TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

AUCTIONEERS BOARD

Proposed Regulation

Title of Regulation: 18VAC25-21. Regulations of the Virginia Auctioneers Board (amending 18VAC25-21-10 through 18VAC25-21-50, 18VAC25-21-70, 18VAC25-21-80, 18VAC25-21-90, 18VAC25-21-110, 18VAC25-21-120, 18VAC25-21-140, 18VAC25-21-150, 18VAC25-21-170, 18VAC25-21-180, 18VAC25-21-185, 18VAC25-21-190, 18VAC25-21-230 through 18VAC25-21-270; repealing 18VAC25-21-60, 18VAC25-21-100, 18VAC25-21-130, 18VAC25-21-160, 18VAC25-21-200, 18VAC25-21-210, 18VAC25-21-220).

Statutory Authority: §§ 54.1-113, 54.1-201, and 54.1-602 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: December 20, 2024.

Agency Contact: Kathleen R. Nosbisch, Executive Director, Auctioneers Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (866) 465-6206, or email auctioneers@dpor.virginia.gov.

Basis: Section 54.1-602 of the Code of Virginia states that the Auctioneers Board (board) shall have the following authority and responsibilities: (i) to establish regulations to obtain and retain licensure of auctioneers; (ii) to make all case decisions regarding eligibility for initial licensure and renewal; (iii) to fine, suspend, deny renewal or revoke for cause, as defined in regulation, any license; and (iv) to examine auctioneers for licensure. In addition, § 54.1-201 of the Code of Virginia provides that the powers and duties of regulatory boards shall be to establish the qualifications of applicants for certification or licensure by any such board, provided that all qualifications shall be necessary to ensure either competence or integrity to engage in such profession or occupation, and to promulgate regulations necessary to ensure continued competency, to prevent deceptive or misleading practices by practitioners, and to effectively administer the regulatory system administered by the regulatory board.

Purpose: The General Assembly has charged the board with the responsibility for regulating individuals and firms that conduct or offer to conduct an auction by requiring that such individuals and firms obtain a license to sell at auction. The offering and conducting of auctions by those who lack sufficient expertise, competence, integrity, and financial responsibility poses a risk to the public health, safety, and welfare. Risks include (i) financial harm to consumers as the result of an auction that is not properly conducted and (ii) harm to consumers as a result of those who lack the character and integrity of to perform the duties of an auctioneer.

Substance: The proposed amendments include:

1. Revising 18VAC25-21-20 to (i) remove regulatory provisions, which are already established in § 54.1-603 of the Code of Virginia, that an applicant must complete a course of study at a board-approved auctioneering school and pass a license examination; (ii) amend entry requirements pertaining to prior criminal history, including providing that an applicant disclose (a) non-marijuana misdemeanors involving moral turpitude, sexual offenses, drug distribution, or physical injury within three years of the date of application and (b) all felony convictions within 10 years of the date of application, which reduces the look-back period for prior criminal convictions that may be potentially disqualifying to an applicant; and (iii) amend entry requirements pertaining to prior disciplinary history. The revised provisions require that an applicant be not found by any regulatory board or agency to have violated any applicable law or regulation and allow for the board to consider prior regulatory discipline other than discipline related to the practice of auctioneering.

2. Revising 18VAC25-21-40 to (i) remove a provision that nonresident applicants file the irrevocable consent that service of process upon the Department of Professional and Occupational Regulation Director is valid and binding as the service of process upon the applicant, which is provided for in § 54.1-603 of the Code of Virginia and (ii) streamline provisions regarding qualifications for licensure by reciprocity.

3. Revising application procedures in 18VAC25-21-50 to reflect current agency practice. The provisions in the section regarding prior criminal history and prior disciplinary action are revised to be consistent with proposed changes to 18VAC25-21-20.

4. Repealing 18VAC25-21-60, which provides for the content for the license examination. This change is intended to reflect current agency practice, as the board refers the auctioneer examination to a company that supplies the examination and does not determine the requirements of the examination.

5. Revising 18VAC25-21-80 to remove unnecessary provisions regarding mailing of a renewal notice.

6. Revising 18VAC25-21-90 to remove unnecessary provisions regarding the expiration of licenses.

7. Repealing 18VAC25-21-100, which provides for advertising standards. The requirements in this section are either already provided for in § 54.1-607 of the Code of Virginia or are not necessary to protect the public health, safety, and welfare.

8. Revising 18VAC25-21-110 to (i) require that an auction contract include (a) the email address and website of the auctioneer entering into the contract; and (b) the email address of the property owner; (ii) clarify the current standard regarding contract provisions for accounting of items sold; and (iii) remove an unnecessary requirement that a contract include a statement that an owner has read and accepted the terms of the contract.

9. Repealing 18VAC25-21-130, which establishes requirements for display of license, as these requirements are not necessary to protect the health, safety, and welfare of the public.

10. Revising 18VAC25-21-140 to (i) replace the term "clerk sheets" with "itemized accounting of all items auctioned" when detailing documents that must be provided to an owner upon completion of the licensee's services and (ii) incorporate recordkeeping requirements currently located in 18VAC25-21-160. These requirements are revised, including to reduce the record retention period from four years to three years.

11. Revising 18VAC25-21-150 to (i) reduce the restrictiveness of the timeframe for placing proceeds of a personal property auction in escrow; (ii) remove the provision that contingency accounts established to guarantee checks accepted on the owner's behalf will not be considered commingling of funds; (iii) remove the provision that there must be periodic withdrawals from an escrow account containing funds that ultimately belong to a licensee; and (iv) remove requirements for written disclosures in a contract when funds are placed in an interest-bearing account.

12. Repealing 18VAC25-21-160, which provides for recordkeeping requirements. The requirements in this section are relocated to 18VAC25-21-140 and revised.

13. Revising 18VAC25-21-180 to remove the prohibited act for not demonstrating reasonable care, judgment, or application of the licensee's knowledge and ability in the performance of auctioneering duties.

14. Revising 18VAC25-21-190 to (i) incorporate the requirements currently in 18VAC25-21-200, 18VAC25-21-210, and 18VAC25-21-220 and (ii) amend the qualifications for school instructors to reduce the stringency of the current requirements in the regulation. As revised, a school must provide the names of Virginia licensed auctioneer instructors and confirmation of participation in the various aspects of a minimum of 50 auctions.

15. Repealing 18VAC25-21-200, 18VAC25-21-210, and 18VAC25-21-220.

Issues: The primary advantages to the public and the regulated community are that this action will provide necessary updates and clarification; reduce regulatory burden while still protecting the public health, safety, and welfare; and remove requirements in the regulation that are not necessary to protect the public welfare. There are no identifiable disadvantages to the public. It is not anticipated that the regulatory change will create any substantial disadvantages to the regulated community. There are no identifiable disadvantages to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Auctioneers Board (board) proposes to (i) limit the look-back period for criminal convictions that must be disclosed by the license applicants, (ii) allow consideration of prior regulatory discipline other than discipline related to the practice of auctioneering for licensure, (iii) remove the five-year experience requirement for auctioneer school instructors as well as the requirement that a school have five licensed instructors, and (iv) eliminate or revise several administrative requirements to reduce regulatory burdens.

Background. The initial impetus for this action was Executive Directive Number One (2022), which directs Executive Branch entities under the authority of the Governor to initiate regulatory processes to reduce by at least 25% the number of regulations not mandated by federal or state statute in consultation with the Office of the Attorney General and in a manner consistent with the laws of the Commonwealth. This regulation establishes rules for individuals and firms that conduct or offer to conduct an auction by requiring that such individuals and firms obtain a license to sell at auction. During the review of the regulation conducted pursuant to the directive, the board identified certain requirements as overly burdensome to regulants and unnecessary for the protection of the health, safety, and welfare of the public as discussed below.

Estimated Benefits and Costs. The board proposes to reduce the look-back period for criminal convictions that must be disclosed to three years for any non-marijuana misdemeanors involving moral turpitude, sexual offenses, drug distribution, or physical injury and 10 years for felonies. The revised criminal history provisions would potentially expand the pool of qualified applicants by allowing additional individuals with a prior criminal history to qualify for licensure without requiring the board to review and approve the application. However, the board does not track such cases and does not have an estimate on how many applicants may qualify for licensure under the proposed revision. Additionally, according to the board, after an application is received by the board for an applicant with a prior criminal history it can take about six to eight months to have the application reviewed and considered before it may be approved. As a result, this change is expected to produce time savings for such individuals. On the other hand, amendments to the disciplinary action provisions require that an applicant be not found by any regulatory board or agency to have violated any applicable law or regulation. The expanded provisions would thereby allow the board to consider prior regulatory discipline other than discipline related to the practice of auctioneering. This change is more restrictive than the current requirement and may result in some applicants being disqualified from licensure. Similarly, however, data are lacking to provide an estimate on the number of such potential cases.

Another proposed change would reduce the stringency of the qualifications for auctioneering school instructors. Currently, the regulation establishes that a school have at least five instructors who have been licensed for five years and who specialize in different fields of the auction business. The proposal would remove the five-year experience requirement as well as the requirement that a school have five licensed auctioneer instructors. This change potentially would expand the pool of qualified instructors, reduce staffing costs for the schools, and allow additional auction courses to be approved by the Board as the requirements for course instructors are reduced.

The proposal also contains numerous administrative changes, including a proposed reduction in the record retention period from four years to three years; removal of requirements for individuals and firms to display licenses in a conspicuous location at the address of record; removal of a requirement that an auctioneer carry a copy of the auctioneers license on their person and produce the document upon request; removal of a requirement for an auctioneer to include the auctioneer or auction firm name and license number in all advertisements; reducing the restrictiveness of the timeframe for placing proceeds of a personal property auction in escrow; and removal of the provisions regarding mailing of the renewal notice by the board to the licensee. Generally, these changes are expected to provide small administrative cost savings to the licensees as well as the board.

Businesses and Other Entities Affected. According to the board, there were 984 licensed auctioneers and 230 auctioneer firms as of July 1, 2023. There are also 14 board-approved auctioneering schools across the country, only one of which is in Virginia. No entity appears to be disproportionately affected. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.² An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.³ The board expects an expansion of the pool of qualified applicants for the auctioneering license and training instructors by unknown amounts and some cost savings from reduced staffing requirements as well as the administrative burdens. Thus, no adverse impact is indicated.

Small Businesses⁴ Affected.⁵ According to the board, many licensed business entities are likely to be business entities that meet the definition of "small business" in § 2.2-4007.1 of the Code of Virginia. In addition, many individual licensees are likely to be owners or employees of business entities that fall within the meaning of small business. However, the proposed amendments do not appear to adversely affect any entity, including small businesses.

Localities⁶ Affected.⁷ The proposed amendments do not introduce costs for local governments.

Projected Impact on Employment. The expansion of the pool of qualified auctioneering or training applicants may increase the supply of these entities and the reduced staffing of minimum five auctioneers at training schools may reduce the demand for instructors. However, whether such changes would have a material impact on total employment cannot be determined.

Effects on the Use and Value of Private Property. The anticipated reduction in staffing and administrative costs may have a small positive impact on asset values of training schools and the licensed businesses. No other impact on the use and value of private property nor on real estate development costs is expected.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further, the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance.

³ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁴ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁵ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁶ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁷ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Auctioneers Board concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to Executive Directive One (2022), the proposed amendments reduce regulatory burdens while still protecting the public health, safety, and welfare and include (i) reducing the look-back period for prior criminal convictions and tightening other reporting requirements for disqualification for entry into the profession; (ii) removing unnecessary administrative requirements; (iii) reducing the record retention period to three years; (iv) expanding the timeframe for placing proceeds of a personal property auction into escrow; and (v) generally loosening requirements on management of financial accounts and education provider requirements.

Chapter 21

Regulations of the Virginia Auctioneers Board

18VAC25-21-10. Definitions.

The following word or term when used in this chapter shall have the following meanings meaning unless the context clearly indicates otherwise:

"Owner" means the bona fide owner or any lawfully designated agent of the real or personal property being offered for sale; in the case of a corporation, partnership, or other entity, except a sole proprietorship, an authorized officer, director, or partner may be deemed to be "owner" of the real or personal property being offered for sale, provided such entity is licensed to do business in the Commonwealth of Virginia.

18VAC25-21-20. Licensure by examination.

All persons or firms as defined in § 54.1-600 of the Code of Virginia who conduct auctions or offer their services to sell at auction in the Commonwealth are required to file a licensure application and pay the specified fee to the board. Applicants In addition to the requirements established in § 54.1-603 of the Code of Virginia, applicants for individual licensure shall must meet the following requirements:

1. Be at least 18 years of age.

2. Shall not have been previously found by any regulatory board or agency to have violated any applicable regulations or laws in the course of performing auctioneer duties or been convicted or found guilty, regardless of the manner of adjudication, in any jurisdiction of the United States of a non-marijuana misdemeanor involving moral turpitude or any felony, there being no appeal pending therefrom or the time for appeal having elapsed. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. A certified copy of a final order, decree or case decision by a court or regulatory agency with the lawful authority to issue such order shall be admissible as prima facie evidence of such conviction or discipline. Applicants for licensure who do not meet requirements set forth in this section may be approved for licensure following consideration by the board in In accordance with § 54.1-204 of the Code of Virginia., disclose the following information regarding criminal convictions in Virginia and all other jurisdictions:

a. Non-marijuana misdemeanors involving moral turpitude, sexual offenses, drug distribution, or physical injury within three years of the date of the application; and

b. All felony convictions within 10 years of the date of application.

Any plea of nolo contendere will be considered a conviction for purposes of this subsection. The record of a conviction received from a court will be accepted as prima facie evidence of a conviction or finding of guilt. The board, at its discretion, may deny licensure to any applicant in accordance with § 54.1-204 of the Code of Virginia.

3. Successfully complete a course of study at a school of auctioneering that has obtained course approval from the board, or an equivalent course, and has passed the Virginia Licensed Auctioneer's Examination administered by the Auctioneers Board or its designee. Not be found by any regulatory board or agency to have violated any applicable regulation or law. A certified copy of a final order, decree, or case decision by a court or regulatory board or agency with the lawful authority to issue such order will be admissible as prima facie evidence of such conviction or discipline.

18VAC25-21-30. Bond required.

All applicants shall must submit evidence that a surety bond, executed by a surety company authorized to do business in the Commonwealth and in at least the amount of $10,000, has been obtained. Proof of current bond must be submitted in order to obtain or renew the license. The bond must commence no later than the effective date of the license and shall must expire no sooner than the date of expiration of the license.

18VAC25-21-40. License by reciprocity.

The board may issue a license to any individual applicant holding a license in any state, territory, or possession of the United States, with whom the board has established an act of reciprocity, provided the requirements and standards under which the license was issued are substantially equivalent to those established by the board in 18VAC25-21-20. At the time of application for licensure, the applicant must be currently licensed in the state in which reciprocity is established with the Commonwealth of Virginia. The board may deny an application if the licensed auctioneer has been found guilty (i) by any regulatory board or agency to have violated any applicable regulations or laws in the course of performing auctioneering duties or (ii) by a court of any non-marijuana misdemeanor, other criminal offense, or material misrepresentation in the course of performing auctioneer duties. A certified copy of a final order, decree or case decision by a court or regulatory agency with the lawful authority to issue such order shall be admissible as prima facie evidence of such conviction or discipline.

Nonresident applicants shall also file with the board an irrevocable consent that service of process upon the director is valid and binding as the service of process upon the applicant.

18VAC25-21-50. Application.

A. All applicants seeking licensure shall must submit a fully executed complete application with the appropriate fee or fees attached. Applicants will be notified if their the application is incomplete.

Applications for licensure by examination must comply with the requirements of the board's designee as to the deadline for submission of the application to the board's designee.

B. 1. If a For any corporation, limited liability company, or other entity, the application shall must include copies of the certificate of incorporation or certificate of organization issued by the Virginia State Corporation Commission, articles and bylaws.

2. If a For any foreign corporation, foreign limited liability company, or other entity, the application shall must include copies of the certificate of authority to conduct business issued by the Virginia State Corporation Commission, which shall will be required in lieu of the certificates as required by subdivision 1 of this subsection.

3. Any firm applicant shall not have been previously found by any regulatory board or agency to have violated any applicable regulations or laws in the course of performing auctioneer duties or been convicted or found guilty, regardless of the manner of adjudication, in any jurisdiction of the United States of a non-marijuana misdemeanor involving moral turpitude or any felony, there being no appeal pending therefrom or the time for appeal having elapsed. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. A certified copy of a final order, decree or case decision by a court or regulatory agency with the lawful authority to issue such order shall be admissible as prima facie evidence of such conviction or discipline. Applicants for licensure who do not meet requirements set forth in this section may be approved for licensure following consideration by the board in In accordance with § 54.1-204 of the Code of Virginia., any entity must disclose the following information regarding criminal convictions in Virginia and all other jurisdictions:

a. Non-marijuana misdemeanors involving moral turpitude, sexual offenses, drug distribution, or physical injury within three years of the date of the application; and

b. All felony convictions within 10 years of the date of application.

Any plea of nolo contendere will be considered a conviction for purposes of this subsection. The record of a conviction received from a court will be accepted as prima facie evidence of a conviction or finding of guilt. The board, at its discretion, may deny licensure to any applicant in accordance with § 54.1-204 of the Code of Virginia.

4. The applicant must not have been found by any regulatory board or agency to have violated any applicable regulation or law.

C. All applications will be reviewed by the Auctioneers Board staff, or the board's designee, to determine eligibility for examination and licensure within 30 days of receipt at the offices of the Department of Professional and Occupational Regulation or the board's designee. However, failure to review an application within 30 days of receipt shall not imply or result in the automatic approval of the application. No applicant will be approved for licensure unless all requirements of this part of this chapter are met.

18VAC25-21-60. Examination. (Repealed.)

The examination shall test the applicant's knowledge of the following:

1. The auction business including fundamentals of auctioneering, elementary principles of real estate, preparation of contracts, advertising, final settlement statements, arithmetic and percentages, and ethics.

2. The Virginia statutes entitled Auctioneers' Licensure Act, Chapter 6 (§ 54.1-600 et seq.) of Title 54.1 of the Code of Virginia; bulk transfers, §§ 8.6A-101 through 8.6A-110 and 8.2-328 of the Code of Virginia; sales tax laws, Title 58.1 of the Code of Virginia; and the regulations of the board.

18VAC25-21-70. Fees.

Fees are nonrefundable and shall will not be prorated. The following fees shall apply:

1. Individual auctioneer license	$25
2. Auctioneer firm license	$55
3. Renewal for individual auctioneer's license	$55
4. Renewal for firm or corporation license	$65
5. Late renewal for an individual auctioneer's license	$80
6. Late renewal for an auction firm or corporate license	$90
7. Reinstatement of the individual auctioneer's license	$105
8. Reinstatement of the firm or corporate license	$115

The fee for examination or reexamination is subject to contracted charges by an outside vendor. These contracts are competitively negotiated and bargained for in compliance with the Virginia Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia). The board may adjust the fee charged to candidates in accordance with these contracts.

18VAC25-21-80. Notice of renewal.

The board will mail a renewal notice to the licensee outlining the amount due and procedures for renewal to the last known mailing address of record. Failure to receive this notice shall not relieve the individual or firm licensee of the obligation to renew.

Licenses issued under this chapter shall will be issued for a two-year period. Each license holder, corporation, or firm shall will be required to renew the license by submitting the proper fee made payable to the Treasurer of Virginia, with verification of current surety bond coverage as detailed in 18VAC25-21-30. By renewing the license, the licensee is certifying continued compliance with the Standards of Practice in Part IV (18VAC25-21-100 et seq.) and Standards of Conduct in Part V (18VAC25-21-180 et seq.), as well as Continuing Education Requirements in Part VII (18VAC25-21-230 et seq.) of this chapter.

18VAC25-21-90. Failure to renew.

A. Any licensee who fails to renew a license within 30 days after the license expires, shall will be required to pay a late renewal fee.

B. Any licensee, including individuals initially licensed pursuant to § 54.1-603 A of the Code of Virginia, who fails to renew his a license within six calendar months after the expiration date of the license shall will be required to apply for reinstatement of the license. The applicant shall must submit to the board a reinstatement application and fee and comply with the following paragraph. shall apply:

1. If the license has been expired for six months or more, but less than two years, the applicant shall will be required to submit a reinstatement application, which shall will be evaluated by the board to determine if the applicant meets the renewal requirements. In addition, individual license holders applying for reinstatement are required to provide evidence of compliance with the continuing education requirements as contained in this chapter. A license that is reinstated shall will be deemed as having been continuous without interruption. Nothing in these regulations shall this chapter will divest the board of its authority to discipline a license holder for a violation of the law or regulation during the period of time for which the licensee was licensed.

C. 2. If the license has been expired for two years or more, the applicant shall will be required to submit a new application and meet current entry requirements that are in effect as of the date the application is received by the board office. The applicant shall will be required to submit the examination fee and sit for and pass the Virginia Licensed Auctioneer's Examination or comply with the provisions contained in 18VAC25-21-40. Any auctioneering activity conducted between the time the previous license expired and the effective date of the new license shall may be considered unlicensed activity.

D. The date that the complete renewal application, including fees and all required documentation, is received by the board or its agent will determine whether a license will be renewed without penalty or will be subject to reinstatement requirements.

E. Licenses issued under this regulation shall expire 24 months from the last day of the month in which the license was issued. The expiration date of the license will be included on the license.

18VAC25-21-100. Advertising. (Repealed.)

A. All advertising must be truthful. Advertising shall contain no false, misleading or deceptive statements, with respect to types or conditions of merchandise offered at auction, why merchandise is being sold, who has ownership, where the merchandise was obtained, or the terms and conditions of the auction and sale.

B. In all advertisements relating to an auction, the auctioneer's name and Virginia license number or the auction firm's name and Virginia license number shall be clearly displayed.

18VAC25-21-110. Contracts.

A. When a licensee agrees to conduct an auction, a contract shall must be drawn setting forth the particulars of the terms and conditions under which the auctioneer or auction firm received the real or personal property for auction and particulars for the disbursement of the proceeds. Each contract for auction shall include the following:

1. a. A detailed list of the real or personal property received for sale with adequate descriptions of the property so that the personal property of material value can be readily identified. If a list cannot be made at the time of signing of the contract, and the owner of the items agrees to waive this requirement in writing in an addendum to the contract, then a list must be made a part of the contract (and attached) prior to auction of the real or personal property for that day; or

b. If the auctioneer or auction firm enters into a contract to sell items on a consignment basis where the total value of all the items to be sold at any one action auction does not exceed $500, then the requirement contained in subdivision 1 a of this subsection is not applicable.

2. The name, address, telephone number, email address, website, and license number of the licensee entering into the contract.

3. The name, address and, telephone number, and email address of the property owner.

4. The date, time, and place of the auction or auctions at which the real or personal property is scheduled to be auctioned. The and date by which the property is to be returned or otherwise disposed of in accordance with the terms of the contract if it is not sold.

5. The fee or percentage of gross sales the auctioneer or auction firm will charge the owner and what services are included in the fee, such as preparation, travel, labor, advertising, and any other auction related expenses.

6. By what date the owner is to be paid and who is responsible for disbursing the funds.

7. A statement that the clerk sheets, or other evidence to properly account for all items sold, shall be given or made available for inspection by the owner on a daily basis indicating that the auctioneer will maintain an itemized accounting of all items sold on a daily basis to be made available upon request by the owner.

8. The following statement above the owner's signature line: "I have read and accepted the terms of this contract."

B. A legible executed copy of the contract and any addendums shall must be given provided to the owner at the time of execution.

18VAC25-21-120. Conduct at auctions.

No licensee shall will attempt to escalate bidding through false bids, or through collusion with another (shills). The licensee shall must not bid on the owner's behalf nor knowingly accept a bid made by the owner or made on the owner's behalf unless notice has been given that liberty for such bidding has been reserved. The licensee shall must neither bid on his the licensee's own behalf nor knowingly accept a bid made on his the licensee's behalf unless notice has been given that such bidding will be permitted.

18VAC25-21-130. Display of license. (Repealed.)

Auctioneers shall carry their pocket cards on their person and shall produce them upon request. Auction firms shall display their license in a conspicuous location at the address of record. The address of record shall not be a post office box as detailed in 18VAC25-21-170 C.

18VAC25-21-140. Documentation.

A. Upon completion of the licensee's service, each owner shall must be given legible copies of bills of sale, clerk sheets itemized accounting of all items auctioned, consignment sheets, settlement papers, balance sheets or, and other evidence to properly account for all items sold at auction.

B. The licensee is required to maintain, for a period of three years from date of settlement, all items in subsection A of this section, the contract, and buyer records. These business records must be available for inspection by the board or its designees upon request.

18VAC25-21-150. Escrow funds.

A. Proceeds of a personal property auction not disbursed to the owner on auction day shall must be deposited in an auction escrow account by the licensee no later than the next banking day following the date of auction or sale of the goods, whichever occurs first.

B. Notwithstanding the provisions of subsection A of this section, proceeds that are paid via credit card, debit card, check card, or any other electronic funds transfer (EFT) method shall must be deposited into an auction escrow account upon receipt from the originating source.

C. The auction escrow account shall must be used solely for the preservation and guarantee of auction proceeds until disbursed at settlement. Funds for any other purpose shall must not be commingled with the auction escrow account. Contingency accounts established to guarantee checks accepted on the owner's behalf shall not be considered commingling of funds. Moneys due to the licensee shall must not be withdrawn from the auction escrow account until final settlement is made with the owner.

D. Funds to be deposited in the escrow account may include moneys that shall will ultimately belong to the licensee for incidental expenses per the terms of the contract. Such moneys shall must be separately identified in the escrow account records and shall must be paid to the licensee by a check drawn on the escrow account when the funds become due to the licensee. The fact that an escrow account contains money that may ultimately belong to the licensee does not constitute "commingling of funds," provided that there are periodic withdrawals of said funds at intervals of not more than six months and that the licensee can at all times accurately identify the total funds in that account that belong to the licensee.

E. On funds placed in an account bearing interest, written disclosure in the contract of sale or lease at the time of contract or lease writing shall be made to the principals to the transaction regarding the disbursement of interest.

F. E. Auctioneers and auction firms shall must use federally insured depositories in the Commonwealth of Virginia. All accounts, checks, and bank statements shall must be labeled "escrow" and the accounts shall must be designated as "escrow" accounts with the financial institution where such accounts are established.

G. F. Proceeds due from the sale of goods other than real property shall must be disbursed to the owner no later than 30 days after the date of each auction.

H. G. Funds from a real estate auction shall must be held in escrow until settlement in accordance with the agreement of sale.

I. H. If the owner's goods are not sold in a single auction, proceeds due shall must be disbursed to the owner within 30 days after each auction for goods other than real property, or in accordance with the agreement of sale for the sale of real property. Notice must be given to the owner of tentative date of auction, or date of return to the owner, of the remaining goods.

J. I. The balance in the escrow accounts shall must be sufficient at all times to account for all funds that are designated to be held by the licensee. A licensee shall must not disburse or cause to be disbursed moneys from an escrow account unless sufficient money is on deposit in that account to the credit of the individual client or property involved.

18VAC25-21-160. Records. (Repealed.)

The licensee is required to maintain, for a period of four years from the date of settlement, written records of the following: the contract drawn with each owner; auction records, including but not limited to lists of buyers and their addresses; and clerk sheets showing the items sold including the buyers' numbers or names and the selling prices and the final settlement papers. These business records shall be available for inspection by the board or its designees as deemed appropriate and necessary.

18VAC25-21-170. Change of address.

A. Licenses shall are not be transferable and shall must bear the same name and physical address as the business. Upon dissolution or change in the form of the business entity of an auction firm, the auction firm license shall will become void.

B. A licensee shall must report all changes of address to the board in writing, within 30 calendar days of the change, whereupon the board shall will issue an amended license without fee for the unexpired portion of the biennial period.

C. A post office box is acceptable only when a physical address is also provided. If the licensee holds more than one license, certificate, or registration, the licensee shall must inform the board of all licenses, certificates, and registrations affected by the address change.

18VAC25-21-180. Discipline.

The board has the power to fine any individual or firm licensee, or to suspend or revoke any license issued under the provisions of Chapter 6 (§ 54.1-600 et seq.) of Title 54.1 of the Code of Virginia and the regulations of the board pursuant to the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) if it finds that:

1. The license was obtained, renewed, or reinstated through fraud or misrepresentation;

2. The licensee has been convicted or found guilty, regardless of the manner of adjudication, in any jurisdiction of the United States of a non-marijuana misdemeanor involving moral turpitude or any felony, there being no appeal pending therefrom or the time for appeal having elapsed. Review of prior criminal convictions shall will be subject to the requirements of § 54.1-204 of the Code of Virginia. A certified copy of a final order, decree, or case decision by a court with the lawful authority to issue such order shall will be admissible as prima facie evidence of such conviction or discipline;

3. The licensee has been found by any regulatory board, agency, or jurisdiction where licensed to have had a license or registration suspended, revoked, or surrendered in connection with a disciplinary action, who has to have been the subject of discipline in another jurisdiction, or to have violated any applicable regulations or laws in the course of performing auctioneer duties. A certified copy of a final order, decree, or case decision by a court or regulatory agency with the lawful authority to issue such order shall will be admissible as prima facie evidence of such conviction or discipline;

4. The licensee has not demonstrated reasonable care, judgment, or application of his knowledge and ability in the performance of auctioneering duties;

5. 4. The licensee violated or assisted another to violate any provisions of Chapter 1 (§ 54.1-100 et seq.), 2 (§ 54.1-200 et seq.), 3 (§ 54.1-300 et seq.), or 6 of Title 54.1 of the Code of Virginia, this chapter, or combined or conspired with or acted as agent, partner, or associate for another; or

6. 5. The licensee fails to comply, or misrepresents any information pertaining to his the licensee's compliance, with any of the continuing education requirements as contained in this chapter.

18VAC25-21-185. Cooperation with board.

A. The licensee shall must, upon request or demand, produce to the board, or any of its agents, within 10 days any plan, document, book, record, or copy thereof in his the licensee's possession concerning a transaction covered by this chapter, and shall must cooperate in the investigation of a complaint filed with the board.

B. A licensee who has direct knowledge that any individual, including himself the licensee, or firm may be violating any of these provisions, or the provisions of Chapters 1 (§ 54.1-100 et seq.) through 3 (§ 54.1-300 et seq.) or Chapter 6 (§ 54.1-600 et seq.) of Title 54.1 of the Code of Virginia, shall must immediately inform the secretary of the board in writing and shall must cooperate in furnishing any further information or assistance that may be required.

18VAC25-21-190. Application for course approval.

A. Schools seeking approval of their courses shall must file a request with the board. The request shall must include the following information:

1. Name and address of the school;.

2. Locations where classes will be held;.

3. Length of the course and total number of hours of instruction;, including a minimum of 80 hours of classroom studies and active participation in the auction business.

4. Subjects covered together with number of instruction hours assigned;. Course study must include:

a. Auctioneering;

b. Elementary principals of real estate, including brokerage;

c. Contracts;

d. Advertising;

e. Sale preparation;

f. Bid calling;

g. Settlement statements;

h. Ethics; and

i. Current rules and regulations of the Auctioneers Board.

5. Names and qualifications of instructors (area of expertise and experience) Virginia licensed auctioneer instructors and confirmation of participation in the various aspects of a minimum of 50 auctions.

B. Any change in the information provided by the school to the board must be reported to the board in writing within 30 days of such an occurrence.

C. Approval is subject to periodic requalification review as determined by the board.

18VAC25-21-200. Requirements for course approval. (Repealed.)

To receive course approval the institution must offer to Virginia candidates a minimum of 80 hours of classroom and field instruction in the conduct of auction business to include fundamentals of auctioneering, elementary principles of real estate, brokerage, contract drawing, advertising, sale preparation, bid calling, settlement statements, ethics and exposure to the current rules and regulations of the Virginia Auctioneers Board. There must be at least five instructors who have been licensed auctioneers for at least five years and who specialize in different fields of the auction business.

18VAC25-21-210. Amendments and changes. (Repealed.)

Any change in the information provided by the school to the board as required by 18VAC25-21-190, 18VAC25-21-200 or 18VAC25-21-220 shall be reported to the board in writing within 30 days of such an occurrence.

18VAC25-21-220. Periodic requalification for continued course approval. (Repealed.)

The board may require that schools that have previously obtained course approval provide the board with evidence, in a form set forth by the board, that they continue to comply with the requirements of 18VAC25-21-190 and 18VAC25-21-200. Failure to continue to comply with the board's requirements or respond to such a request may result in the board withdrawing its approval.

18VAC25-21-230. Application and criteria for course approval.

A. Course providers seeking approval of their continuing education course shall must file an application with the board office. All continuing education course providers shall must obtain approval from the board office prior to offering to provide, or providing, a course that is advertised or represented as being eligible to comply with the continuing education provisions of this chapter. Retroactive approval of continuing education courses shall will not be permitted.

Continuing education courses shall will be approved provided the following criteria are met:

1. Course subjects must be related to the current practice of auctioneering and have defined learning objectives.

2. At the end of the course, each attendee must be assessed to verify that they have the attendee has achieved the defined learning objectives.

3. The course curriculum must be consistent with the defined learning objectives.

4. The method of instruction must be consistent with the defined learning objectives of the course.

5. Course instructors must be competent in the subject being taught, either by education or experience, and in instructional techniques.

6. Fifty contact minutes shall equal one continuing education credit hour. No credit shall will be awarded for partial continuing education credit hours or partial completion of the course. In addition, attendees who fail to demonstrate successful completion of the defined learning objectives of the course shall will not be awarded credit for the course. For courses in which individual segments are less than 50 minutes, the sum of the segments shall will be totaled for computation of continuing education credit hours.

7. The course provider certifies that the laws, regulations, and industry practices that will be taught or utilized in the course are up to date and that any subsequent changes in laws, regulations, or industry practices will be incorporated into the course curriculum as they occur.

8. The course provider certifies that they it will comply with provisions of this chapter in administering and providing the approved course.

B. Pursuant to § 54.1-603.1 A of the Code of Virginia, continuing education courses completed by an auctioneer pursuant to a requirement of the Certified Auctioneer's Institute or participation in the educational programs sponsored by the National Auctioneer's Association or Virginia Auctioneer's Association are approved.

18VAC25-21-240. Administration of courses.

A. Approved course providers shall must comply with the requirements of this chapter when providing approved courses. Failure of a course provider to comply with the board's requirements contained in 18VAC25-21-230 or any other provision of this chapter at any time after receiving approval from the board may result in the board withdrawing its approval for a course or a specific offering or offerings of the course.

B. Course approval is not transferable from the course provider to whom it was originally issued.

C. The approved course providers shall must award a certificate of completion to those attendees who successfully complete the course that includes the sponsor identification number of the course provider issued by the board office, name of the course, number of continuing education credit hours awarded, and the date of the course. Course providers shall must only award continuing education credit hours in the amount as approved.

D. Attendance must be verified and documented at the beginning and end of the course and monitored during the course. No credit may be awarded to attendees who arrived late, left early, or missed a portion of the course or failed to accomplish the learning objectives of the course. Further, such individuals shall may not be awarded a certificate of completion by the course provider.

E. At the end of each course, the course provider shall must solicit feedback from the attendees to assess the effectiveness of the course, course content, course curriculum, instructor, and method of instruction. The course provider shall must monitor the feedback from the attendees and make adjustments as warranted.

F. All records related to an approved course must be maintained for four years from the date of the course and such records shall must be provided to the board or its duly authorized agents upon request. Records that must be maintained include, but are not limited to, time, date, and location of the course; course materials; course curriculum; instructor; instructor qualifications; learning objectives; assessment of attendees for verification of achievement of the learning objectives; end of course feedback from attendees; attendance rosters; and records of those attendees who successfully completed the course and those who did not and reasons why attendees noted as not successfully completing the course did not successfully complete the course.

18VAC25-21-250. Continuing education requirements for renewal or reinstatement.

A. Licensees whose licenses expire or who apply to reinstate shall be are required to comply with the continuing education provisions of this chapter, excluding any auctioneer licensed by the board for 25 years or more and who is 70 years of age or older at the time of license expiration pursuant to § 54.1-603.1 A of the Code of Virginia.

B. Licensees subject to the provisions of this section are required to complete at least six continuing education credit hours of board-approved continuing education courses for any license renewal or reinstatement.

A Virginia licensee that is also licensed in another state with which the board shares a reciprocal agreement may use board-approved continuing education in that state to meet the required six hours of continuing education for Virginia, provided that the reciprocal jurisdiction affords the same privilege to Virginia licensees.

C. 1. Each licensee applying for renewal shall certify that he the licensee has met the continuing education requirements of this chapter. Only continuing education courses completed during the license period immediately prior to the expiration date of the license shall will be acceptable in order to renew the license.

2. Licensees shall must maintain records of completion of continuing education credit hours for two years from the date of expiration of the license for which the continuing education credit hours are being used to renew the license. Individuals shall must provide such records to the board or its duly authorized agents upon request.

3. Continuing education credit hours utilized to satisfy the continuing education requirements to renew a license shall will be valid only for that renewal and shall will not be accepted for any subsequent renewal cycles or reinstatement.

D. 1. Each individual applying for reinstatement shall must provide, as part of his the individual's reinstatement application, evidence of compliance with the continuing education requirements of this chapter. The completion date of continuing education courses submitted in support of a reinstatement application shall must not be more than two years old as of the date a complete reinstatement application is received by the board.

2. Continuing education credit hours utilized to satisfy the continuing education requirements in order to reinstate a license shall will be valid only for that reinstatement and shall will not be accepted for any subsequent renewal cycles or reinstatement.

E. Notwithstanding the provisions of subsection C of this section, continuing education hours earned during a licensing renewal cycle to satisfy the continuing education requirements of the preceding licensing renewal cycle shall will be valid only for that preceding license renewal cycle and shall will not be accepted for any subsequent renewal cycles or reinstatement.

18VAC25-21-260. Exemptions and waivers.

A. Pursuant to § 54.1-603.1 A of the Code of Virginia, the board shall will exempt any auctioneer licensed by the board for 25 years or more and who is 70 years of age or older from the requirement to comply with the continuing education provisions of this chapter.

B. Pursuant to § 54.1-603.1 B of the Code of Virginia, the board may grant exemptions or waive or reduce the number of continuing education hours required in cases of certified illness or undue hardship. However, such exemptions, waivers, or reductions shall will not relieve the individual of his the obligation to comply with any other requirements of this chapter, including but not limited to the provisions of 18VAC25-21-80 or 18VAC25-21-90.

18VAC25-21-270. Amendments and changes.

Any change in the information provided by a course provider to the board as required by 18VAC25-21-230 A, or 18VAC25-21-280 or change in ability to comply with the requirements of 18VAC25-21-240 shall must be reported to the board in writing within 10 days of such an occurrence. In instances of noncompliance with the provisions of this chapter, the approval of the course is automatically suspended until such time as the course provider corrects the deficiency and notifies the board in writing that such deficiency has been corrected.