1997 Regular Session
To: Judiciary B
By: Representatives Hamilton, Comans
House Bill 1173
AN ACT TO AMEND SECTIONS 73-4-5, 73-4-17, 73-4-29, 73-4-39 AND 73-4-41, MISSISSIPPI CODE OF 1972, TO EXEMPT AUCTION GALLERIES AND AUCTIONEERS WHOSE ANNUAL GROSS EARNINGS ARE LESS THAN $50,000.00 FROM THE PROVISIONS OF THE MISSISSIPPI AUCTIONEERS LICENSE ACT; TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 73-4-53, MISSISSIPPI CODE OF 1972, TO PLACE A REPEALER ON THE MISSISSIPPI AUCTIONEERS LICENSE ACT; TO REPEAL SECTION 73-4-27, MISSISSIPPI CODE OF 1972, WHICH PROVIDES ADDITIONAL REQUIREMENTS FOR AUCTION GALLERY LICENSEES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 73-4-5, Mississippi Code of 1972, is amended as follows:
73-4-5. (1) The provisions of this chapter shall not apply to the following transactions:
(a) A sale conducted by order of any United States court pursuant to Title 11 of the United States Code relating to bankruptcy;
(b) A sale conducted by an employee of the United States or the State of Mississippi or its political subdivisions in the course and scope of his employment;
(c) A sale conducted by a charitable or nonprofit organization if the auctioneer receives no compensation;
(d) A sale conducted by an individual of his own property if such individual is not engaged in the business of selling such property as an auctioneer on a recurring basis;
(e) A sale conducted by an individual acting as a receiver, trustee in bankruptcy, guardian, administrator or executor or any such person acting under order of court; by a real estate agent, broker or salesman, who auctions property that he has an exclusive listing agreement on, if done through a silent or written auction not done by public outcry or by a trustee acting under a trust agreement, deed of trust or will;
(f) A foreclosure sale of personal property conducted personally by the mortgagee or other secured party or an employee or agent of such mortgagee or other secured party acting in the course and scope of his employment if the employee or agent is not engaged otherwise in the auction business and if all property for sale in the auction is subject to a security agreement;
(g) A sale conducted by sealed bid;
(h) An auction conducted in a course of study, approved by the Secretary of State, for auctioneers and conducted only for student training purposes;
(i) An auction conducted by a posted stockyard or market agency as defined by the Federal Packers and Stockyard Act, 1921, as amended (7 U.S.C.S. 181 et seq.);
(j) An auction of livestock conducted by a nonprofit livestock trade association chartered in this state if the auction involves only the sale of the trade association's members' livestock; * * *
(k) An auction conducted by a charitable or nonprofit organization chartered in this state if the auction involves only the property of the organization's members and the auction is part of a fair that is organized under state, county or municipal authority; or
(l) An auction or auctions conducted by any person who has gross earnings of less than Fifty Thousand Dollars ($50,000.00) per year.
(2) The provisions of this chapter shall not apply to an auction gallery.
SECTION 2. Section 73-4-17, Mississippi Code of 1972, is amended as follows:
73-4-17. There shall be two (2) classes of auctioneers' licenses, which shall be livestock auctioneer and auctioneer * * *. All applicants for a license under this chapter shall possess the following minimum qualifications:
(a) Applicants shall have attained the age of eighteen (18) years by the issuance date of the license.
(b) Applicants shall have obtained at a minimum a high school diploma or G.E.D. equivalent and shall be graduates of an auctioneering school approved by the commission.
(c) Each applicant for a license under this chapter shall demonstrate to the commission that he is of good moral character and worthy of public trust through background information to be provided on his application form and two (2) letters of reference from persons not related to the applicant who have known the applicant at least three (3) years. The commission may require additional information or a personal interview with the applicant to determine if such applicant should be granted a license.
(d) Each applicant for a license under this chapter shall take and successfully complete an examination as prescribed by the commission. The examination shall include questions on ethics, reading comprehension, writing, spelling, elementary arithmetic, elementary principals of land economics, general knowledge of bulk sales law, contracts of sale, agency, leases, brokerage, knowledge of various goods commonly sold at auction, ability to call bids, knowledge of sale preparation and proper sale advertising and sale summary, and knowledge of the provisions of this chapter and the commission's rules and regulations. * * * Examinations shall be administered at least once a year and may be administered quarterly at the commission's discretion provided there are at least twenty-five (25) examinees. The commission shall ensure that the various forms of the test remain secure.
(e) In order to defray the cost of administration of the examinations, applicants for the examination shall pay fees as follows:
(i) Auctioneer - $100.00.
* * *
(ii) Livestock auctioneer - $100.00.
(f) Each applicant desiring to sit for the examination for any license required under this chapter shall be required to furnish to the commission at least thirty (30) days prior to the examination evidence of a surety bond in the following minimum amounts:
(i) Auctioneer - $10,000.00.
* * *
(ii) Livestock auctioneer - $10,000.00.
* * *
(g) All licenses granted pursuant to this chapter shall be for a term of two (2) years and shall expire on the first day of March at the end of such two-year term. Biannual license fees shall be set from time to time by the commission with a maximum fee of Two Hundred Dollars ($200.00). Individuals failing to submit license renewal fees on or before March 1 of the year for renewal shall be required to successfully pass the next administration of the examination in order to renew a license.
SECTION 3. Section 73-4-29, Mississippi Code of 1972, is amended as follows:
73-4-29. (1) Every person who applies for an auctioneer's license, as a condition to the granting and the retention thereof, shall file or have on file with the commission, a bond in the amount of Ten Thousand Dollars ($10,000.00).
* * *
(2) Every person who applies for a livestock auctioneer's license, as a condition to the granting and the retention thereof, shall file or have on file with the commission, a bond in the amount of Ten Thousand Dollars ($10,000.00).
(3) (a) Factory-built homes as defined by Section 75-49-3, because of the manner of their construction, assembly and use and that of their systems, components and appliances (including heating, plumbing and electrical systems), like other finished products having concealed vital parts, may present hazards to the health, life and safety of persons and to the safety of property unless properly inspected prior to sale and properly anchored and blocked at the homesite after the sale so as to provide reasonable safety and protection to their owners and users. In order to insure that these homes are properly anchored and blocked at the homesite in accordance with the rules, regulations and procedures promulgated by the State Commissioner of Insurance pursuant to his rule-making power contained in Section 75-49-5, auctions of these homes shall be restricted to factory-built housing dealers licensed pursuant to Section 75-49-9 and subject to the penalties of Section 75-49-19, except as otherwise provided in paragraph (b).
(b) An auctioneer licensed under this chapter may auction a factory-built home without obtaining a license pursuant to Section 75-49-9, if the auction is not for the sole purpose of disposing of factory-built homes and if the disposal of the factory-built home is incidental to, and a part of, an entire estate or liquidation auction. The number of such homes that may be auctioned pursuant to this paragraph is limited to three (3) being offered for sale in one (1) auction or event.
SECTION 4. Section 73-4-39, Mississippi Code of 1972, is amended as follows:
73-4-39. Except with respect to goods sold through an auction gallery, no licensee shall sell goods at an auction until the auctioneer * * * involved has first entered into a written contract with the owner or consignor of such goods, which contract sets forth the terms and conditions upon which such auctioneer * * * accepts the goods for sale. A copy of every written contract shall be retained for a period of two (2) years from the date of the auction.
SECTION 5. Section 73-4-41, Mississippi Code of 1972, is amended as follows:
73-4-41. All advertisements of auctions shall disclose:
(a) The auctioneer's name and the name of the auction gallery involved; and
(b) Whether the auction is to be absolute or with reserve; and
(c) The auctioneer's * * * auction license number.
SECTION 6. The following shall be codified as Section 73-4-53, Mississippi Code of 1972:
73-4-53. Sections 73-4-1 through 73-4-51, Mississippi Code of 1972, which provide for the regulation of the auctioneering profession, shall stand repealed on June 30, 1997.
SECTION 7. Section 73-4-27, Mississippi Code of 1972, which provides additional requirements for auction gallery licensees, is repealed.
SECTION 8. This act shall take effect and be in force from and after July 1, 1997.