85B-4 Licenses Required PDF

**§ 85B-4. Licenses required.** a. No person who is not exempt under G.S. 85B-2, shall sell, or offer to sell, goods or real estate at auction in this State or perform any act for which an auction firm license is required unless the person holds a currently valid license issued under t...

**§ 85B-4. Licenses required.** a. No person who is not exempt under G.S. 85B-2, shall sell, or offer to sell, goods or real estate at auction in this State or perform any act for which an auction firm license is required unless the person holds a currently valid license issued under this Chapter. b. No person shall be licensed as an apprentice auctioneer, auctioneer, or receive an auction firm license if the person: 1. Is under 18 years of age. (2) Repealed by Session Laws 1983, c. 751, s. 6. ----- --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- (3) Has within the preceding five years pleaded guilty to, entered a plea of nolo contendere or been convicted of any felony, or committed or been convicted of any act involving fraud or moral turpitude. (4) Has had an auctioneer or apprentice auctioneer or auction firm license revoked. (5) Has, within the preceding five years, committed any act that constitutes grounds c. Each applicant for an apprentice auctioneer license shall submit a written application in a form approved by the Commission and containing at least two statements by residents of the community in which the applicant resides attesting to the applicant\'s good moral character. (c1) Each apprentice auctioneer application and license shall name a licensed auctioneer to serve as the supervisor of the apprentice. No apprentice auctioneer may enter into an agreement to conduct an auction, or conduct an auction, without the express approval of his supervisor. The supervisor shall review all contracts before approving them and shall regularly review the records his apprentice is required to maintain under G.S. 85B-7 to see that they are accurate and current, and shall perform such other supervisory duties as may be required by the Commission. d. No person shall be licensed as an auctioneer unless the person has held an apprentice auctioneer license and served as an apprentice auctioneer for the two preceding years, accumulated sufficient knowledge and experience in such areas of the auctioneer profession as the Commission may deem appropriate, and has taken an examination approved by the Commission and performed on it to the satisfaction of the Commission. The examination shall test the applicant\'s understanding of the law relating to auctioneers and auctions, ethical practices for auctioneers, the mathematics applicable to the auctioneer business, and such other matters relating to auctions as the Commission considers appropriate. The examination shall be given at least twice each year in North Carolina, and at other times and places the Commission designates, but no person shall be allowed to take the examination within six months after having failed it a second time. Any person who has successfully completed the equivalent of at least 80 hours of classroom instruction in a course in auctioneering at an institution whose curriculum and instructors meet the qualifications approved or established by the Commission may be licensed as an auctioneer without holding an apprentice license and serving as an apprentice for two years, but shall take the examination required by this subsection and perform on it to the satisfaction of the Commission. Each applicant for an auctioneer license shall submit a written application in a form approved by the Commission, pay all applicable fees, and consent in writing to a criminal history check as required by G.S. 85B-3.2. If the applicant has been previously licensed as an apprentice auctioneer, the application shall contain an evaluation by the applicant\'s supervisor of the applicant\'s performance as an apprentice auctioneer and the applicant\'s performance in specific areas as required by the Commission. If the applicant is exempted from apprenticeship after completion of the equivalent of at least 80 hours of classroom instruction in auctioneering, the application shall contain a transcript of the applicant\'s course work in auctioneering. Each application shall be accompanied by statements of at least two residents of the community in which the applicant resides attesting to the applicant\'s good moral character. The Commission may require verification of any information included in an application for an auctioneer license and may request other information or verification of information provided to determine whether the applicant possesses the good moral character or other qualifications for licensure. e. Each license issued under this Chapter shall be valid from July 1 of the year issued, or from the date issued, whichever is later, to the following June 30 unless sooner revoked or suspended pursuant to this Chapter or a rule of the Commission. A license may be renewed for one year at a time, except an apprentice auctioneer license may not be renewed for more than three times. No examination shall be required for renewal of an auctioneer license if the application for renewal is made within 24 months of the expiration of the previous license. (e1) The Commission may require licensees to complete annually not more than six hours of Commission-approved continuing education courses prior to license renewal. The Commission may impose different continuing education requirements, including no such requirements, upon the classes of licensees under this Chapter. The Commission may waive any or all continuing education requirements in cases of hardship, disability, or illness, or under other circumstances as the Commission deems appropriate. The Commission may adopt rules not inconsistent with the provisions of this Chapter to establish continuing education requirements, including rules that govern any of the following: 2. The content and subject matter of continuing education courses. 3. The curriculum of required continuing education courses. 4. The criteria, standards, and procedures for the approval of courses, course sponsors, and course instructors. 5. The methods of instruction for continuing education courses. 6. The computation of course credit. 7. The number of credit hours needed annually. 8. The ability to carry forward course credit from one year to another. 9. The waiver of the continuing education requirement for hardship or other reasons to be determined by the Commission. 10. The procedures for compliance and noncompliance with continuing education requirements. f. No person shall be issued an auctioneer or apprentice auctioneer license until the person has made the contribution to the Fund as required by G.S. 85B-4.1. g. An auction firm must be licensed by the Board even though no owner or officer of the firm acts as an auctioneer. To be licensed an auction firm must make the contribution to the Fund as required by G.S. 85B-4.1 and must pay the proper fees as set out in G.S. 85B-6. Auction firms are covered by the provisions of G.S. 85B-8. An auction firm license issued by the Commission is restricted to the persons named in the license and does not inure to the benefit of any other person. Where a license is issued to an auction firm, authority to transact business under the license is limited to the person or persons designated in the application and named in the license. The designated person or persons, prior to being licensed, shall be required to take a written examination, approved by the Commission, and demonstrate to the satisfaction of the Commission a thorough understanding of the law relating to the conduct of the auction business and other matters the Commission deems appropriate. An individual who is licensed as an auctioneer and who is the designated person applying for an auction firm license is not required to take the auction firm examination. Licensed real estate brokers and real estate firms may be exempt from the auction firm examination provided they employ or associate themselves with a licensed auctioneer to handle those aspects of the transactions peculiar to the auctioneer profession. Any person or entity, on the effective date of this Chapter, duly licensed as an auction firm in good standing is not required to take any examination in order to maintain or to renew an auction firm license provided that the license does not otherwise expire or lapse and is not suspended or revoked by the Commission. h. The Commission shall publish at least once a year a list of names and addresses of all persons, sole proprietorships, partnerships and corporations holding valid apprentice auctioneer, auctioneer, or auction firm licenses. i. The Commission may investigate as it deems necessary the ethical background of any applicant for licensure under this Chapter. (1973, c. 552, s. 4; c. 1195, ss. 1, 2; 1975, c. 648, ss. 2-4; 1983, c. 603, s. 4; c. 751, ss. 6-8; 1989, c. 732, s. 1; 1991 (Reg. Sess., 1992), c. 819, s. 4; c. 1030, s. 51.5; 1993, c. 421, s. 3; 1999-142, s. 4; 2001-198, s. 2; 2005-330, s. 4.) **§ 85B-4.1. Auctioneer Recovery Fund.** a. In addition to license fees, upon application for a license or renewal of a license, the Commission may charge the applicant or licensee up to fifty dollars (\$50.00) per year to be included in the Fund. b. The Commission shall maintain at least two hundred thousand dollars (\$200,000) in the Fund for use as provided in this Chapter. The Fund may be invested by the State Treasurer in interest bearing accounts, and any interest accrued shall be added to the Fund. Sufficient liquidity shall be maintained to insure that funds will be available to satisfy claims processed through the Board. The Fund may be disbursed by a warrant drawn against the State Treasurer or by other method at the discretion of the State Treasurer. c. The Commission, in its discretion, may use contents of the Fund in excess of two hundred thousand dollars (\$200,000) for the following purposes: 1. To promote education and research in the auctioneer profession, in order to benefit persons licensed under this Chapter and to improve the efficiency of the profession. 2. To underwrite educational seminars, training centers, and other forms of educational projects for the use and benefit of licensees. 3. To sponsor, contract for, or underwrite education and research projects in order to advance the auctioneer profession in North Carolina. 4. To cooperate with associations of auctioneers, or other groups, in order to promote the enlightenment and advancement of the auctioneer profession in North Carolina. (1983, c. 603, s. 2; 1989, c. 732, s. 2; 1991 (Reg. Sess., 1992), c. 819, s. 5; 1999-142, s. 5.) **§ 85B-4.2. Grounds for payment; notice and application to Commission.** An aggrieved person who has suffered a monetary loss as a direct result of the conversion of funds or property or other fraudulent act or conduct by a licensed auctioneer, apprentice auctioneer, or auction firm shall be eligible to seek compensation from the Fund subject to the limitations of this Chapter and the amount of loss which is otherwise unrecoverable provided that: 1. The aggrieved person has sued the licensee in a court of competent jurisdiction and has filed with the Commission written notice of such lawsuit within 60 days after its commencement unless the total loss claimed excluding attorneys\' fees is less than two thousand five hundred dollars (\$2,500), in which case the notice may be filed within 90 days after the termination of all judicial proceedings, including appeals; 2. The aggrieved person has obtained final judgment in a court of competent jurisdiction against the licensee based upon conversion or other fraudulent conduct arising out of a transaction which occurred when the licensee was licensed by the Commission and was acting in a capacity for which a North Carolina license is required, which judgment shall show the amount owed the aggrieved person; 3. The aggrieved person was not engaged in any act or conduct for which an auctioneer license is required and was not acting in violation of any of the laws of the State of North Carolina or of the United States; and 4. Execution on the judgment has been issued and has been returned unsatisfied in whole or in part. Upon the termination of all judicial proceedings including appeals, and for a period of one year thereafter, a person eligible for recovery may file a verified application with the Commission for payment out of the Fund of the amount remaining unpaid upon the judgment which represents the actual and direct loss sustained by reason of conversion or other fraudulent conduct. A certified copy of the judgment and return of execution shall be attached to the application and filed with the Commission. The applicant shall serve upon the judgment debtor a copy of the application and shall file with the Commission an affidavit or certificate of service, in accordance with the procedures specified by rule by the Commission. (1983, c. 603, s. 2; 1989, c. 732, s. 3; 1991 (Reg. Sess., 1992), c. 819, s. 6.) **§ 85B-4.3. Hearing; required showing.** Upon application by an aggrieved person, the Commission shall conduct a hearing and the aggrieved person shall be required to show that: 1. The person is not a spouse of the judgment debtor or a person representing such spouse; 2. The person gave notice of the lawsuit as required by G.S. 85B-4.2; 3. The person is making application not more than one year after termination of all judicial proceedings, including appeals, in connection with the judgment; 4. The person has complied with all requirements of this Article; 5. The person has obtained a judgment as described in G.S. 85B-4.2; 6. The person has made all reasonable searches and inquiries to ascertain whether the judgment debtor is possessed of real or personal property or other assets subject to be sold or applied in satisfaction of the judgment; 7. That by a search the person has discovered no real or personal property or other assets subject to be sold or applied, or has discovered certain of them, describing them, but that the amount realized was insufficient to satisfy the judgment, stating the amount realized and the balance remaining due on the judgment after application of the amount realized; and 8. The person has diligently pursued available remedies including attempted execution on the judgment against all the judgment debtors and the execution has been returned unsatisfied. In addition to that, the person knows of no assets of the judgment debtor and has attempted collection from all other persons who may be liable in the transaction for which payment is sought from the Fund if there are any other persons. (1991 (Reg. Sess., 1992), c. 819, s. 7.) **§ 85B-4.4. Response and defense by Commission and judgment debtor; proof of conversion or other fraudulent act.** a. When the Commission proceeds upon an application as set forth in this Article, counsel for the Commission may defend action on behalf of the Fund and shall have recourse to all appropriate means of defense, including the examination of witnesses. The judgment debtor may personally defend the action and shall have recourse to all appropriate means of defense, including the examination of witnesses. Within 30 days after service of the application, counsel for the Commission and the judgment debtor may file responses setting forth answers and defenses. Responses shall be filed with the Commission and copies shall be served upon every party by the filing party. If at any time it appears there are no triable issues of fact and the application for payment from the Fund is without merit, the Commission shall dismiss the application. A motion to dismiss may be supported by affidavit of any person having knowledge of the facts and may be made on the basis that the application or the judgment referred to does not form a basis for meritorious recovery under G.S. 85B-4.2, that the applicant has not complied with the provisions of this Article, or that the liability of the Fund with regard to the particular licensee or transaction has been exhausted; provided, however, notice of such motion shall be given at least 10 days prior to the time fixed for hearing. b. Whenever the judgment obtained by an applicant is by default, stipulation, or consent, or whenever the action against the licensee was defended by a trustee in bankruptcy, the applicant, for purposes of this Article, shall have the burden of proving the cause of action for conversion of funds or property or other fraudulent conduct. Otherwise, the judgment shall create a rebuttable presumption of conversion or other fraudulent conduct. (1991 (Reg. Sess., 1992), c. 819, s. 8.) **§ 85B-4.5. Determination of certain small claims without a prior judicial determination.** Notwithstanding any other provisions of this Chapter, the Commission may, in its discretion, order that payment be made from the Fund, without requiring a prior judicial determination in any case where: 1. The total loss claimed by the claimant is two thousand five hundred dollars (\$2,500) or less; 2. The amount of alleged loss is readily ascertainable rather than speculative in nature; 3. The alleged loss is one that is otherwise compensable under this Chapter; 4. The claimant filed a properly notarized complaint with the Commission not more than one year following the date of the alleged wrongful act or conduct of the licensee; and 5. The Commission, in its discretion, determines that, based upon the evidence presented, justice would be better served by allowing compensation to be paid without first requiring the aggrieved party to obtain a judgment from a court of competent jurisdiction. (1991 (Reg. Sess., 1992), c. 819, s. 9.) **§ 85B-4.6. Order directing payment out of Fund; compromise of claims.** a. Applications for payment from the Fund shall be heard and decided by a majority of the members of the Commission. If, after a hearing, the Commission finds that the claim should be paid from the Fund, the Commission shall enter an order requiring payment from the Fund of whatever sum the Commission shall find to be payable upon the claim in accordance with the limitations contained in this Article. b. Subject to Commission approval, a claim based upon the application of an aggrieved person may be compromised; however, the Commission shall not be bound in any way by any compromise or stipulation of the judgment debtor. (1991 (Reg. Sess., 1992), c. 819, s. 10.) **§ 85B-4.7. Limitations; pro rata distribution; attorneys\' fees.** a. Payments from the Fund shall be subject to the following limitations: 1. The right to recovery under this Article shall be forever barred unless timely notice is given as required by G.S. 85B-4.2(a)(1) and application is made within one year after termination of all proceedings, including appeals, in connection with the judgment. 2. The Fund shall not be liable for more than ten thousand dollars (\$10,000) per transaction regardless of the number of persons aggrieved. 3. The liability of the Fund shall not exceed in the aggregate ten thousand dollars (\$10,000) for any one licensee within a single calendar year, and in no event shall it exceed in the aggregate twenty thousand dollars (\$20,000) for any one licensee. 4. The Fund shall not be liable for payment of any judgment awards of consequential damages, multiple or punitive damages, civil penalties, incidental damages, special damages, interest, costs of court or action, or other similar awards. b. If the maximum of the Fund is insufficient to pay in full the valid claims of all aggrieved persons whose claims relate to the same transaction or to the same licensee, the amount for which the Fund is liable shall be distributed among the claimants in a ratio that their respective claims bear to the total of such valid claims or in a manner the Commission deems equitable. Upon petition of the Commission, the Commission may require all claimants and prospective claimants to be joined in one proceeding so that the respective rights of all claimants to the Fund may be equitably resolved. (1991 (Reg. Sess., 1992), c. 819, s. 11.) **§ 85B-4.8. Repayment to Fund; automatic suspension of license.** Should the Commission pay from the Fund any amount in settlement of a claim or toward satisfaction of a judgment against a licensee, the license of the licensee shall be automatically suspended upon the effective date of the order authorizing payment from the Fund. The licensee shall not be eligible for consideration for reinstatement until repayment in full, plus interest at the legal rate as provided for in G.S. 24-1, the amount paid from the Fund. (1991 (Reg. Sess., 1992), c. 819, s. 12.) **§ 85B-4.9. Subrogation of rights.** When the Commission has paid from the Fund any sum to the judgment creditor, the Commission shall be subrogated to all of the rights of the judgment creditor to the extent of the amount paid and the judgment creditor shall assign all his right, title, and interest in the judgment to the extent of the amount paid to the Commission and any amount and interest recovered by the Commission on the judgment shall be deposited in the Fund. (1991 (Reg. Sess., 1992), c. 819, s. 13.) **§ 85B-4.10. Waiver of rights.** The failure of an aggrieved person to comply with this Chapter shall constitute a waiver of any rights hereunder. (1991 (Reg. Sess., 1992), c. 819, s. 14.) **§ 85B-4.11. Persons ineligible to recover from Fund.** No licensee who suffers the loss of any commission from any transaction in which the licensee was acting in the capacity of an auctioneer, apprentice auctioneer, or auction firm shall be entitled to make application for payment from the Fund for the loss. Likewise, any person who suffers any monetary loss as a result of a joint business venture of any sort with a licensee shall not be entitled to be compensated from the Fund for the loss. (1991 (Reg. Sess., 1992), c. 819, s. 15.) **§ 85B-4.12. Disciplinary action against licensee.** Nothing contained in this Article shall limit the authority of the Commission to take disciplinary action against any licensee under this Chapter, nor shall the repayment in full of all obligations to the Fund by any licensee nullify or modify the effect of any other disciplinary proceeding brought under this Chapter. (1991 (Reg. Sess., 1992), c. 819, s. 16.)