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92_HB5803eng HB5803 Engrossed LRB9215552OBsb 1 AN ACT relating to auctions. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Auction License Act is amended by 5 changing Section 10-1 and adding Section 10-27 as follows: 6 (225 ILCS 407/10-1) 7 (Section scheduled to be repealed on January 1, 2010) 8 Sec. 10-1. Necessity of license; exemptions. 9 (a) It is unlawful for any person, corporation, limited 10 liability company, partnership, or other entity to conduct an 11 auction, provide an auction service, hold himself or herself 12 out as an auctioneer, or advertise his or her services as an 13 auctioneer in the State of Illinois without a license issued 14 by OBRE under this Act, except at: 15 (1) an auction conducted solely by or for a 16 not-for-profit organization for charitable purposes; 17 (2) an auction conducted by the owner of the 18 property, real or personal; 19 (3) an auction for the sale or lease of real 20 property conducted by a licensee under the Real Estate 21 License Act, or its successor Acts, in accordance with 22 the terms of that Act;and23 (4) an auction conducted by a business registered 24 as a market agency under the federal Packers and 25 Stockyards Act (7 U.S.C. 181 et seq.) or under the 26 Livestock Auction Market Law;.27 (5) an auction conducted by an agent, officer, or 28 employee of a federal agency in the conduct of his or her 29 official duties; and 30 (6) an auction conducted by an agent, officer, or 31 employee of the State government or any political HB5803 Engrossed -2- LRB9215552OBsb 1 subdivision thereof performing his or her official 2 duties. 3 (b) Nothing in this Act shall be construed to apply to a 4 new or used vehicle dealer or a vehicle auctioneer licensed 5 by the Secretary of State of Illinois, or to any employee of 6 the licensee, who is a resident of the State of Illinois, 7 while the employee is acting in the regular scope of his or 8 her employment for the licensee while conducting an auction 9 that is not open to the public, provided that only new or 10 used vehicle dealers licensed by the Secretary of State or 11 licensed by another jurisdiction may buy property at the 12 auction, or to sales by or through the licensee. 13 (c) Nothing in this Act shall be construed to prohibit a 14 person under the age of 18 from selling property under $250 15 in value while under the direct supervision of a licensed 16 auctioneer. 17 (d) Nothing in this Act, except Section 10-27, shall be 18 construed to apply to a person that provides an Internet 19 auction listing service as defined in Section 10-27. 20 (Source: P.A. 91-603, eff. 1-1-00.) 21 (225 ILCS 407/10-27 new) 22 Sec. 10-27. Registration of Internet Auction Listing 23 Service. 24 (a) For the purposes of this Section: 25 (1) "Internet Auction Listing Service" means a 26 website on the Internet, or other interactive computer 27 service that is designed to allow or advertised as a 28 means of allowing users to offer personal property or 29 services for sale or lease to a prospective buyer or 30 lessee through an on-line bid submission process using 31 that website or interactive computer service and that 32 does not examine, set the price, or prepare the 33 description of the personal property or service to be HB5803 Engrossed -3- LRB9215552OBsb 1 offered, or in any way utilize the services of a natural 2 person as an auctioneer. 3 (2) "Interactive computer service" means any 4 information service, system, or access software provider 5 that provides or enables computer access by multiple 6 users to a computer server, including specifically a 7 service or system that provides access to the Internet. 8 (b) It is unlawful for any person, corporation, limited 9 liability company, partnership, or other entity to provide an 10 Internet auction listing service in the State of Illinois for 11 compensation without being registered with the Office of 12 Banks and Real Estate (OBRE) when: 13 (1) the person, corporation, limited liability 14 company, partnership, or other entity providing the 15 Internet auction listing service is located in the State 16 of Illinois; 17 (2) the prospective seller or seller, prospective 18 lessor or lessor, or prospective purchaser or purchaser 19 is located in the State of Illinois and is required to 20 agree to terms with the person, corporation, limited 21 liability company, partnership, or other entity providing 22 the Internet auction listing service, no matter where 23 that person, corporation, limited liability company, 24 partnership, or other entity is located; or 25 (3) the personal property offered for sale or lease 26 is located in the State of Illinois. 27 (c) Any person, corporation, limited liability company, 28 partnership, or other entity that provides an Internet 29 auction listing service in the State of Illinois for 30 compensation under any of the circumstances listed in 31 subsection (b) shall register with OBRE on forms provided by 32 OBRE accompanied by the required fee as provided by rule. 33 Such registration shall include information as required by 34 OBRE and established by rule as OBRE deems necessary to HB5803 Engrossed -4- LRB9215552OBsb 1 enable users of the Internet auction listing service in 2 Illinois to identify the entity providing the service and to 3 seek redress or further information from such entity. The fee 4 shall be sufficient to cover the reasonable costs of OBRE in 5 administering and enforcing the provisions of this Section. 6 The registrant shall be required to certify: 7 (1) that the registrant does not act as the agent 8 of users who sell items on its website, and acts only as 9 a venue for user transactions; 10 (2) that the registrant requires sellers and 11 bidders to register with the website and provide their 12 name, address, telephone number and e-mail address; 13 (3) that the registrant retains such information 14 for a period of at least 2 years; 15 (4) that the registrant retains transactional 16 information consisting of at least seller identification, 17 high bidder identification, and item sold for at least 2 18 years from the close of a transaction, and has a 19 mechanism to identify all transactions involving a 20 particular seller or buyer; 21 (5) that the registrant has a mechanism to receive 22 complaints or inquiries from users; 23 (6) that the registrant adopts and reasonably 24 implements a policy of suspending, in appropriate 25 circumstances, the accounts of users who, based on the 26 registrant's investigation, are proven to have engaged in 27 a pattern of activity that appears to be deliberately 28 designed to defraud consumers on the registrant's 29 website; and 30 (7) that the registrant will comply with OBRE and 31 law enforcement requests for stored data in its 32 possession, subject to the requirements of applicable 33 law. 34 (d) OBRE may refuse to accept a registration which is HB5803 Engrossed -5- LRB9215552OBsb 1 incomplete or not accompanied by the required fee. OBRE may 2 impose a civil penalty not to exceed $10,000 upon any 3 Internet auction listing service that intentionally fails to 4 register as required by this Section, and may impose such 5 penalty or revoke, suspend, or place on probation or 6 administrative supervision the registration of any Internet 7 auction listing service that: 8 (1) intentionally makes a false or fraudulent 9 material representation or material misstatement or 10 misrepresentation to OBRE in connection with its 11 registration, including in the certification required 12 under subsection (c); 13 (2) is convicted of any crime, an essential element 14 of which is dishonesty, fraud, larceny, embezzlement, or 15 obtaining money, property, or credit by false pretenses 16 or by means of a confidence game; or is convicted in this 17 or another state of a crime that is a felony under the 18 laws of this State; or is convicted of a felony in a 19 federal court; 20 (3) is adjudged to be a person under legal 21 disability or subject to involuntary admission or to meet 22 the standard for judicial admission as provided in the 23 Mental Health and Developmental Disabilities Code; 24 (4) has been subject to discipline by another 25 state, the District of Columbia, a territory of the 26 United States, a foreign nation, a governmental agency, 27 or any other entity authorized to impose discipline if at 28 least one of the grounds for that discipline is the same 29 as or equivalent to one of the grounds for discipline set 30 forth in this Section or for failing to report to OBRE, 31 within 30 days, any adverse final action taken against 32 the registrant by any other licensing or registering 33 jurisdiction, government agency, law enforcement agency, 34 or court, or liability for conduct that would constitute HB5803 Engrossed -6- LRB9215552OBsb 1 grounds for action as set forth in this Section; 2 (5) fails to make available to OBRE personnel 3 during normal business hours all records and related 4 documents maintained in connection with the activities 5 subject to registration under this Section; 6 (6) makes or files false records or reports in 7 connection with activities subject to registration, 8 including but not limited to false records or reports 9 filed with State agencies; 10 (7) fails to provide information within 30 days in 11 response to a written request made by the OBRE to a 12 person designated in the registration for receipt of such 13 requests; 14 (8) offers or advertises real estate for sale or 15 lease at auction without a valid broker or salesperson's 16 license under the Real Estate License Act of 2000, or any 17 successor Act, unless exempt from licensure under the 18 terms of the Real Estate License Act of 2000, or any 19 successor Act; or 20 (9) fails to perform any act or procedure described 21 in subsection (c) of this Section. 22 (e) Registrations issued pursuant to this Section shall 23 expire on September 30 of odd-numbered years. A registrant 24 shall submit a renewal application to OBRE on forms provided 25 by OBRE along with the required fee as established by rule. 26 (f) Operating an Internet auction listing service under 27 any of the circumstances listed in subsection (b) without 28 being currently registered under this Section is declared to 29 be adverse to the public welfare, to constitute a public 30 nuisance, and to cause irreparable harm to the public 31 welfare. The Commissioner of OBRE, the Attorney General of 32 the State of Illinois, the State's Attorney of any county in 33 the State, or any other person may maintain an action and 34 apply for injunctive relief in any circuit court to enjoin HB5803 Engrossed -7- LRB9215552OBsb 1 the person or entity from engaging in such practice. 2 (g) The provisions of Sections 20-25, 20-30, 20-35, 3 20-40, 20-45, 20-50, 20-55, 20-60 and 20-75 of this Act shall 4 apply to any actions of OBRE exercising its authority under 5 subsection (d) as if a person required to register under this 6 Section were a person holding or claiming to hold a license 7 under this Act. 8 (h) OBRE shall have the authority to adopt such rules as 9 may be necessary to implement or interpret the provisions of 10 this Section. 11 Section 99. Effective date. This Act takes effect upon 12 becoming law.