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alone-62253_1920In states which license auctioneers statewide, there is typically both statutory law and administrative code which regulates those auctioneers and the industry overall.

For instance, you must have a license unless, you must pay consignors by, you must enter into a written contract with, your name must be on all advertising, etc.

State legislatures author these statutory laws and of course, some laws are less than clear as to interpretation. Yet, a licensed auctioneer can be disciplined by the regulatory agency for noncompliance of such law or rule.

For example, let’s say a law says:

09-63.01 (1) (A)
The names of all auctioneers involved in any auction in this state must be named in all advertising for such auction. The print size for those names must be no smaller than 12 point type, and no one auctioneer’s name can be in greater prominence than any other. No auctioneer’s name may be in any advertising unless that auctioneer is involved in the auction.

Billy has graduated from auction school and passed his state auctioneer exam. He receives his license and is readying his first auction of farm equipment and tools for and end-of-month event.

Billy is going to need to hire two other auctioneers, plus his brother who is an auctioneer will be clerking. He notes 09-63.01 (1) (A) and wonders if his brother’s name needs to be in his advertising, and be in equal prominence to his name, given he is only clerking.

He further reads other statutes about other requirements and seems to have these choices:

    • Leaving out any auctioneer’s name who is involved in the auction on any advertising will result in license suspension of all auctioneers involved in any auction per 09-63.02 (3) (A)
    • Displaying or advertising an auctioneer who is not involved in any certain auction will result in license suspension of auctioneers involved in the auction per 09-65.03 (2) (C)
    • Any auctioneer providing ancillary services to one or more auctioneers for an auction should be named in any advertising, with his name in smaller prominence than any of the other auctioneers per 09-64.07 (3) (15) (A)

Billy is unclear how to handle his brother’s name. He’s an auctioneer and will likely clerk all day, but might bid call a bit if needed. As he reads the statutes, if he bid calls, his name would have to be the same size as all others; yet, if he only clerks, his name would have to be smaller. He asks the licensing department for clarification in an email.

Basically he wonders what they recommend given there seems to be confusion about these regulations. He gets an email back which reads as follows:

The auctioneer licensing department cannot provide legal interpretation of the statutes and rules which govern your industry. Our legal department advises our department and our employees, but none of that interpretation or legal advice is released to auctioneers or the public. The department recommends consulting your own legal counsel regarding any part of the auctioneer licensing statutes or rules.

What?

The department which can suspend Billy’s license (or revoke it and/or fine him and/or require him to take additional continuing education) for violating any of the statutes won’t tell him what to do to avoid license suspension or other discipline?

Billy contacts a prominent attorney in his small rural town, who tells him, “Billy, the statute is ambiguous … what did the department advise you to do?” Billy responds that the department told him to ask an attorney — and they won’t answer his questions.

Billy’s attorney calls the department and asks essentially the same questions Billy asked: What is Billy to do? What is the department’s position on this ambiguity?

The department representative tells Billy’s attorney they cannot provide legal interpretation of the statutes or rules which govern … when Billy’s attorney interrupts. “If you can suspend his license for violating your interpretation of the rules, you have no choice but to disclose those interpretations.”

Yet, the licensing department does have a choice and they choose to not comment further. We wrote about this type of so-called regulation here in 2015: https://mikebrandlyauctioneer.wordpress.com/2015/03/25/two-types-of-auctioneer-regulators/

Billy’s attorney advises Billy to put his brother’s name in equal prominence with all other auctioneers — just in case he bid calls. Billy does just that and conducts the auction. The auction goes well, with over 400 bidders and his brother, despite having the flu, doing a great job clerking Billy’s first auction.

Subsequently, the auction licensing department sends Billy a letter telling him that his advertising was in conflict (not in compliance) with 09-65.03 (2) (C) and 09-64.07 (3) (15) (A.) Billy’s license is suspended 30 days and he is ordered to pay a $500 fine.

Billy’s attorney again contacts the department to question their behavior in regard to Billy’s actions. He tells them that Billy did exactly what the department recommended by “Consulting his own legal counsel regarding any part of the auctioneer licensing statutes or rules.”

The department responds that his advertising violated state law. “So what should he have done?” his attorney asks again …

Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, Keller Williams Auctions and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College of Business, Executive Director of The Ohio Auction School and Faculty at the Certified Auctioneers Institute held at Indiana University.