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91_HB1805
LRB9102826ACtm
1 AN ACT to create the Auction License Act, amending named
2 Acts.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 ARTICLE 5. GENERAL PROVISIONS
6 Section 5-1. Short title. This Act may be cited as the
7 Auction License Act.
8 Section 5-5. Legislative intent. The General Assembly
9 finds that Illinois does not have the ability, without
10 legislation, to enter into reciprocal agreements with other
11 states to allow residents of Illinois to practice
12 auctioneering in other states. This body further finds that,
13 without legislation, Illinois does not have the ability to
14 evaluate the competency of persons engaged in the auction
15 business or to regulate this business for the protection of
16 the public. Therefore, it is the purpose of this Act to
17 license and regulate auctioneers.
18 Section 5-10. Definitions, as used in this Act:
19 "Advertisement" means any written, oral, or electronic
20 communication that contains a promotion, inducement, or offer
21 to conduct an auction or offer to provide an auction service,
22 including but not limited to brochures, pamphlets, radio and
23 television scripts, telephone and direct mail solicitations,
24 electronic media, and other means of promotion.
25 "Advisory Board" means the Auctioneer Advisory Board.
26 "Associate auctioneer" means a person who conducts an
27 auction, but who is under the direct supervision of, and is
28 sponsored by, a licensed auctioneer or auction firm.
29 "Auction" means the sale or lease of property, real or
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1 personal, by means of exchanges between an auctioneer or
2 associate auctioneer and prospective purchasers or lessees,
3 which consists of a series of invitations for offers made by
4 the auctioneer or associate auctioneer and offers by
5 prospective purchasers or lessees for the purpose of
6 obtaining an acceptable offer for the sale or lease of the
7 property.
8 "Auction contract" means a written agreement between an
9 auctioneer, associate auctioneer, or an auction firm and a
10 seller or sellers.
11 "Auction firm" means any corporation, partnership, or
12 limited liability company that acts as an auctioneer and
13 provides an auction service.
14 "Auction school" means any educational institution,
15 public or private, which offers a curriculum of auctioneer
16 education and training approved by the Office of Banks and
17 Real Estate.
18 "Auction service" means the service of arranging,
19 managing, advertising, or conducting auctions.
20 "Auctioneer" means a person or entity who, for a fee,
21 compensation, commission, or any other valuable consideration
22 at auction or with the intention or expectation of receiving
23 valuable consideration by the means of or process of an
24 auction or sale at auction or providing an auction service,
25 offers, negotiates, or attempts to negotiate an auction
26 contract, sale, purchase, or exchange of goods, chattels,
27 merchandise, personal property, real property, or any
28 commodity that may be lawfully kept or offered for sale by or
29 at auction.
30 "Commissioner" means the Commissioner of the Office of
31 Banks and Real Estate or his or her designee.
32 "Director" means the Director of Auction Regulation.
33 "Goods" means chattels, movable goods, merchandise, or
34 personal property or commodities of any form or type that may
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1 be lawfully kept or offered for sale.
2 "Licensee" means any person licensed under this Act.
3 "Managing auctioneer" means any person licensed as an
4 auctioneer who manages and supervises licensees sponsored by
5 an auction firm or auctioneer.
6 "OBRE" means the Office of Banks and Real Estate.
7 "Person" means an individual, association, partnership,
8 corporation, limited liability company or the officers,
9 directors, or employees of the same.
10 "Pre-renewal period" means the 24 months prior to the
11 expiration date of a licensed issued under this Act.
12 "Sponsoring auctioneer" means the auctioneer or auction
13 firm who has issued a sponsor card to a licensed associate
14 auctioneer or auctioneer.
15 "Sponsor card" shall mean the temporary permit issued by
16 the sponsoring auctioneer certifying that the licensee named
17 thereon is employed by or associated with the sponsoring
18 auctioneer and the sponsoring auctioneer shall be responsible
19 for the actions of the sponsored licensee.
20 ARTICLE 10. LICENSING PROVISIONS
21 Section 10-1. Necessity of license; exemptions. It is
22 unlawful for any person, corporation, limited liability
23 company, partnership, or other entity to conduct an auction,
24 provide an auction service, hold himself or herself out as an
25 auctioneer, or advertise his or her services as an auctioneer
26 in the State of Illinois without a license issued by OBRE
27 under this Act, except at:
28 (1) an auction conducted solely by or for a
29 not-for-profit organization for charitable purposes;
30 (2) an auction conducted by the owner of the
31 property, real or personal; and
32 (3) an auction for the sale or lease of real
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1 property conducted by a licensee under the Real Estate
2 License Act, or its successor Acts, in accordance with
3 the terms of that Act.
4 Section 10-5. Requirements for auctioneer license;
5 application. Every person who desires to obtain an
6 auctioneer license under this Act shall:
7 (1) apply to OBRE on forms provided by OBRE
8 accompanied by the required fee;
9 (2) be at least 18 years of age;
10 (3) have attained a high school diploma or
11 successfully completed an equivalent course of study
12 determined by an examination conducted by the Illinois
13 State Board of Education;
14 (4) personally take and pass a written examination
15 authorized by OBRE to prove competence, including but not
16 limited to general knowledge of Illinois and federal laws
17 pertaining to personal property contracts, auctions, real
18 property, relevant provisions of Article 4 of the Uniform
19 Commercial Code, ethics, and other topics relating to the
20 auction business; and
21 (5) submit to OBRE a properly completed 45-Day
22 Permit Sponsor Card on forms provided by OBRE.
23 Section 10-15. Requirements for associate auctioneer
24 license; application. Every person who desires to obtain an
25 associate auctioneer license under this Act shall:
26 (1) apply to OBRE on forms provided by OBRE
27 accompanied by the required fee;
28 (2) be at least 18 years of age;
29 (3) have attained a high school diploma or
30 successfully completed an equivalent course of study
31 determined by an examination conducted by the Illinois
32 State Board of Education;
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1 (4) personally take and pass a written examination
2 authorized by OBRE to prove competence, including but not
3 limited to general knowledge of Illinois and federal laws
4 pertaining to personal property contracts, auctions, real
5 property, relevant provisions of Article 4 of the Uniform
6 Commercial Code, ethics, and other topics relating to the
7 auction business; and
8 (5) submit to OBRE a properly completed 45-day
9 permit sponsor card on forms provided by OBRE.
10 Section 10-20. Requirements for auction firm license;
11 application. Any corporation, limited liability company, or
12 partnership who desires to obtain an auction firm license
13 shall:
14 (1) apply to OBRE on forms provided by OBRE
15 accompanied by the required fee; and
16 (2) provide evidence to OBRE that the auction firm
17 has a properly licensed managing auctioneer.
18 Section 10-25. Practice prior to this Act. A person who
19 has actively and lawfully practiced as an auctioneer in the
20 State of Illinois prior to the effective date of this Act may
21 obtain an auctioneer or associate auctioneer license without
22 examination provided he or she:
23 (1) is a resident of the State of Illinois;
24 (2) applies to OBRE and pays required the fees
25 within 6 months after the effective date of this Act;
26 (3) verifies that he or she has practiced as an
27 auctioneer for a period of at least 2 years prior to the
28 effective date of this Act; and
29 (4) verifies that he or she has conducted a minimum
30 of 5 auctions of real or personal property within the 2
31 years prior to the effective date of this Act.
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1 Section 10-30. Expiration, renewal, and continuing
2 education.
3 (a) A license issued under this Act shall expire every 2
4 years beginning on September 30, 2001. The OBRE shall issue
5 a renewal license without examination to an applicant upon
6 submission of a completed renewal application and payment of
7 the required fee.
8 (b) The OBRE shall develop a program for continuing
9 education as established in Article 25 of this Act. No
10 auctioneer or associate auctioneer shall receive a renewal
11 license without completing 12 hours of approved continuing
12 education course work during the pre-renewal period prior to
13 the expiration date of the license from continuing education
14 schools that are approved by the OBRE, as established in
15 Article 25 of this Act. The applicant shall verify on the
16 application that he or she:
17 (1) has complied with the continuing education
18 requirements; or
19 (2) is exempt from the continuing education
20 requirements because it is his or her first renewal and
21 he or she was initially licensed as an auctioneer or
22 associate auctioneer during the pre-renewal period prior
23 to the expiration date.
24 (c) A renewal applicant may request a waiver of the
25 continuing education requirements under subsection (d) of
26 this Section, but shall not practice as an auctioneer or
27 associate auctioneer until such waiver is granted and a
28 renewal license is issued.
29 (d) The Commissioner, with the recommendation of the
30 Advisory Board, may grant a renewal applicant a waiver from
31 all or part of the continuing education requirements for the
32 pre-renewal period if the applicant was not able to fulfill
33 the requirements as a result of the following conditions:
34 (1) Service in the armed forces of the United
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1 States during a substantial part of the pre-renewal
2 period.
3 (2) Service as an elected State or federal
4 official.
5 (3) Service as a full-time employee of the OBRE.
6 (4) Other extreme circumstances as recommended by
7 the Advisory Board.
8 Section 10-35. Completed 45-day permit sponsor card;
9 termination by sponsoring auctioneer; inoperative status.
10 (a) No auctioneer or associate auctioneer shall conduct
11 an auction or provide an auction service without being
12 properly sponsored by a licensed auctioneer or auction firm.
13 (b) The sponsoring auctioneer or sponsoring auction firm
14 shall prepare upon forms provided by the OBRE and deliver to
15 each auctioneer or associate auctioneer employed by or
16 associated with the sponsoring auctioneer or sponsoring
17 auction firm a properly completed duplicate 45-day permit
18 sponsor card certifying that the person whose name appears
19 thereon is in fact employed by or associated with said
20 sponsoring auctioneer or sponsoring auction firm. The
21 sponsoring auctioneer or sponsoring auction firm shall send
22 the original 45-day permit sponsor card, along with a valid
23 terminated license or other authorization as provided by rule
24 and the appropriate fee, to the OBRE within 24 hours after
25 the issuance of the sponsor card. It is a violation of this
26 Act for any sponsoring auctioneer or sponsoring auction firm
27 to issue a sponsor card to any auctioneer, associate
28 auctioneer, or applicant, unless the auctioneer, associate
29 auctioneer, or applicant presents in hand a valid terminated
30 license or other authorization, as provided by rule.
31 (c) An auctioneer may be self-sponsored or may be
32 sponsored by another licensed auctioneer or auction firm.
33 (d) An associate auctioneer must be sponsored by a
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1 licensed auctioneer or auction firm.
2 (e) When an auctioneer or associate auctioneer
3 terminates his or her employment or association with a
4 sponsoring auctioneer or sponsoring auction firm or the
5 employment or association is terminated by the sponsoring
6 auctioneer or sponsoring auction firm, the terminated
7 licensee shall obtain from that sponsoring auctioneer or
8 sponsoring auction firm his or her license endorsed by the
9 sponsoring auctioneer or sponsoring auction firm indicating
10 the termination. The terminating sponsoring auctioneer or
11 sponsoring auction firm shall send a copy of the terminated
12 license within 5 days after the termination to the OBRE or
13 shall notify the OBRE in writing of the termination and
14 explain why a copy of the terminated license was not
15 surrendered.
16 (f) The license of any auctioneer or associate
17 auctioneer whose association with a sponsoring auctioneer or
18 sponsoring auction firm has terminated shall automatically
19 become inoperative immediately upon such termination, unless
20 the terminated licensee accepts employment or becomes
21 associated with a new sponsoring auctioneer or sponsoring
22 auction firm pursuant to subsection (g) of this Section. An
23 inoperative licensee under this Act shall not conduct an
24 auction or provide auction services while the license is in
25 inoperative status.
26 (g) When a terminated or inoperative auctioneer or
27 associate auctioneer accepts employment or becomes associated
28 with a new sponsoring auctioneer or sponsoring auction firm,
29 the new sponsoring auctioneer or sponsoring auction firm
30 shall send to the OBRE a properly completed 45-day permit
31 sponsor card, the terminated license, and the appropriate
32 fee.
33 Section 10-40. Restoration.
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1 (a) A licensee whose license has lapsed or expired shall
2 have 2 years from the expiration date to restore his or her
3 license without examination. The expired licensee shall make
4 application to the OBRE on forms provided by the OBRE,
5 including a properly completed 45-day permit sponsor card,
6 provide evidence of successful completion of 12 hours of
7 approved continuing education during the period of time the
8 license had lapsed, and pay all lapsed fees and penalties as
9 established by administrative rule.
10 (b) Notwithstanding any other provisions of this Act to
11 the contrary, any licensee whose license under this Act has
12 expired is eligible to restore such license without paying
13 any lapsed fees and penalties provided that the license
14 expired while the licensee was:
15 (1) on active duty with the United States Army,
16 United State Marine Corps, United States Navy, United
17 States Air Force, United States Coast Guard, the State
18 Militia called into service or training;
19 (2) engaged in training or education under the
20 supervision of the United States prior to induction into
21 military service; or
22 (3) serving as an employee of the OBRE, while the
23 employee was required to surrender his or her license due
24 to a possible conflict of interest.
25 A licensee shall be eligible to restore a license under
26 the provisions of this subsection for a period of 2 years
27 following the termination of the service, education, or
28 training by providing a properly completed application and
29 45-day permit sponsor card, provided that the termination
30 was by other than dishonorable discharge and provided that
31 the licensee furnishes the OBRE with an affidavit specifying
32 that the licensee has been so engaged.
33 (c) At any time after the suspension, revocation,
34 placement on probationary status, or other disciplinary
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1 action taken under this Act with reference to any license,
2 the OBRE may restore the license to the licensee without
3 examination upon the order of the Commissioner, if the
4 licensee submits a properly completed application and 45-day
5 permit sponsor card, pays appropriate fees, and otherwise
6 complies with the conditions of the order.
7 Section 10-45. Nonresident auctioneer reciprocity.
8 (a) A person holding a license to engage in auctions
9 issued to him or her by the proper authority of a state,
10 territory, or possession of the United States of America or
11 the District of Columbia that has licensing requirements
12 equal to or substantially equivalent to the requirements of
13 this State and that otherwise meets the requirements of this
14 Act may obtain a license under this Act without examination,
15 provided:
16 (1) that the OBRE has entered into a valid
17 reciprocal agreement with the proper authority of the
18 state, territory, or possession of the United States of
19 America or the District of Columbia from which the
20 nonresident applicant has a valid license;
21 (2) that the applicant provides the OBRE with a
22 certificate of good standing from the applicant's
23 resident state;
24 (3) that the applicant completes and submits an
25 application as provided by the OBRE; and
26 (4) that the applicant pays all applicable fees
27 required under this Act.
28 (b) A nonresident applicant shall file an irrevocable
29 consent with the OBRE that actions may be commenced against
30 the applicant or nonresident licensee in a court of competent
31 jurisdiction in this State by the service of summons,
32 process, or other pleading authorized by the law upon the
33 Commissioner. The consent shall stipulate and agree that
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1 service of the process, summons, or pleading upon the
2 Commissioner shall be taken and held in all courts to be
3 valid and binding as if actual service had been made upon the
4 applicant in Illinois. If a summons, process, or other
5 pleading is served upon the Commissioner, it shall be by
6 duplicate copies, one of which shall be retained by the OBRE
7 and the other immediately forwarded by certified or
8 registered mail to the last known business address of the
9 applicant or nonresident licensee against whom the summons,
10 process, or other pleading may be directed.
11 Section 10-50. Fees. The OBRE shall provide by
12 administrative rule for fees to be paid by applicants,
13 licensees, and schools to cover the reasonable costs of the
14 OBRE in administering and enforcing the provisions of this
15 Act. The OBRE shall provide by administrative rule for fees
16 to be collected from licensees and applicants to cover the
17 statutory requirements for funding the Auctioneer Recovery
18 Fund. The OBRE may also provide by administrative rule for
19 general fees to cover the reasonable expenses of carrying out
20 other functions and responsibilities under this Act.
21 ARTICLE 15. BUSINESS PRACTICES PROVISIONS
22 Section 15-5. Representations. An auctioneer, associate
23 auctioneer, or auction firm or the sponsored licensees,
24 agents, or employees of an auctioneer or auction firm,
25 conducting an auction or providing an auction service shall
26 not:
27 (1) misrepresent a fact material to a purchaser's
28 decision to buy at or by auction;
29 (2) predict specific or immediate increases in the
30 value of any item offered for sale at auction; or
31 (3) materially misrepresent the qualities or
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1 characteristics of any item offered for sale at auction.
2 Section 15-10. Auction contract. Any auctioneer,
3 associate auctioneer, or auction firm shall not conduct an
4 auction or provide an auction service, unless the auctioneer,
5 associate auctioneer, or auction firm enters into a written
6 auction contract with the seller of any property at auction
7 prior to the date of the auction. The agreement shall be
8 signed by the auctioneer, associate auctioneer, or auction
9 firm conducting an auction or providing an auction service
10 and the seller or sellers, or the legal agent of the seller
11 or sellers of the property to be offered at or by auction,
12 and shall include, but not be limited to the following
13 disclosures:
14 (1) Licensees shall disclose:
15 (A) the name, license number, business
16 address, and phone number of the auctioneer,
17 associate auctioneer, or auction firm conducting an
18 auction or providing an auction service;
19 (B) the fee to be paid to the auctioneer,
20 associate auctioneer, or auction firm for conducting
21 an auction or providing an auction service; and
22 (C) an estimate of the advertising costs that
23 shall be paid by the seller or sellers of property
24 at auction and a disclosure that, if the actual
25 advertising costs exceeds 120% of the estimated
26 advertising cost, the auctioneer, associate
27 auctioneer, or auction firm shall pay the
28 advertising costs that exceed 120% of the estimated
29 advertising costs or shall have the seller or
30 sellers agree in writing to pay for the actual
31 advertising costs in excess of 120% of the estimated
32 advertising costs.
33 (2) Sellers shall disclose:
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1 (A) the name, address, and phone number of the
2 seller or sellers or the legal agent of the seller
3 or sellers of property to be sold at auction; and
4 (B) any mortgage, lien, or encumbrance of
5 which the seller has knowledge on any property or
6 goods to be sold or leased at or by auction.
7 Section 15-15. Supervisory duties. The sponsoring
8 auctioneer, auction firm, and managing auctioneer shall have
9 the duty and responsibility to supervise, manage, and control
10 any sponsored licensee, agent, or employee while conducting
11 an auction or providing an auction service. Any violation of
12 this Act by a sponsored licensee, agent, or employee of a
13 sponsoring auctioneer, auction firm, or managing auctioneer
14 shall be deemed to be a violation by the sponsoring
15 auctioneer, auction firm, or managing auctioneer as well as
16 by the sponsored licensee, agent, or employee.
17 Section 15-20. Associate auctioneer. An associate
18 auctioneer shall not conduct an auction or provide an auction
19 service without the proper supervision of a licensed
20 auctioneer or receive compensation for conducting an auction
21 other than from a licensed auctioneer or auction firm. An
22 associate auctioneer shall not work for or receive
23 compensation from another auctioneer or an auction firm other
24 than his or her sponsoring auctioneer or sponsoring auction
25 firm without the written consent of his or her sponsoring
26 auctioneer or sponsoring auction firm. The sponsoring
27 auctioneer or sponsoring auction firm and managing auctioneer
28 shall be responsible for the actions of any sponsored
29 associate auctioneer while conducting an auction or providing
30 an auction service.
31 Section 15-25. Auction firm. No corporation, limited
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1 liability company, or partnership shall be licensed without
2 being managed by a licensed auctioneer. The managing
3 auctioneer of any auction firm shall be responsible for the
4 actions of all licensed and unlicensed employees, agents, and
5 representatives of said auction firm while the firm is
6 conducting an auction or providing an auction service.
7 ARTICLE 20. DISCIPLINARY PROVISIONS
8 Section 20-5. Unlicensed practice; civil penalty.
9 (a) Any person who practices, offers to practice,
10 attempts to practice, or holds oneself out to practice as an
11 auctioneer, an associate auctioneer, an auction firm, or any
12 other licensee under this Act without being licensed under
13 this Act shall, in addition to any other penalty provided by
14 law, pay a civil fine to OBRE in an amount not to exceed
15 $10,000 for each offense as determined by the OBRE. The
16 civil fine shall be assessed by the OBRE after a hearing is
17 held in accordance with the provisions set forth in this Act
18 regarding a hearing for the discipline of a license.
19 (b) The OBRE has the authority and power to investigate
20 any and all unlicensed activity pursuant to this Act.
21 (c) The civil fine shall be paid within 60 days after
22 the effective date of the order imposing the civil fine. The
23 order shall constitute a judgement and may be filed and
24 execution had thereon in the same manner from any court of
25 record.
26 (d) Conducting an auction or providing an auction
27 service in Illinois without holding a valid and current
28 license under this Act is declared to be adverse to the
29 public welfare, to constitute a public nuisance, and to cause
30 irreparable harm to the public welfare. The Commissioner,
31 the Attorney General, the State's Attorney of any county in
32 the State, or any other person may maintain an action in the
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1 name of the People of the State of Illinois and may apply for
2 injunctive relief in any circuit court to enjoin the person
3 or entity from engaging in such practice.
4 Upon the filing of a verified petition in a circuit
5 court, the court, if satisfied by affidavit or otherwise that
6 the person or entity has been engaged in the practice of
7 auctioning without a valid and current license, may enter a
8 temporary restraining order without notice or bond enjoining
9 the defendant from further practice. Only the showing of
10 non-licensure, by affidavit or otherwise, is necessary in
11 order for a temporary injunction to be issued. A copy of the
12 verified complaint shall be served upon the defendant and the
13 proceedings shall thereafter be conducted as in other civil
14 cases except as modified by this Section. If it is
15 established that the defendant has been or is engaged in
16 unlawful practice, the court may enter an order or judgment
17 perpetually enjoining the defendant from further practice.
18 In all proceedings hereunder, the court, in its discretion,
19 may apportion the costs among the parties interested in the
20 action, including cost of filing the complaint, service of
21 process, witness fees and expenses, court reporter charges,
22 and reasonable attorneys' fees. In case of violation of any
23 injunctive order entered under the provisions of this
24 Section, the court may summarily try and punish the offender
25 for contempt of court. These injunction proceedings shall be
26 in addition to, and not in lieu of, all penalties and other
27 remedies provided in this Act.
28 Section 20-10. Violations. The commission of a single
29 act prohibited by this Act or prohibited by the rules
30 promulgated under this Act or a violation of a disciplinary
31 order issued under this Act constitutes a violation of this
32 Act.
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1 Section 20-15. Disciplinary actions; grounds. The OBRE
2 may refuse to issue or renew a license, may place on
3 probation or administrative supervision, suspend, or revoke
4 any license or may reprimand or otherwise discipline or
5 impose a civil fine not to exceed $10,000 upon any licensee
6 hereunder for any one or any combination of the following
7 causes:
8 (1) False or fraudulent representation or material
9 misstatement in furnishing information to the OBRE in
10 obtaining or seeking to obtain a license.
11 (2) Violation of any provision of this Act or the
12 rules promulgated pursuant to this Act.
13 (3) Conviction of any crime, an essential element
14 of which is dishonesty or fraud, or larceny,
15 embezzlement, or obtaining money, property, or credit by
16 false pretenses or by means of a confidence game,
17 conviction in this or another state of a crime that is a
18 felony under the laws of this State, or conviction of a
19 felony in a federal court.
20 (4) Being adjudged to be a person under legal
21 disability or subject to involuntary admission or to meet
22 the standard for judicial admission as provided in the
23 Mental Health and Developmental Disabilities Code.
24 (5) Discipline of a licensee by another state, the
25 District of Columbia, a territory of the United States, a
26 foreign nation, a governmental agency, or any other
27 entity authorized to impose discipline if at least one of
28 the grounds for that discipline is the same as or the
29 equivalent to one of the grounds for discipline set forth
30 in this Act or for failing to report to the OBRE, within
31 30 days, any adverse final action taken against the
32 licensee by any other licensing jurisdiction, government
33 agency, law enforcement agency, or court, or liability
34 for conduct that would constitute grounds for action as
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1 set forth in this Act.
2 (6) Engaging in the practice of auctioneering,
3 conducting an auction, or providing an auction service
4 without a license or after the license was expired,
5 revoked, suspended, or terminated or while the license
6 was inoperative.
7 (7) Attempting to subvert or cheat on the
8 auctioneer exam or any continuing education exam, or
9 aiding or abetting another to do the same.
10 (8) Directly or indirectly giving to or receiving
11 from a person, firm, corporation, partnership, or
12 association a fee, commission, rebate, or other form of
13 compensation for professional service not actually or
14 personally rendered.
15 (9) Making any substantial misrepresentation or
16 untruthful advertising.
17 (10) Making any false promises of a character
18 likely to influence, persuade, or induce.
19 (11) Pursuing a continued and flagrant course of
20 misrepresentation or the making of false promises through
21 a licensee, agent, employee, advertising, or otherwise.
22 (12) Any misleading or untruthful advertising, or
23 using any trade name or insignia of membership in any
24 auctioneer association or organization of which the
25 licensee is not a member.
26 (13) Commingling funds of others with his or her
27 own funds or failing to keep the funds of others in an
28 escrow or trustee account.
29 (14) Failure to account for, remit, or return any
30 moneys, property, or documents coming into his or her
31 possession that belong to others, acquired through the
32 practice of auctioneering, conducting an auction, or
33 providing an auction service within 30 days of the
34 written request from the owner of said moneys, property,
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1 or documents.
2 (15) Failure to maintain and deposit into a special
3 account, separate and apart from any personal or other
4 business accounts, all moneys belonging to others
5 entrusted to a licensee while acting as an auctioneer,
6 associate auctioneer, auction firm, or as a temporary
7 custodian of the funds of others.
8 (16) Failure to make available to OBRE personnel
9 during normal business hours all escrow and trustee
10 records and related documents maintained in connection
11 with the practice of auctioneering, conducting an
12 auction, or providing an auction service within 24 hours
13 after a request from OBRE personnel.
14 (17) Making or filing false records or reports in
15 his or her practice, including but not limited to false
16 records or reports filed with State agencies.
17 (18) Failing to voluntarily furnish copies of all
18 written instruments prepared by the auctioneer and signed
19 by all parties to all parties at the time of execution.
20 (19) Failing to provide information within 30 days
21 in response to a written request made by the OBRE.
22 (20) Engaging in any act that constitutes a
23 violation of Section 2-102, 3-103, or 3- 105 of the
24 Illinois Human Rights Act.
25 (21) Causing a payment from the Auction Recovery
26 Fund.
27 (22) Engaging in dishonorable, unethical, or
28 unprofessional conduct of a character likely to deceive,
29 defraud, or harm the public.
30 (23) Offering or advertising real estate for sale
31 or lease at auction without a valid broker or
32 salesperson's license under the Real Estate License Act
33 of 1983, or any successor Act, unless exempt from
34 licensure under the terms of the Real Estate License Act
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1 of 1983, or any successor Act.
2 Section 20-20. Termination without hearing for failure
3 to pay taxes, child support, or a student loan. OBRE may
4 terminate or otherwise discipline any license issued under
5 this Act without hearing if the appropriate administering
6 agency provides adequate information and proof that the
7 licensee has:
8 (1) failed to file a return, to pay the tax,
9 penalty, or interest shown in a filed return, or to pay
10 any final assessment of tax, penalty, or interest, as
11 required by any tax act administered by the Illinois
12 Department of Revenue until the requirements of the tax
13 act are satisfied;
14 (2) failed to pay any court ordered child support
15 as determined by a court order or by referral from the
16 Illinois Department of Public Aid; or
17 (3) failed to repay any student loan or assistance
18 as determined by the Illinois Student Assistance
19 Commission. If a license is terminated or otherwise
20 disciplined pursuant to this Section, the licensee may
21 request a hearing as provided by this Act within 30 days
22 of notice of termination or discipline.
23 Section 20-25. Investigation. OBRE may investigate the
24 actions or qualifications of any person or persons holding or
25 claiming to hold a license under this Act, who shall
26 hereinafter be called the respondent.
27 Section 20-30. Consent orders. Notwithstanding any
28 provisions concerning the conduct of hearings and
29 recommendations for disciplinary actions, OBRE has the
30 authority to negotiate agreements with licensees and
31 applicants resulting in disciplinary consent orders. The
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1 consent orders may provide for any form of discipline
2 provided for in this Act. The consent orders shall provide
3 that they were not entered into as a result of any coercion
4 by OBRE. Any consent order shall be accepted by or rejected
5 by the Commissioner in a timely manner.
6 Section 20-35. Subpoenas; attendance of witnesses;
7 oaths.
8 (a) OBRE shall have the power to issue subpoenas ad
9 testificandum (subpoena for documents) and to bring before it
10 any persons and to take testimony, either orally or by
11 deposition or both, with the same fees and mileage and in the
12 same manner as prescribed in civil cases in the courts of
13 this State. OBRE shall have the power to issue subpoenas
14 duces tecum and to bring before it any documents, papers,
15 files, books, and records with the same costs and in the same
16 manner as prescribed in civil cases in the courts of this
17 State.
18 (b) Any circuit court may, upon application of OBRE or
19 its designee or of the applicant, licensee, or person holding
20 a certificate of licensure against whom proceedings under
21 this Act are pending, enter an order compelling the
22 enforcement of any OBRE subpoena issued in connection with
23 any hearing or investigation.
24 (c) The Commissioner or his or her designee or the Board
25 shall have power to administer oaths to witnesses at any
26 hearing that OBRE is authorized to conduct and any other
27 oaths authorized in any Act administered by OBRE.
28 Section 20-40. Hearings; record of hearings.
29 (a) OBRE shall have the authority to conduct hearings
30 before the Advisory Board on proceedings to revoke, suspend,
31 place on probation or administrative review, reprimand, or
32 refuse to issue or renew any license under this Act or to
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1 impose a civil penalty not to exceed $10,000 upon any
2 licensee under this Act.
3 (b) OBRE, at its expense, shall preserve a record of all
4 proceedings at the formal hearing of any case involving the
5 discipline of any license under this Act. The notice of
6 hearing, complaint and all other documents in the nature of
7 pleadings and written motions filed in the proceedings, the
8 transcript of testimony, the report of the Board, and the
9 order of OBRE shall be the record of proceeding. At all
10 hearings or prehearing conference, OBRE and the respondent
11 shall be entitled to have a court reporter in attendance for
12 purposes of transcribing the proceeding or prehearing
13 conference.
14 Section 20-45. Notice. OBRE shall (i) notify the
15 respondent in writing at least 30 days prior to the date set
16 for the hearing of any charges made and the time and place
17 for the hearing of the charges to be heard under oath and
18 (ii) inform the respondent that, upon failure to file an
19 answer before the date originally set for the hearing,
20 default will taken against the respondent and the
21 respondent's license may be suspended, revoked, or otherwise
22 disciplined as OBRE may deem proper before taking any
23 disciplinary action with regard to any license under this
24 Act.
25 If the respondent fails to file an answer after receiving
26 notice, the respondent's license may, in the discretion of
27 OBRE, be revoked, suspended, or otherwise disciplined as
28 deemed proper, without a hearing, if the act or acts charged
29 constitute sufficient grounds for such action under this Act.
30 At the time and place fixed in the notice, OBRE shall
31 proceed to hearing of the charges and both the respondent and
32 the complainant shall be accorded ample opportunity to
33 present in person or by counsel such statements, testimony,
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1 evidence, and argument as may be pertinent to the charges or
2 any defense thereto.
3 Section 20-50. Board's findings of fact, conclusions of
4 law, and recommendation to the Commissioner. At the
5 conclusion of the hearing, the Advisory Board shall present
6 to the Commissioner a written report of its findings of
7 facts, conclusions of law, and recommendations regarding
8 discipline or a fine. The report shall contain a finding
9 whether or not the accused person violated this Act or failed
10 to comply with the conditions required in this Act. The
11 Advisory Board shall specify the nature of the violation or
12 failure to comply and shall make its recommendations to the
13 Commissioner.
14 If the Commissioner disagrees in any regard with the
15 report of the Advisory Board, the Commissioner may issue an
16 order in contravention of the report. The Commissioner shall
17 provide a written report to the Advisory Board on any
18 deviation and shall specify with particularity the reasons
19 for that action in the final order.
20 Section 20-55. Motion for rehearing; rehearing. In any
21 hearing involving the discipline of a license, a copy of the
22 Advisory Board's report shall be served upon the respondent
23 by OBRE, either personally or as provided in this Act for the
24 service of the notice of hearing. Within 20 calendar days
25 after the service, the respondent may present to OBRE a
26 motion in writing for a rehearing, which shall specify the
27 particular grounds for rehearing.
28 If no motion for rehearing is filed, then upon the
29 expiration of the time specified for filing a motion, or if a
30 motion for rehearing is denied, then upon denial, the
31 Commissioner may enter an order in accordance with the
32 recommendations of the Advisory Board, except as provided for
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1 in this Act. If the respondent orders a transcript of the
2 record from the reporting service and pays for it within the
3 time for filing a motion for rehearing, the 20 calendar day
4 period within which a motion for rehearing may be filed shall
5 commence upon the delivery of the transcript to the
6 respondent.
7 Whenever the Commissioner is not satisfied that
8 substantial justice has been done in the hearing or in the
9 Advisory Board's report, the Commissioner may order a
10 rehearing by the same.
11 Section 20-60. Order; certified copy. An order or a
12 certified copy of an order, over the seal of OBRE and
13 purporting to be signed by the Commissioner or his or her
14 designee, shall be prima facie proof that:
15 (1) the signature is the genuine signature of the
16 Commissioner or his or her designee;
17 (2) the Commissioner is duly appointed and
18 qualified; and
19 (3) the Advisory Board is duly appointed and
20 qualified.
21 Section 20-65. Restoration of license. At any time
22 after the suspension or revocation of any license, OBRE may
23 restore the license to the accused person upon the written
24 recommendation of the Advisory Board, unless after an
25 investigation and a hearing the Advisory Board determines
26 that restoration is not in the public interest.
27 Section 20-70. Surrender of license. Upon the
28 revocation or suspension of any license the licensee shall
29 immediately surrender the license to OBRE. If the licensee
30 fails to do so, OBRE shall have the right to seize the
31 license.
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1 Section 20-75. Administrative Review Law. All final
2 administrative decisions of OBRE are subject to judicial
3 review under the Administrative Review Law and its rules.
4 The term "administrative decision" is defined as in Section
5 3-101 of the Code of Civil Procedure.
6 Proceedings for judicial review shall be commenced in the
7 circuit court of the county in which the party applying for
8 review resides, but if the party is not a resident of this
9 State, the venue shall be in Cook or Sangamon County.
10 Pending final decision on the review, the acts, orders,
11 sanctions, and rulings of OBRE regarding any license shall
12 remain in full force and effect, unless modified or suspended
13 by a court order pending final judicial decision. OBRE shall
14 not be required to certify any record to the court, file any
15 answer in court, or otherwise appear in any court in a
16 judicial review proceeding, unless there is filed in the
17 court, with the complaint, a receipt from OBRE acknowledging
18 payment of the costs of furnishing and certifying the record.
19 Failure on the part of the plaintiff to file a receipt in
20 court shall be grounds for dismissal of the action.
21 Section 20-80. Summary suspension. The Commissioner may
22 temporarily suspend any license pursuant to this Act, without
23 hearing, simultaneously with the institution of proceedings
24 for a hearing provided for in this Act, if the Commissioner
25 finds that the evidence indicates that the public interest,
26 safety, or welfare requires emergency action. In the event
27 that the Commissioner temporarily suspends any license
28 without a hearing, a hearing shall be held within 30 calendar
29 days after the suspension has begun. The suspended licensee
30 may seek a continuance of the hearing during which the
31 suspension shall remain in effect. The proceeding shall be
32 concluded without appreciable delay.
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1 Section 20-85. Action for compensation; allegation and
2 proof of license. No action or counterclaim shall be
3 maintained by any person in any court in this State with
4 respect to any agreement, contract, or services for which a
5 license is required by this Act or to recover the agreed
6 price or any compensation under any such agreement or for
7 such services for which a license is required by this Act
8 without alleging and proving that the person had a valid
9 license at the time of making such agreement or doing such
10 work.
11 Section 20-90. Cease and desist orders. OBRE may issue
12 cease and desist orders to persons who engage in activities
13 prohibited by this Act. Any person in violation of a cease
14 and desist order obtained by OBRE is subject to all of the
15 remedies provided by law.
16 Section 20-95. Returned checks; fine. A person who
17 delivers a check or other payment to OBRE that is returned to
18 OBRE unpaid by the financial institution upon which it is
19 drawn shall pay to OBRE, in addition to the amount already
20 owed to OBRE, a fee of $50. If the check or other payment
21 was for issuance of a license under this Act and that person
22 conducts an auction or provides an auction service, that
23 person may be subject to discipline for unlicensed practice.
24 OBRE shall notify the person that his or her check has been
25 returned and that the person shall pay to OBRE by certified
26 check or money order the amount of the returned check plus
27 the $50 fee within 30 calendar days after the date of the
28 notification. If, after the expiration of 30 calendar days
29 of the notification, the person has failed to submit the
30 necessary remittance, OBRE shall automatically terminate the
31 license or deny the application without a hearing. If, after
32 termination or denial, the person seeks a license, he or she
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1 shall petition OBRE for restoration and he or she may be
2 subject to additional discipline or fines. The Commissioner
3 may waive the fines due under this Section in individual
4 cases where the Commissioner finds that the fines would be
5 unreasonable or unnecessarily burdensome.
6 ARTICLE 25. SCHOOL AND CONTINUING EDUCATION PROVISIONS
7 Section 25-5. Continuing education.
8 (a) For each pre-renewal period, each auctioneer and
9 associate auctioneer who makes application to renew his or
10 her license must successfully complete auction continuing
11 education courses approved by the Advisory Board and OBRE
12 from a school approved by the Advisory Board and OBRE.
13 (b) Each renewal applicant shall successfully complete
14 12 hours of continuing education, of which at least 6 hours
15 shall be mandatory core subjects in the following categories:
16 (1) Illinois statutes and rules governing
17 auctioneering;
18 (2) federal statutes and regulations governing
19 auctioneering;
20 (3) auctioneering ethics;
21 (4) escrow and trust accounts;
22 (5) contracts; and
23 (6) other subject matter approved by the Board and
24 established by rule.
25 (c) Each renewal applicant may satisfy the remaining 6
26 hours of continuing education from the mandatory core
27 subjects from the categories as provided in subsection (b) or
28 successfully complete an additional 6 hours of continuing
29 education in the following elective subject categories:
30 (1) agency;
31 (2) business courses related to auctioneering;
32 (3) real estate related courses;
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1 (4) auction management;
2 (5) bid calling;
3 (6) public speaking;
4 (7) advertising;
5 (8) specialty auction courses; or
6 (9) other subject matter approved by the Board and
7 established by rule.
8 (d) Every licensee shall personally take and pass an
9 examination after each continuing education course, as
10 provided by rule. For the purposes of this Section, 70%
11 shall be deemed a passing score.
12 Section 25-10. School license; requirements;
13 application.
14 (a) Only schools approved by the Board and OBRE may
15 provide approved continuing education.
16 (b) Schools seeking to be approved as continuing
17 education schools shall provide satisfactory proof of the
18 following:
19 (1) a sound financial base for establishing,
20 promoting, and delivering the necessary courses;
21 (2) a sufficient number of qualified instructors;
22 (3) adequate support personnel to assist with
23 administrative matters and technical assistance;
24 (4) a written policy dealing with procedures for
25 the management of grievances and fee refunds;
26 (5) a qualified school administrator, who is
27 responsible for the administration of the school and the
28 actions of instructors; and
29 (6) any other requirements as provided by rule.
30 (c) All schools shall provide each successful course
31 participants with a certificate of completion signed by the
32 school administrator containing the following information:
33 (1) the name, address, and license number of the
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1 school;
2 (2) the name, address, social security number, and
3 license number of the successful participant;
4 (3) the name of the course, which describes the
5 subject matter thereof;
6 (4) the number of approved credit hours and whether
7 the course is from the mandatory or elective category;
8 (5) the date the course was completed; and
9 (6) other information as required and provided by
10 rule.
11 (d) All schools shall provide to OBRE a monthly roster
12 of all successful participants containing:
13 (1) the name, address, and license number of the
14 school;
15 (2) the name, address, social security, and license
16 number of the successful participants;
17 (3) the name of the course, which describes the
18 subject matter thereof, and the license number of the
19 course;
20 (4) the number of approved credit hours and whether
21 the course is from the mandatory or elective category;
22 (5) the date the course was completed; and
23 (6) other information as required and in a format
24 as provided by rule.
25 (e) All schools shall make application to OBRE on forms
26 provided by OBRE and pay the appropriate fee for a school
27 license. A school license shall expire on December 31 of
28 each odd numbered year. A school shall make application to
29 the OBRE on forms provided by OBRE and pay the appropriate
30 fee as provided by rule for a renewal license.
31 (f) A school license may be disciplined as provided by
32 rule.
33 Section 25-15. Course approval; license. A school may
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1 submit courses for approval by the Advisory Board and OBRE.
2 The criteria and information for course approval shall be
3 established by rule. For each course that is approved as a
4 continuing education course, OBRE shall issue a license to
5 the school for the course. Approved course licenses shall
6 expire on December 31 of odd number years along with the
7 school license.
8 ARTICLE 30. ADMINISTRATIVE PROVISIONS
9 Section 30-5. OBRE; powers and duties. The OBRE shall
10 exercise the powers and duties prescribed by the Civil
11 Administrative Code of Illinois for the administration of
12 licensing acts and shall exercise such other powers and
13 duties as prescribed by this Act. The OBRE may contract with
14 third parties for services necessary for the proper
15 administration of this Act.
16 Section 30-10. Rules. OBRE, after notifying and
17 considering the recommendations of the Advisory Board, if
18 any, shall adopt any rules that may be necessary for the
19 administration, implementation and enforcement of this Act.
20 Section 30-15. Auction Regulation Administration Fund.
21 A special fund to be known as the Auction Regulation
22 Administration Fund is created in the State Treasury. All
23 fees received by the OBRE under this Act shall be deposited
24 into the Auction Regulation Administration Fund. Subject to
25 appropriation, the moneys deposited into the Auction
26 Regulation Administration Fund shall be used by the OBRE for
27 the administration of this Act. Moneys in the Auction
28 Regulation Administration Fund may be invested and reinvested
29 in the same manner as authorized for pension funds in Article
30 14 of the Illinois Pension Code. All earnings, interest, and
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1 dividends received from investment of funds in the Auction
2 Regulation Administration Fund shall be deposited into the
3 Auction Regulation Administration Fund and shall be used for
4 the same purposes as other moneys deposited in the Auction
5 Regulation Administration Fund.
6 This fund shall be created on July 1, 1999. The State
7 Treasurer shall cause a transfer of $300,000 to the Auction
8 Regulation Administration Fund from the Real Estate License
9 Administration Fund on August 1, 1999. The State Treasurer
10 shall cause a transfer of $200,000 on August 1, 2000 and a
11 transfer of $100,000 on January 1, 2002 from the Auction
12 Regulation Administration Fund to the Real Estate License
13 Administration Fund, or if there is a sufficient fund balance
14 in the Auction Regulation Administration Fund to properly
15 administer this Act, the OBRE may recommend to the State
16 Treasurer to cause a transfer from the Auction Regulation
17 Administration Fund to the Real Estate License Administration
18 Fund on a date and in an amount which is accelerated, but not
19 less than set forth in this Section. In addition to the
20 license fees required under this Act, each initial applicant
21 for licensure under this Act shall pay to the OBRE an
22 additional $100 for deposit into the Auction Regulation
23 Administration Fund for a period of 2 years or until such
24 time the original transfer amount to the Auction Regulation
25 Administration Fund from the Real Estate License
26 Administration Fund is repaid.
27 Upon completion of any audit of the OBRE as prescribed by
28 the Illinois State Auditing Act, which includes an audit of
29 the Auction Regulation Administration Fund, the OBRE shall
30 make the audit open to inspection by any interested party.
31 Section 30-20. Auction Recovery Fund. A special fund to
32 be known as the Auction Recovery Fund is created in the State
33 Treasury. The moneys in the Auction Recovery Fund shall be
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1 used by the OBRE exclusively for carrying out the purposes
2 established pursuant to the provisions of Section 30-35 of
3 this Act.
4 The sums received by the OBRE pursuant to the provisions
5 of Sections 20-5 through Sections 20-20 of this Act shall be
6 deposited into the State Treasury and held in the Auction
7 Recovery Fund. In addition to the license fees required
8 under this Act, each initial and renewal applicant shall pay
9 to the OBRE an additional $25 for deposit into the Auction
10 Recovery Fund for a period of 2 years after the effective
11 date of this Act. After such time the Auction Regulation
12 Administration Fund has totally repaid the Real Estate
13 License Administration Fund, the State Treasurer shall cause
14 a transfer of $50,000 from the Auction Regulation
15 Administration Fund to the Auction Recovery Fund annually on
16 January 1 so as to sustain a minimum balance of $400,000 in
17 the Auction Recovery Fund. If the fund balance in the
18 Auction Recovery Fund on January 1 of any year after 2002 is
19 less than $100,000, in addition to the renewal license fee
20 required under this Act, each renewal applicant shall pay the
21 OBRE an additional $25 fee for deposit into the Auction
22 Recovery Fund.
23 The funds held in the Auction Recovery Fund may be
24 invested and reinvested in the same manner as funds in the
25 Auction Regulation Administration Fund. All earnings
26 received from investment may be deposited into the Auction
27 Recovery Fund and may be used for the same purposes as other
28 moneys deposited into the Auction Recovery Fund or may be
29 deposited into the Auction Education Fund as provided in
30 Section 30-25 of this Act and as established by rule.
31 Section 30-25. Auction Education Fund. A special fund
32 to be known as the Auction Education Fund is created in the
33 State Treasury. The Auction Education Fund shall be
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1 administered by OBRE. Subject to appropriation, moneys
2 deposited into the Auction Education Fund may be used for the
3 advancement of education in the auction industry, as
4 established by rule. The moneys deposited in the Auction
5 Education Fund may be invested and reinvested in the same
6 manner as funds in the Auction Regulation Administration
7 Fund. All earnings received from investment shall be
8 deposited into the Auction Education Fund and may be used for
9 the same purposes as other moneys deposited into the Auction
10 Education Fund.
11 Section 30-30. Auction Advisory Board.
12 (a) There is hereby created the Auction Advisory Board.
13 The Advisory Board shall consist of 7 members and shall be
14 appointed by the Commissioner. In making the appointments,
15 the Commissioner shall give due consideration to the
16 recommendations by members and organizations of the industry,
17 including but not limited to the Illinois State Auctioneers
18 Association. Four members of the Advisory Board shall be
19 licensed auctioneers, except that for the initial
20 appointments, these members may be persons without a license,
21 but who have been auctioneers for at least 5 years preceding
22 their appointment to the Advisory Board. One member shall be
23 a public member who represents the interests of consumers and
24 who is not licensed under this Act or the spouse of a person
25 licensed under this Act or who has any responsibility for
26 management or formation of policy of or any financial
27 interest in the auctioneering profession or any other
28 connection with the profession. One member shall be actively
29 engaged in the real estate industry and licensed as a broker
30 or salesperson. One member shall be the Director of Auction
31 Regulation, ex-officio, and shall serve as the Chairperson of
32 the Advisory Board.
33 (b) Members shall be appointed for a term of 4 years,
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1 except that of the initial appointments, 3 members shall be
2 appointed to serve a term of 3 years and 4 members shall be
3 appointed to serve a term of 4 years, including the Director.
4 The Commissioner shall fill a vacancy for the remainder of
5 any unexpired term. Each member shall serve on the Advisory
6 Board until his or her successor is appointed and qualified.
7 No person shall be appointed to serve more than 2 terms,
8 including the unexpired portion of a term due to vacancy. To
9 the extent practicable, the Commissioner shall appoint
10 members to insure that the various geographic regions of the
11 State are properly represented on the Advisory Board.
12 (c) A majority of the Advisory Board members currently
13 appointed shall constitute a quorum. A vacancy in the
14 membership of the Advisory Board shall not impair the right
15 of a quorum to exercise all of the rights and perform all the
16 duties of the Board.
17 (d) Each member of the Advisory Board shall receive a
18 per diem stipend in an amount to be determined by the
19 Commissioner. Each member shall be paid his or her necessary
20 expenses while engaged in the performance of his or her
21 duties.
22 (e) Members of the Advisory Board shall be immune from
23 suit in an action based upon any disciplinary proceedings or
24 other acts performed in good faith as members of the Advisory
25 Board.
26 (f) The Advisory Board shall meet monthly or as convened
27 by the Chairperson.
28 (g) The Advisory Board shall advise the OBRE on matters
29 of licensing and education and make recommendations to the
30 OBRE on those matters and shall hear and make recommendations
31 to the Commissioner on disciplinary matters that require a
32 formal evidentiary hearing.
33 (h) The Commissioner shall give due consideration to all
34 recommendations of the Advisory Board.
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1 Section 30-35. Director of Auction Regulation. The
2 Commissioner shall appoint a Director of Auction Regulation
3 in the OBRE for a term of 4 years. The Director shall hold a
4 valid auctioneer license under this Act, which shall be
5 surrendered to OBRE during his or her appointment, except for
6 the initial appointment. During the initial appointment, the
7 Director may be a person without a license who has been an
8 auctioneer for at least 5 years and who has sufficient
9 experience and knowledge in public administration. The
10 Director of Auction Regulation shall report to the
11 Commissioner and shall do the following:
12 (1) act as Chairperson of the Advisory Board,
13 ex-officio;
14 (2) be the direct liaison between OBRE, the
15 profession; and the auction organizations and
16 associations;
17 (3) prepare and circulate to licensees such
18 educational and informational material as the OBRE deems
19 necessary for providing guidance or assistance to
20 licensees;
21 (4) appoint any necessary committees to assist in
22 the performance of the functions and duties of the OBRE
23 under this Act; and
24 (5) subject to the administrative approval of the
25 Commissioner, supervise the Auction Regulation division
26 of OBRE.
27 In appointing the Director of Auction Regulation, the
28 Commissioner shall give due consideration to recommendations
29 by members and organizations of the auction industry.
30 Section 30-40. Auction Recovery Fund; recovery; actions;
31 procedures. The OBRE shall maintain an Auction Recovery Fund
32 from which any person aggrieved by an act, representation,
33 transaction, or the conduct of a duly licensed auctioneer,
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1 associate auctioneer or auction firm that constitutes a
2 violation of this Act or the regulations promulgated pursuant
3 thereto or that constitutes embezzlement of money or
4 property or results in money or property being unlawfully
5 obtained from any person by false pretenses, artifice,
6 trickery, or forgery or by reason of any fraud,
7 misrepresentation, discrimination or deceit by or on the part
8 of any licensee or the unlicensed employee of any auctioneer,
9 associate auctioneer, or auction firm and that results in a
10 loss of actual cash money as opposed to losses in market
11 value, may recover. The aggrieved person may recover, by
12 order of the circuit court of the county where the violation
13 occurred, an amount of not more than $10,000 from the fund
14 for damages sustained by the act, representation,
15 transaction, or conduct, together with the costs of suit and
16 attorneys' fees incurred in connection therewith of not to
17 exceed 15% of the amount of the recovery ordered paid from
18 the Fund. However, no licensed auctioneer, associate
19 auctioneer, or auction firm may recover from the Fund, unless
20 the court finds that the person suffered a loss resulting
21 from intentional misconduct. The court order shall not
22 include interest on the judgment.
23 The maximum liability against the Fund arising out of any
24 one act by any auctioneer, associate auctioneer, or auction
25 firm shall be $50,000, and the judgment order shall spread
26 the award equitably among all aggrieved persons.
27 Section 30-45. Auction Recovery Fund; collection.
28 (a) No action for a judgment that subsequently results
29 in an order for collection from the Auction Recovery Fund
30 shall be started later than 2 years after the date on which
31 the aggrieved person knew or, through the use of reasonable
32 diligence, should have known of the acts or omissions giving
33 rise to a right of recovery from the Auction Recovery Fund.
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1 (b) When any aggrieved person commences action for a
2 judgment that may result in collection from the Auction
3 Recovery Fund, the aggrieved person must name as parties to
4 that action any and all individual auctioneers, associate
5 auctioneers, auction firms, or their employees or agents who
6 allegedly committed or are responsible for acts or omissions
7 giving rise to a right of recovery from the Auction Recovery
8 Fund. Failure to name these individuals as parties shall
9 preclude recovery from the Auction Recovery Fund of any
10 portion of the judgment received in the action.
11 (c) When any aggrieved person commences action for a
12 judgment that may result in collection from the Auction
13 Recovery Fund, the aggrieved person must notify OBRE in
14 writing to this effect at the time of the commencement of the
15 action. Failure to so notify OBRE shall preclude recovery
16 from the Auction Recovery Fund of any portion of the judgment
17 received in the action. After receiving notice of the
18 commencement of such an action, OBRE, upon timely
19 application, shall be permitted to intervene as a party to
20 that action.
21 (d) When an aggrieved party commences action for a
22 judgment that may result in collection from the Auction
23 Recovery Fund and the court in which the action is commenced
24 enters judgment by default against the defendant and in favor
25 of the aggrieved party, the court shall, upon motion of OBRE,
26 set aside that judgment by default. After a judgment by
27 default has been set aside, OBRE shall appear as a party to
28 that action and thereafter the court shall require proof of
29 the allegations in the pleading upon which relief is sought.
30 (e) The aggrieved person shall give written notice to
31 OBRE within 30 days after the entry of any judgment that may
32 result in collection from the Auction Recovery Fund. That
33 aggrieved person shall provide OBRE 20 days written notice of
34 all supplementary proceeding so as to allow OBRE to
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1 participate in all efforts to collect on the judgment.
2 (f) When any aggrieved person recovers a valid judgment
3 in any court of competent jurisdiction against any licensee
4 or an unlicensed employee or agent of any licensee on the
5 grounds of fraud, misrepresentation, discrimination, or
6 deceit, the aggrieved person may, upon the termination of all
7 proceedings, including review and appeals in connection with
8 the judgment, file a verified claim in the court in which the
9 judgment was entered and, upon 30 days written notice to OBRE
10 and to the person against whom the judgment was obtained, may
11 apply to the court for an order directing payment out of the
12 Auction Recovery Fund of the amount unpaid upon the judgment,
13 not including interest on the judgment, and subject to the
14 limitation stated in Section 30-40 of this Act. The
15 aggrieved person must set out in that verified claim and at
16 an evidentiary hearing to be held by the court that the
17 aggrieved person:
18 (1) is not the spouse of the debtor or the personal
19 representative of the spouse;
20 (2) has complied with all the requirements of this
21 Section;
22 (3) has obtained a judgment stating the amount
23 thereof and the amount owing thereon, not including
24 interest thereon, at the date of the application;
25 (4) has made all reasonable searches and inquiries
26 to ascertain whether the judgment debtor possesses real
27 or personal property or other assets which may be sold or
28 applied in satisfaction of the judgment;
29 (5) has discovered no personal or real property or
30 other assets liable to be sold or applied, or has
31 discovered certain of them, describing them owned by the
32 judgment debtor and liable to be so applied, and has
33 taken all necessary action and proceeding for the
34 realization thereof, and the amount thereby realized was
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1 insufficient to satisfy the judgment, stating the amount
2 so realized and the balance remaining due on the judgment
3 after application of the amount realized;
4 (6) has diligently pursued all remedies against all
5 the judgment debtors and all other persons liable to the
6 aggrieved person in the transaction for which recovery is
7 sought from the Auction Recovery Fund.
8 (7) has filed an adversary action to have the debts
9 declared non-dischargeable in any bankruptcy petition
10 matter filed by any judgment debtor or person liable to
11 the aggrieved person. The aggrieved person shall also be
12 required to prove the amount of attorney's fees sought to
13 be recovered and the reasonableness of those fees up to
14 the maximum allowed pursuant to Section 30-40 of this
15 Act.
16 (g) The court shall make an order directed to OBRE
17 requiring payment from the Auction Recovery Fund of whatever
18 sum it finds to be payable upon the claim, pursuant to and in
19 accordance with the limitations contained in Section 30-40 of
20 this Act, if the court is satisfied, upon the hearing, of the
21 truth of all matters required to be shown by the aggrieved
22 person by subsection (f) of this Section and that the
23 aggrieved person has fully pursued and exhausted all remedies
24 available for recovering the amount awarded by the judgment
25 of the court.
26 (h) If the OBRE pays from the Auction Recovery Fund any
27 amount in settlement of a claim or toward satisfaction of a
28 judgment against any licensee, or employee or agent of any
29 licensee, the license of said licensee shall be automatically
30 terminated without hearing upon the issuance of a court order
31 authorizing payment from the Auction Recovery Fund. No
32 petition for restoration of the license shall be heard until
33 repayment of the amount paid from the Auction Recovery Fund
34 on their account has been made in full, plus interest at the
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1 rate prescribed in Section 12-109 of Code of Civil Procedure.
2 A discharge in bankruptcy shall not relieve a person from the
3 penalties and disabilities provided in this subsection.
4 (i) If, at any time, the money deposited in the Auction
5 Recovery Fund is insufficient to satisfy any duly authorized
6 claim or portion thereof, OBRE shall, when sufficient money
7 has been deposited in the Auction Recovery Fund, satisfy such
8 unpaid claims or portions thereof, in the order that the
9 claims or portions thereof were originally filed, plus
10 accumulated interest at the rate prescribed in Section 12-109
11 of the Code of Civil Procedure.
12 Section 30-50. Contractual agreements. The OBRE may
13 enter into contractual agreements with third parties to carry
14 out the provisions of this Act.
15 Section 30-55. Reciprocal agreements. The OBRE shall
16 have the authority to enter into reciprocal licensing
17 agreements with the proper authority of a state, territory,
18 or possession of the United States or the District of
19 Columbia having licensing requirements equal to or
20 substantially equivalent to the requirements of this State.
21 ARTICLE 950. AMENDATORY PROVISIONS
22 Section 950-5. The Regulatory Sunset Act is amended by
23 adding Section 4.20 as follows:
24 (5 ILCS 80/4.20 new)
25 Sec. 4.20. Act repealed on January 1, 2010. The
26 following Act is repealed on January 1, 2010:
27 The Auction License Act.
28 Section 950-10. The State Finance Act is amended by
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1 adding Sections 5.490, 5.491, and 5.492 as follows:
2 (30 ILCS 105/5.490 new)
3 Sec. 5.490. The Auction Regulation Administration Fund.
4
5 (30 ILCS 105/5.491 new)
6 Sec. 5.491. The Auction Recovery Fund.
7 (30 ILCS 105/5.492 new)
8 Sec. 5.492. The Auction Education Fund.
9 Section 950-15. If and only if House Bill 902 of the
10 91st General Assembly becomes law, the Real Estate License
11 Act of 1999 is amended by changing Sections 1-10 and 5-20 as
12 follows:
13 (91HB0902, Sec. 1-10)
14 Sec. 1-10. Definitions. In this Act, unless the context
15 otherwise requires:
16 "Act" means the Real Estate License Act of 1999.
17 "Advisory Council" means the Real Estate Education
18 Advisory Council created under Section 30-10 of this Act.
19 "Agency" means a relationship in which a real estate
20 broker or licensee, whether directly or through an affiliated
21 licensee, represents a consumer by the consumer's consent,
22 whether express or implied, in a real property transaction.
23 "Applicant" means any person, as defined in this Section,
24 who applies to OBRE for a valid license as a real estate
25 broker, real estate salesperson, or leasing agent.
26 "Blind advertisement" means any real estate advertisement
27 that does not include the sponsoring broker's business name
28 and that is used by any licensee regarding the sale or lease
29 of real estate, including his or her own, licensed
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1 activities, or the hiring of any licensee under this Act.
2 The broker's business name in the case of a franchise shall
3 include the franchise affiliation as well as the name of the
4 individual firm.
5 "Board" means the Real Estate Administration and
6 Disciplinary Board of OBRE.
7 "Branch office" means a sponsoring broker's office other
8 than the sponsoring broker's principal office.
9 "Broker" means an individual, partnership, limited
10 liability company, corporation, or registered limited
11 liability partnership other than a real estate salesperson or
12 leasing agent who for another and for compensation either
13 directly or indirectly:
14 (1) Sells, exchanges, purchases, rents, or leases
15 real estate.
16 (2) Offers to sell, exchange, purchase, rent, or
17 lease real estate.
18 (3) Negotiates, offers, attempts, or agrees to
19 negotiate the sale, exchange, purchase, rental, or
20 leasing of real estate.
21 (4) Lists, offers, attempts, or agrees to list real
22 estate for sale, lease, or exchange.
23 (5) Buys, sells, offers to buy or sell, or
24 otherwise deals in options on real estate or improvements
25 thereon.
26 (6) Supervises the collection, offer, attempt, or
27 agreement to collect rent for the use of real estate.
28 (7) Advertises or represents himself or herself as
29 being engaged in the business of buying, selling,
30 exchanging, renting, or leasing real estate.
31 (8) Assists or directs in procuring or referring of
32 prospects, intended to result in the sale, exchange,
33 lease, or rental of real estate.
34 (9) Assists or directs in the negotiation of any
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1 transaction intended to result in the sale, exchange,
2 lease, or rental of real estate.
3 (10) Opens real estate to the public for marketing
4 purposes.
5 (11) Sells, leases, or offers for sale or lease
6 real estate at auction.
7 "Brokerage agreement" means a written or oral agreement
8 between a sponsoring broker and a consumer for licensed
9 activities to be provided to a consumer in return for
10 compensation or the right to receive compensation from
11 another. Brokerage agreements may constitute either a
12 bilateral or a unilateral agreement between the broker and
13 the broker's client depending upon the content of the
14 brokerage agreement. All exclusive brokerage agreements shall
15 be in writing.
16 "Client" means a person who is being represented by a
17 licensee.
18 "Commissioner" means the Commissioner of Banks and Real
19 Estate or a person authorized by the Commissioner, the Office
20 of Banks and Real Estate Act, or this Act to act in the
21 Commissioner's stead.
22 "Compensation" means the valuable consideration given by
23 one person or entity to another person or entity in exchange
24 for the performance of some activity or service.
25 Compensation shall include the transfer of valuable
26 consideration, including without limitation the following:
27 (1) commissions;
28 (2) referral fees;
29 (3) bonuses;
30 (4) prizes;
31 (5) merchandise;
32 (6) finder fees;
33 (7) performance of services;
34 (8) coupons or gift certificates;
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1 (9) discounts;
2 (10) rebates;
3 (11) a chance to win a raffle, drawing, lottery, or
4 similar game of chance not prohibited by any other law or
5 statute;
6 (12) retainer fee; or
7 (13) salary.
8 "Confidential information" means information obtained by
9 a licensee from a client during the term of a brokerage
10 agreement that (i) was made confidential by the written
11 request or written instruction of the client, (ii) deals with
12 the negotiating position of the client, or (iii) is
13 information the disclosure of which could materially harm the
14 negotiating position of the client, unless at any time:
15 (1) the client permits the disclosure of
16 information given by that client by word or conduct;
17 (2) the disclosure is required by law; or
18 (3) the information becomes public from a source
19 other than the licensee.
20 "Confidential information" shall not be considered to
21 include material information about the physical condition of
22 the property.
23 "Consumer" means a person or entity seeking or receiving
24 licensed activities.
25 "Continuing education school" means any person licensed
26 by OBRE as a school for continuing education in accordance
27 with Section 30-15 of this Act.
28 "Credit hour" means 50 minutes of classroom instruction
29 in course work that meets the requirements set forth in rules
30 adopted by OBRE.
31 "Customer" means a consumer who is not being represented
32 by the licensee but for whom the licensee is performing
33 ministerial acts.
34 "Designated agency" means a contractual relationship
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1 between a sponsoring broker and a client under Section 15-50
2 of this Act in which one or more licensees associated with or
3 employed by the broker are designated as agent of the client.
4 "Designated agent" means a sponsored licensee named by a
5 sponsoring broker as the legal agent of a client, as provided
6 for in Section 15-50 of this Act.
7 "Director" means the Director of the Real Estate
8 Division, OBRE.
9 "Dual agency" means an agency relationship in which a
10 licensee is representing both buyer and seller or both
11 landlord and tenant in the same transaction. When the agency
12 relationship is a designated agency, the question of whether
13 there is a dual agency shall be determined by the agency
14 relationships of the designated agent of the parties and not
15 of the sponsoring broker.
16 "Employee" or other derivative of the word "employee",
17 when used to refer to, describe, or delineate the
18 relationship between a real estate broker and a real estate
19 salesperson, another real estate broker, or a leasing agent,
20 shall be construed to include an independent contractor
21 relationship, provided that a written agreement exists that
22 clearly establishes and states the relationship. All
23 responsibilities of a broker shall remain.
24 "Escrow moneys" means all moneys, promissory notes or any
25 other type or manner of legal tender or financial
26 consideration deposited with any person for the benefit of
27 the parties to the transaction. A transaction exists once an
28 agreement has been reached and an accepted real estate
29 contract signed or lease agreed to by the parties. Escrow
30 moneys includes without limitation earnest moneys and
31 security deposits, except those security deposits in which
32 the person holding the security deposit is also the sole
33 owner of the property being leased and for which the security
34 deposit is being held.
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1 "Inoperative" means a status of licensure where the
2 licensee holds a current license under this Act, but the
3 licensee is prohibited from engaging in licensed activities
4 because the licensee is unsponsored or the license of the
5 sponsoring broker with whom the licensee is associated or by
6 whom he or she is employed is currently expired, revoked,
7 suspended, or otherwise rendered invalid under this Act.
8 "Leasing Agent" means a person who is employed by a real
9 estate broker to engage in licensed activities limited to
10 leasing residential real estate who has obtained a license as
11 provided for in Section 5-5 of this Act.
12 "License" means the document issued by OBRE certifying
13 that the person named thereon has fulfilled all requirements
14 prerequisite to licensure under this Act.
15 "Licensed activities" means those activities listed in
16 the definition of "broker" under this Section.
17 "Licensee" means any person, as defined in this Section,
18 who holds a valid unexpired license as a real estate broker,
19 real estate salesperson, or leasing agent.
20 "Listing presentation" means a communication between a
21 real estate broker or salesperson and a consumer in which the
22 licensee is attempting to secure a brokerage agreement with
23 the consumer to market the consumer's real estate for sale or
24 lease.
25 "Managing broker" means a broker who has supervisory
26 responsibilities for licensees in one or, in the case of a
27 multi-office company, more than one office and who has been
28 appointed as such by the sponsoring broker of the real estate
29 firm.
30 "Medium of advertising" means any method of communication
31 intended to influence the general public to use or purchase a
32 particular good or service or real estate.
33 "Ministerial acts" means those acts that a licensee may
34 perform for a consumer that are informative or clerical in
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1 nature and do not rise to the level of active representation
2 on behalf of a consumer. Examples of these acts include
3 without limitation (i) responding to phone inquiries by
4 consumers as to the availability and pricing of brokerage
5 services, (ii) responding to phone inquiries from a consumer
6 concerning the price or location of property, (iii) attending
7 an open house and responding to questions about the property
8 from a consumer, (iv) setting an appointment to view
9 property, (v) responding to questions of consumers walking
10 into a licensee's office concerning brokerage services
11 offered or particular properties, (vi) accompanying an
12 appraiser, inspector, contractor, or similar third party on a
13 visit to a property, (vii) describing a property or the
14 property's condition in response to a consumer's inquiry,
15 (viii) completing business or factual information for a
16 consumer on an offer or contract to purchase on behalf of a
17 client, (ix) showing a client through a property being sold
18 by an owner on his or her own behalf, or (x) referral to
19 another broker or service provider.
20 "OBRE" means the Office of Banks and Real Estate.
21 "Office" means a real estate broker's place of business
22 where the general public is invited to transact business and
23 where records may be maintained and licenses displayed,
24 whether or not it is the broker's principal place of
25 business.
26 "Person" means and includes individuals, entities,
27 corporations, limited liability companies, registered limited
28 liability partnerships, and partnerships, foreign or
29 domestic, except that when the context otherwise requires,
30 the term may refer to a single individual or other described
31 entity.
32 "Personal assistant" means a licensed or unlicensed
33 person who has been hired for the purpose of aiding or
34 assisting a sponsored licensee in the performance of the
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1 sponsored licensee's job.
2 "Pocket card" means the card issued by OBRE to signify
3 that the person named on the card is currently licensed under
4 this Act.
5 "Pre-license school" means a school licensed by OBRE
6 offering courses in subjects related to real estate
7 transactions, including the subjects upon which an applicant
8 is examined in determining fitness to receive a license.
9 "Pre-renewal period" means the period between the date of
10 issue of a currently valid license and the license's
11 expiration date.
12 "Real estate" means and includes leaseholds as well as
13 any other interest or estate in land, whether corporeal,
14 incorporeal, freehold, or non-freehold and whether the real
15 estate is situated in this State or elsewhere.
16 "Real Estate Administration and Disciplinary Board" or
17 "Board" means the Real Estate Administration and Disciplinary
18 Board created by Section 25-10 of this Act.
19 "Salesperson" means any individual, other than a real
20 estate broker or leasing agent, who is employed by a real
21 estate broker or is associated by written agreement with a
22 real estate broker as an independent contractor and
23 participates in any activity described in the definition of
24 "broker" under this Section.
25 "Sponsoring broker" means the broker who has issued a
26 sponsor card to a licensed salesperson, another licensed
27 broker, or a leasing agent.
28 "Sponsor card" means the temporary permit issued by the
29 sponsoring real estate broker certifying that the real estate
30 broker, real estate salesperson, or leasing agent named
31 thereon is employed by or associated by written agreement
32 with the sponsoring real estate broker, as provided for in
33 Section 5-40 of this Act.
34 (Source: 91HB0902 as introduced.)
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1 (91HB0902, Sec. 5-20)
2 Sec. 5-20. Exemptions from broker, salesperson, or
3 leasing agent license requirement. The requirement for
4 holding a license under this Article 5 shall not apply to:
5 (1) Any person, partnership, or corporation that as
6 owner or lessor performs any of the acts described in the
7 definition of "broker" under Section 1-10 of this Act with
8 reference to property owned or leased by it, or to the
9 regular employees thereof with respect to the property so
10 owned or leased, where such acts are performed in the regular
11 course of or as an incident to the management, sale, or other
12 disposition of such property and the investment therein,
13 provided that such regular employees do not perform any of
14 the acts described in the definition of "broker" under
15 Section 1-10 of this Act in connection with a vocation of
16 selling or leasing any real estate or the improvements
17 thereon not so owned or leased.
18 (2) An attorney in fact acting under a duly executed and
19 recorded power of attorney to convey real estate from the
20 owner or lessor or the services rendered by an attorney at
21 law in the performance of the attorney's duty as an attorney
22 at law.
23 (3) Any person acting as receiver, trustee in
24 bankruptcy, administrator, executor, or guardian or while
25 acting under a court order or under the authority of a will
26 or testamentary trust.
27 (4) Any person acting as a resident manager for the
28 owner or any employee acting as the resident manager for a
29 broker managing an apartment building, duplex, or apartment
30 complex, when the resident manager resides on the premises,
31 the premises is his or her primary residence, and the
32 resident manager is engaged in the leasing of the property of
33 which he or she is the resident manager.
34 (5) Any officer or employee of a federal agency in the
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1 conduct of official duties.
2 (6) Any officer or employee of the State government or
3 any political subdivision thereof performing official duties.
4 (7) Any multiple listing service or other information
5 exchange that is engaged in the collection and dissemination
6 of information concerning real estate available for sale,
7 purchase, lease, or exchange along with which no other
8 licensed activities are provided.
9 (8) Railroads and other public utilities regulated by
10 the State of Illinois, or the officers or full time employees
11 thereof, unless the performance of any licensed activities is
12 in connection with the sale, purchase, lease, or other
13 disposition of real estate or investment therein not needing
14 the approval of the appropriate State regulatory authority.
15 (9) Any medium of advertising in the routine course of
16 selling or publishing advertising along with which no other
17 licensed activities are provided.
18 (10) Any resident lessee of a residential dwelling unit
19 who refers for compensation to the owner of the dwelling
20 unit, or to the owner's agent, prospective lessees of
21 dwelling units in the same building or complex as the
22 resident lessee's unit, but only if the resident lessee (i)
23 refers no more than 3 prospective lessees in any 12-month
24 period, (ii) receives compensation of no more than $1,000 or
25 the equivalent of one month's rent, whichever is less, in any
26 12-month period, and (iii) limits his or her activities to
27 referring prospective lessees to the owner, or the owner's
28 agent, and does not show a residential dwelling unit to a
29 prospective lessee, discuss terms or conditions of leasing a
30 dwelling unit with a prospective lessee, or otherwise
31 participate in the negotiation of the leasing of a dwelling
32 unit.
33 (11) Any person who is licensed without examination under
34 Section 10-25 of the Auction License Act is exempt from
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1 holding a broker's or salesperson's license under this Act
2 for the limited purpose of selling or leasing real estate at
3 auction, so long as:
4 (A) that person has made application for said
5 exemption by July 1, 2000;
6 (B) that person verifies to OBRE that he or
7 she they sold real at auction for a period of 5
8 years prior to licensure as an auctioneer;
9 (C) the person has had no lapse in his or her
10 license as an auctioneer; and
11 (D) the license issued under the Auction
12 License Act has not been disciplined for violation
13 of those provisions of Article 20 of the Auction
14 License Act dealing with or related to the sale or
15 lease of real estate at auction.
16 (Source: 91HB0902 as introduced.)
17 ARTICLE 999. EFFECTIVE DATE
18 Section 999-99. Effective date. This Act takes effect
19 on January 1, 2000, except that Sections 30-15 and 30-40 take
20 effect July 1, 1999.