shall be issued an auctioneer license without having to apply to the Department or pay any fee. Such licensee's previous record as an associate auctioneer, including any past discipline imposed on him or her, shall be become part of his or her auctioneer license record. The expiration date of such licensee's auctioneer license shall be the same as the expiration date of his or her associate auctioneer license.

(c) Upon receipt of an auctioneer license issued by the Department pursuant to this Section, a licensee's associate auctioneer license shall no longer be valid.

(225 ILCS 407/10-30)

(Section scheduled to be repealed on January 1, 2010)

Sec. 10-30. Expiration, renewal, and continuing education.

(a) License expiration dates, renewal periods, renewal fees, and procedures for renewal of licenses issued under this Act shall be set by rule of the Department. An entity may renew its license by paying the required fee and by meeting the renewal requirements adopted by the Department under this Section.

(b) All renewal applicants must provide proof as determined by the Department of having met the continuing education requirements set forth by the Department by rule. At a minimum, the rules shall require an applicant for renewal licensure as an auctioneer or associate auctioneer to provide proof of the completion of at least 12 hours of continuing education during the pre-renewal period preceding the expiration date of the license from schools approved by the Department, as established by rule.

(c) The Department, in its discretion, may waive enforcement of the continuing education requirements of this Section and shall adopt rules defining the standards and criteria for such waiver.

(d) (Blank).

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/10-35)

(Section scheduled to be repealed on January 1, 2010)

Sec. 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 Department 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 Department 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) (Blank). 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 Department or shall notify the Department 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 Department a properly completed 45-day permit sponsor card, the terminated license, and the appropriate fee.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/10-40)

(Section scheduled to be repealed on January 1, 2010)

Sec. 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 Department on forms provided by the Department, 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 States 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 Department, 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 Department 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 Department may restore the license to the licensee without examination upon the order of the Secretary, 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.

(Source: P.A. 95-331, eff. 8-21-07; 95-572, eff. 6-1-08.)

(225 ILCS 407/10-45)

(Section scheduled to be repealed on January 1, 2010)

Sec. 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 Department 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 Department 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 Department; and

(4) that the applicant pays all applicable fees required under this Act.

(b) A nonresident applicant shall file an irrevocable consent with the Department 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 Secretary. The consent shall stipulate and agree that service of the process, summons, or pleading upon the Secretary 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 Secretary, it shall be by duplicate copies, one of which shall be retained by the Department 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.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/10-50)

(Section scheduled to be repealed on January 1, 2010)

Sec. 10-50. Fees; disposition of funds. Fees shall be determined by rule and shall be non-refundable.

(a) The Department shall establish by rule a schedule of fees for the administration and maintenance of this Act. Such fees shall be nonrefundable.

(b) All fees collected under this Act shall be deposited into the General Professions Dedicated Fund and appropriated to the Department for the ordinary and contingent expenses of the Department in the administration of this Act. The Department 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 Department may also provide by administrative rule for general fees to cover the reasonable expenses of carrying out other functions and responsibilities under this Act.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/15-5)

(Section scheduled to be repealed on January 1, 2010)

Sec. 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.

(Source: P.A. 91-603, eff. 1-1-00.)

(225 ILCS 407/15-10)

(Section scheduled to be repealed on January 1, 2010)

Sec. 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.

(Source: P.A. 91-603, eff. 1-1-00.)

(225 ILCS 407/15-25)

(Section scheduled to be repealed on January 1, 2010)

Sec. 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.

Whenever, in the opinion of the Department, a person violates any provision of this Act, the Department may issue a rule to show cause why an order to cease and desist should not be entered against that person. The rule shall clearly set forth the grounds relied upon by the Department and shall allow the person at least 7 days from the date of the rule to file an answer satisfactory to the Department. Failure to answer to the satisfaction of the Department shall cause an order to cease and desist to be issued.

(Source: P.A. 91-603, eff. 1-1-00.)

(225 ILCS 407/20-5)

(Section scheduled to be repealed on January 1, 2010)

Sec. 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 penalty to the Department in an amount not to exceed $10,000 for each offense as determined by the Department. The civil penalty fine shall be assessed by the Department 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 Department has the authority and power to investigate any and all unlicensed activity pursuant to this Act.

(c) The civil penalty shall be paid within 60 days after the effective date of the order imposing the civil penalty. The order shall constitute a judgment 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 Secretary, 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.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/20-15)

(Section scheduled to be repealed on January 1, 2010)

Sec. 20-15. Disciplinary actions; grounds. The Department may refuse to issue or renew a license, may place on probation or administrative supervision, suspend, or revoke any license or may reprimand or take other disciplinary or non-disciplinary action as the Department may deem proper, including the imposition of fines not to exceed $10,000 for each violation upon anyone licensed under this Act for any of the following reasons:

(1) False or fraudulent representation or material misstatement in furnishing information to the Department 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 or entry of a plea of guilty or nolo contendere to any crime that is a felony under the laws of the United States or any state or territory thereof, or that is a misdemeanor, an essential element of which is dishonesty, or any crime that is directly related to the practice of the profession. 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 Department, 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 Department 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 Department 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 Department.

(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 2001, or any successor Act.

(24) Inability to practice the profession with reasonable judgement, skill, or safety as a result of a physical illness, including, but not limited to, deterioration through the aging process or loss of motor skill, or a mental illness or disability. Physical illness, mental illness, or other impairment including without limitation deterioration through the aging process, mental illness, or disability that results in the inability to practice the profession with reasonable judgment, skill, and safety.

(25) A pattern of practice or other behavior that demonstrates incapacity or incompetence to practice under this Act.

(26) Being named as a perpetrator in an indicated report by the Department of Children and Family Services under the Abused and Neglected Child Reporting Act and upon proof by clear and convincing evidence that the licensee has caused a child to be an abused child or a neglected child as defined in the Abused and Neglected Child Reporting Act.

(27) Inability to practice with reasonable judgement, skill, or safety as a result of habitual or excessive use or addiction to alcohol, narcotics, stimulants, or any other chemical agent or drug. Habitual or excessive use or addiction to alcohol, narcotics, stimulants, or any other chemical agent or drug that results in a licensee's inability to practice with reasonable judgment, skill, or safety.

(28) Wilfully failing to report an instance of suspected child abuse or neglect as required by the Abused and Neglected Child Reporting Act.

The entry of an order by a circuit court establishing that any person holding a license under this Act is subject to involuntary admission or judicial admission, as provided for in the Mental Health and Developmental Disabilities Code, operates as an automatic suspension of that license. That person may have his or her license restored only upon the determination by a circuit court that the patient is no longer subject to involuntary admission or judicial admission and the issuance of an order so finding and discharging the patient and upon the Board's recommendation to the Department that the license be restored. Where circumstances so indicate, the Board may recommend to the Department that it require an examination prior to restoring a suspended license.

If the Department or Board finds an individual unable to practice because of the reasons set forth in this Section, the Department or Board may require that individual to submit to care, counseling, or treatment by physicians approved or designated by the Department or Board, as a condition, term, or restriction for continued, reinstated, or renewed licensure to practice; or, in lieu of care, counseling, or treatment, the Department may file, or the Board may recommend to the Department to file, a complaint to immediately suspend, revoke, or otherwise discipline the license of the individual. An individual whose license was granted, continued, reinstated, renewed, disciplined or supervised subject to such terms, conditions, or restrictions, and who fails to comply with such terms, conditions, or restrictions, shall be referred to the Secretary for a determination as to whether the individual shall have his or her license suspended immediately, pending a hearing by the Department. In instances in which the Secretary immediately suspends a person's license under this Section, a hearing on that person's license must be convened by the Department within 21 days after the suspension and completed without appreciable delay. The Department and Board shall have the authority to review the subject individual's record of treatment and counseling regarding the impairment to the extent permitted by applicable federal statutes and regulations safeguarding the confidentiality of medical records.

An individual licensed under this Act and affected under this Section shall be afforded an opportunity to demonstrate to the Department or Board that he or she can resume practice in compliance with acceptable and prevailing standards under the provisions of his or her license.

In enforcing this Section, the Department or Board, upon a showing of a possible violation, may compel an individual licensed to practice under this Act, or who has applied for licensure under this Act, to submit to a mental or physical examination, or both, as required by and at the expense of the Department. The Department or Board may order the examining physician to present testimony concerning the mental or physical examination of the licensee or applicant. No information shall be excluded by reason of any common law or statutory privilege relating to communications between the licensee or applicant and the examining physician. The examining physicians shall be specifically designated by the Board or Department. The individual to be examined may have, at his or her own expense, another physician of his or her choice present during all aspects of this examination. Failure of an individual to submit to a mental or physical examination when directed shall be grounds for suspension of his or her license until the individual submits to the examination, if the Department finds that, after notice and hearing, the refusal to submit to the examination was without reasonable cause.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/20-40)

(Section scheduled to be repealed on January 1, 2010)

Sec. 20-40. Hearings; record of hearings.

(a) The Department 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) The Department, at its expense, shall preserve a record of all proceedings at the formal hearing of any case. The notice of hearing, complaint, all other documents in the nature of pleadings, written motions filed in the proceedings, the transcripts of testimony, the report of the Board, and orders of the Department shall be in the record of the proceeding. The Department shall furnish a transcript of such record to any person interested in such hearing upon payment of the fee required under Section 2105-115 of the Department of Professional Regulation Law (20 ILCS 2105/2105-115). The Department, 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 the Department shall be the record of proceeding. At all hearings or prehearing conference, the Department and the respondent shall be entitled to have a court reporter in attendance for purposes of transcribing the proceeding or prehearing conference.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/20-43 new)

Sec. 20-43. Investigations; notice and hearing. The Department may investigate the actions of any applicant or person rendering or offering to render auction services, or holding or claiming to hold a license as a licensed auctioneer. At least 30 days before any disciplinary hearing under this Act, the Department shall: (i) notify the accused in writing of the charges made and the time and place of the hearing; (ii) direct the accused to file with the Board a written answer under oath to the charges within 20 days of receiving service of the notice; and (iii) inform the accused that if he or she fails to file an answer to the charges within 20 days of receiving service of the notice, a default judgement may be entered against him or her, or his or her license may be suspended, revoked, placed on probationary status, or other disciplinary action taken with regard to the license as the Department may consider proper, including, but not limited to, limiting the scope, nature, or extent of the licensee's practice, or imposing a fine.

At the time and place of the hearing fixed in the notice, the Board shall proceed to hear the charges and the accused or his or her counsel shall be accorded ample opportunity to present any pertinent statements, testimony, evidence, and arguments in his or her defense. The Board may continue the hearing when it deems it appropriate.

Written notice of the hearing may be served by personal delivery or by certified mail to the last known address of record, unless specified as otherwise by the accused in his or her last communication with the Department.

(225 ILCS 407/20-50)

(Section scheduled to be repealed on January 1, 2010)

Sec. 20-50. Findings and recommendations. Board's findings of fact, conclusions of law, and recommendation to the Secretary. At the conclusion of the hearing, the Board shall present to the Secretary a written report of its findings of fact, conclusions of law, and recommendations. The report shall contain a finding whether or not the accused person violated this Act or any rules promulgated pursuant to this Act. The Board shall specify the nature of any violations and shall make its recommendations to the Secretary. In making recommendations for any disciplinary action, the Board may take into consideration all facts and circumstances bearing upon the reasonableness of the conduct of the accused, including, but not limited to, previous discipline of the accused by the Department, intent, degree of harm to the public and likelihood of future harm to the public, any restitution made by the accused, and whether the incident or incidents contained in the complaint appear to be isolated or represent a continuing pattern of conduct. In making its recommendations for discipline, the Board shall endeavor to ensure that the severity of the discipline recommended is reasonably proportional to the severity of the violation.

The report of the Board's findings of fact, conclusions of law, and recommendations shall be the basis for the Department's decision to refuse to issue, restore, or renew a license, or to take any other disciplinary action. If the Secretary disagrees with the recommendations of the Board, the Secretary may issue an order in contravention of the Board recommendations. The report's findings are not admissible in evidence against the person in a criminal prosecution brought for a violation of this Act, but the hearing and findings are not a bar to a criminal prosecution for the violation of this Act. At the conclusion of the hearing, the Advisory Board shall present to the Secretary 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 Secretary.

If the Secretary disagrees in any regard with the report of the Advisory Board, the Secretary may issue an order in contravention of the report. The Secretary 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.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/20-55)

(Section scheduled to be repealed on January 1, 2010)

Sec. 20-55. Appointment of a hearing officer. Motion for rehearing; rehearing. The Secretary has the authority to appoint any attorney licensed to practice law in the State of Illinois to serve as the hearing officer in any action for refusal to issue, restore, or renew a license or to discipline a licensee. The hearing officer has full authority to conduct the hearing. Any Board member may attend hearings. The hearing officer shall report his or her findings of fact, conclusions of law, and recommendations to the Board. The Board shall review the report of the hearing officer and present its findings of fact, conclusions of law, and recommendations to the Secretary and to all parties to the proceedings.

If the Secretary disagrees with the recommendations of the Board or hearing officer, the Secretary may issue an order in contravention of the Board's recommendations. In any hearing involving the discipline of a license, a copy of the Advisory Board's report shall be served upon the respondent by the Department, 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 the Department 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 Secretary 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 Secretary is not satisfied that substantial justice has been done in the hearing or in the Advisory Board's report, the Secretary may order a rehearing by the same.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/20-80)

(Section scheduled to be repealed on January 1, 2010)

Sec. 20-80. Summary suspension. The Secretary 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 Secretary finds that the evidence indicates that the public interest, safety, or welfare requires emergency action. In the event that the Secretary temporarily suspends any license without a hearing, a hearing shall be commenced 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.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/30-7 new)

Sec. 30-7. Department; powers and duties. The Department 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 are prescribed by this Act. The Department may contract with third parties for services necessary for the proper administration of this Act.

(225 ILCS 407/30-13 new)

Sec. 30-13. The General Professions Dedicated Fund. All of the fees, fines, and penalties collected under this Act shall be deposited into the General Professions Dedicated Fund. The monies deposited into the General Professions Dedicated Fund shall be used by the Department, as appropriated, for the ordinary and contingent expenses of the Department. Monies in the General Professions Dedicated Fund may be invested and reinvested, with all earnings received from investments to be deposited into that Fund and used for the same purposes as fees deposited in that Fund.

(225 ILCS 407/30-30)

(Section scheduled to be repealed on January 1, 2010)

Sec. 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 Secretary. In making the appointments, the Secretary shall give due consideration to the recommendations by members and organizations of the industry, including but not limited to the Illinois State Auctioneers Association. Five 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. The Advisory Board shall annually elect one of its members to serve as Chairperson.

(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. The Secretary 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 Secretary 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 Secretary. 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 Department Chairperson.

(g) The Advisory Board shall advise the Department on matters of licensing and education and make recommendations to the Department on those matters and shall hear and make recommendations to the Secretary on disciplinary matters that require a formal evidentiary hearing.

(h) The Secretary shall give due consideration to all recommendations of the Advisory Board.

(Source: P.A. 95-572, eff. 6-1-08.)

(225 ILCS 407/10-15 rep.)

(225 ILCS 407/10-25 rep.)

(225 ILCS 407/15-20 rep.)

(225 ILCS 407/20-45 rep.)

(225 ILCS 407/20-90 rep.)

(225 ILCS 407/30-15 rep.)

(225 ILCS 407/30-20 rep.)

(225 ILCS 407/30-35 rep.)

(225 ILCS 407/30-40 rep.)

(225 ILCS 407/30-45 rep.)

Section 10. The Auction License Act is amended by repealing Sections 10-15, 10-25, 15-20, 20-45, 20-90, 30-15, 30-20, 30-35, 30-40 and 30-45.

Section 99. Effective date. This Act takes effect upon becoming law.