Be it enacted by the Senate and House of Representatives
in General Court assembled, and by the authority of the same,
SECTION 1. The General Laws are hereby amended by striking out chapter 100 and inserting in place thereof the following chapter:- `tuc CHAPTER 100. AUCTIONEERS.
Section 1. In this chapter, the following words and terms, unless the context otherwise requires, shall have the following meanings:-
"Auction" or "Public auction", any sale, coming within its ordinary meaning, by public outcry, including in addition thereto, any sale by public outcry where property is offered first at a stated price and thereafter successively or gradually at lower prices until an acceptor or purchaser is found.
"Auctioneer", any person who, for a fee, commission, profit or any other valuable consideration, or with the intention or expectation of receiving the same, by means of, or process of, an auction or sale at auction, offers, negotiates or attempts to negotiate, a listing contract, sale, purchase or exchange of goods, chattels, merchandise, real or personal property, or of any other commodity which may lawfully be kept or offered for sale by or at public auction.
"Auctioneering", the business or act of selling real, personal or mixed property by successive, competitive bids.
"Director", the director of the division of standards in the executive office of consumer affairs, established by section eleven of chapter six A.
"Goods", any chattels, livestock, merchandise, real or personal property, or commodities of any form or type which may be lawfully kept or offered for sale.
"Local auction permit agent", the person or persons so designed in a city by the mayor or in a town by the board of selectmen, or upon a failure to so designate or in the absence, incapacity or unavailability of any person or persons so designated, the chief of police.
"Person", individuals, associations, partnerships and corporations, and the officers, directors and employees of a corporation.
Section 2. No person shall act as an auctioneer in the commonwealth unless licensed therefor by the director. Any adult resident of the commonwealth, and any adult resident of any other state which extends equivalent license eligibility to residents of the commonwealth, shall be eligible for such a license.
Section 3. Any person desiring to be licensed as an auctioneer shall make written application under oath to the director on a form provided by him. Said application shall set forth the name and address of the applicant and of any other person having a financial interest, direct or indirect, in the business to be conducted by the applicant, and such other information as the director shall require. Said application shall be accompanied by a license fee in the amount of one hundred dollars, or such other amount as the secretary of administration and finance pursuant to the provisions of section three B of chapter seven shall establish, together with two letters of recommendation for licensure signed by a licensed auctioneer or by an elected public official or a member of the Massachusetts bar. Said application shall be further accompanied by a bond upon the applicant in the sum of ten thousand dollars, payable to the director or his successors with sureties approved by the director, and conditioned on applicant's compliance with the provisions of this chapter. Said bond shall guarantee the payment of all fines and penalties incurred by applicant as a licensee for his violations of the said provisions, and also guarantee the payment or satisfaction of any final judgments on claims by creditors against licensee arising in connection with business done under a license granted under this chapter, all such payments under said bond to be limited to the amount of said bond. Such a creditor's claim, however, must have been duly filed by giving written notice to the director prior to the expiration of sixty days from the return, surrender of said license or date of the filing of an affidavit of loss of the license held by the licensee against whom the claim is made.
The acceptance by an applicant of a license issued by the director to him as a licensee shall be deemed equivalent to an appointment by the licensee of the director, or his successors in office, to be the licensee's true and lawful attorney upon whom may be served all lawful process in any action or proceeding against him or his executor or administrator, arising out of the transaction of business by him under said license. Any process against the licensee so served shall, if said licensee is notified as hereinafter provided, be of the same legal force and validity as if served on him personally, and the mailing by the director of a copy of such process to said licensee at his last address, as appearing on the director's records, shall be sufficient notice to him of such service. Service of such process shall be made by delivering or mailing duplicate copies thereof together with a fee of two dollars to the office of the director, and the director shall forthwith send one of said copies by mail, postage prepaid, addressed to the defendant licensee named in such process at his last address as appearing on the director's records.
An affidavit of the director, or of any person authorized by him to send such copy, that such copy has been so mailed shall be prima facie evidence thereof. One of the duplicates of such process, certified by the director as having been delivered to the office of the director, shall be sufficient evidence of service upon him as attorney for the licensee named as defendant in the process.
Section 4. No license application conforming to the requirements of section three shall be denied except after a public hearing held by the director in accordance with and subject to the conditions of chapter thirty A. No such application shall be denied except upon a finding by the director after said hearing of one or more of the following grounds for denial: (a) that the applicant has been convicted of a felony; (b) that the applicant has followed a continuous and flagrant course of misrepresentations or the making of false promises, through agents, advertising or otherwise, in the conduct of auctioneering or otherwise; or (c) that the applicant has failed to meet or has violated any of the requirements for licensees set forth in this chapter. Upon denial of an application, the director shall surrender to the applicant the bond filed with his application within the time set forth.
Section 5. Each license issued by the director shall bear a number, shall be valid for one year from the date of its issuance, may be renewed upon application to the director on a form provided by him, shall not be transferable, and may be exercised only by the licensee; provided, however, that the licensee may employ agents to conduct auctioneering under licensee's immediate direction and control.
Section 6. Prior to its expiration date, a license may be suspended or revoked by the director in accordance with the procedure and on the grounds set forth in section four, or may be terminated by voluntary surrender by the licensee.
Upon the expiration, termination or surrender of a license, the licensee shall deliver the license to the director who shall cancel the license, endorse the date of expiration, termination or surrender and shall, after a sixty-day period from the date of delivery or after all claims made against the licensee have been satisfied or settled, surrender the licensee's bond and so notify the surety on the bond.
If a license is lost, misplaced or destroyed, the licensee shall file an affidavit to that effect and the director shall issue a replacement license, clearly identified as such on the license and in the records of the director.
Section 7. The director shall keep on file, in convenient form and open to public inspection, all license applications and copies of licenses issued and shall annually publish a list of names and addresses of all auctioneers licensed by him, and the names of all persons whose licenses have been revoked, suspended or surrendered during the period and the specific time for which such suspension, revocation or surrender became effective.
Section 8. Each licensee shall keep a complete and accurate account of all goods and chattels sold by him, including the names and addresses of the persons from whom they were received. Each licensee shall be responsible for the reporting and collection of sales and use taxes for all sales made by him.
Section 9. No licensee or other person shall: (a) sell or offer for sale at auction goods known by him to be owned by a minor; (b) advertise an auction or goods for sale at an auction in the commonwealth without including the number of the license issued by the director as a part of the advertisement; (c) advertise for sale or sell goods at auction falsely representing that said goods are, in whole or in part, bankrupt or insolvent stock or damaged goods saved from fire, or otherwise falsely represent or mislead any person as to their origin, history or condition; (d) sell, offer for sale or give away in connection with an auction, any goods as prize packages, gifts, premiums or bonus or otherwise as an inducement to purchase any other goods; (e) sell, offer for sale or dispose of goods at auction by chance or lot, or without first exhibiting to prospective bidders all such goods, including those in packages, bundles or containers, except as to auctions of unclaimed articles; (f) employ or knowingly allow, directly or indirectly, any person to act at any auction as a "capper" or "by bidder" or in any like capacity, for the purpose of bidding up the price of any goods in competition with bona fide bidders or for the purpose of encouraging or enticing bona fide bidders to purchase, or for the purpose of stimulating competitive bidding or sales; or personally act in such capacity; or (g) make or knowingly accept any false bid to buy, or pretend to sell or buy goods.
Section 10. No person shall conduct an auction without a special or annual permit issued by the city or town in which the auction is to be conducted. Application for such a permit shall be filed with the local auction permit agent and shall contain the name of the applicant; the name, address and license number of the auctioneer; the hours between which the auction is to be conducted; the location of the auction; and a general description of the goods to be auctioned. As to a special permit, the estimated value of the goods and the date or dates, not to exceed ten, on which the auction shall be held shall also be included.
Within three days of the filing of an application for a special permit, the local auction permit agent shall either approve the permit subject to stated reasonable terms and conditions relating to public safety as he may establish, or deny the application on stated grounds, which must be reasonable grounds relating to public safety. Failure of an agent to act within the three day period shall constitute approval of the application. Upon approval, express or implied, the applicant shall tender to the city or town treasurer the permit fee established by said agent, which fee shall be reasonable.
No person shall be eligible for an annual permit unless he maintains a regular place of business for the conduct of auctioneering in the city or town. Said permit shall be issued or denied on the same terms applicable to a special permit, except that an application which is not acted upon within fourteen days of the date of filing with the local auction permit agent shall be deemed approved. Each annual permit issued shall be valid for a term of one year commencing on the date of the express or implied approval of the application therefor. Any applicant for a special or annual permit who is aggrieved by the action of the local auction permit agent on his application shall be entitled to a public hearing by the appointing authority of the agent in accordance with the provisions of chapter thirty A.
Section 11. The provisions of this chapter shall not apply to any auction held or conducted by an order or judgment of any court of the commonwealth or of the United States or by any officer of a municipality, county or state of the United States; sales held by sheriffs, deputy sheriffs, constables, collectors of taxes, executors, administrators, lien holders, assignees for the benefit of creditors; sales by any other person specifically authorized by law to sell real, personal or mixed property; casual and isolated sales by an owner of his own goods; and any auction held or conducted by any resident member of a charitable, educational, religious or other nonprofit organization within the commonwealth; provided, however, that any person acting as agent for any of the foregoing shall be subject to all of the provisions of this chapter except section ten.
Section 12. Any person violating any of the provisions of this chapter may be fined not more than one thousand dollars or by imprisonment for not more than six months, or both.
SECTION 2. Notwithstanding any provision of chapter one hundred of the General Laws to the contrary, the director shall issue a license to any auctioneer applying within six months after the effective date of this act who shall pay the required license fee, file the required bond, and give satisfactory proof to the director that he was engaged in the business of auctioneering in the commonwealth at the time that this chapter took effect.
SECTION 3. The provisions of this act shall not affect rights and duties which have matured, penalties which have been incurred, and proceedings which were begun prior to its effective date.