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Sen. Don Harmon
Filed: 5/18/2007
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LRB095 04356 RAS 36457 a |
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| AMENDMENT TO HOUSE BILL 1406
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| AMENDMENT NO. ______. Amend House Bill 1406 by replacing |
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| everything after the enacting clause with the following:
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| "Section 5. The Auction License Act is amended by changing |
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| Sections 5-10, 10-1, 10-5, 10-15, 10-20, 10-25, 10-27, 10-30, |
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| 10-35, 10-40, 10-45, 10-50, 20-5, 20-15, 20-20, 20-25, 20-30, |
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| 20-35, 20-40, 20-45, 20-50, 20-55, 20-60, 20-65, 20-70, 20-75, |
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| 20-80, 20-85, 20-90, 20-95, 25-5, 25-10, 25-15, 30-5, 30-10, |
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| 30-15, 30-20, 30-25, 30-30, 30-40, 30-45, 30-50, and 30-55 and |
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| by adding Section 20-100 as follows:
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| (225 ILCS 407/5-10)
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| (Section scheduled to be repealed on January 1, 2010)
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| Sec. 5-10. Definitions. As used in this Act:
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| "Advertisement" means any written, oral, or electronic |
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| communication that
contains a promotion, inducement, or offer |
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| to conduct an auction or offer to
provide an auction service, |
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| including but not limited to brochures, pamphlets,
radio and |
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| television scripts, telephone and direct mail solicitations,
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| electronic media, and other means of promotion.
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| "Advisory Board" means the Auctioneer Advisory Board.
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| "Associate auctioneer" means a person who conducts an |
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| auction, but who is
under the direct supervision of, and is |
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| sponsored by, a licensed auctioneer
or auction firm.
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| "Auction" means the sale or lease of property, real or |
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| personal, by means
of exchanges between an auctioneer or |
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| associate auctioneer and prospective
purchasers or lessees, |
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| which consists of a series of invitations for offers
made by |
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| the auctioneer or associate auctioneer and offers by |
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| prospective
purchasers or lessees for the purpose of obtaining |
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| an acceptable offer for
the sale or lease of the property, |
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| including the sale or lease of property
via mail, |
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| telecommunications, or the Internet.
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| "Auction contract" means a written agreement between an |
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| auctioneer,
associate auctioneer, or auction firm and a seller |
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| or sellers.
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| "Auction firm" means any corporation, partnership, or |
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| limited liability
company that acts as an auctioneer and |
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| provides an auction service.
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| "Auction school" means any educational institution, public |
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| or private,
which offers a curriculum of auctioneer education |
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| and training approved
by the Department
Office of Banks and |
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| Real Estate .
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| "Auction service" means the service of arranging, |
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| managing, advertising,
or conducting auctions.
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| "Auctioneer" means a person or entity who, for another, for |
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| a fee,
compensation, commission, or any other valuable |
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| consideration at auction or
with the intention or expectation |
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| of receiving valuable consideration by the
means of or process |
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| of an auction or sale at auction or providing an auction
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| service, offers, negotiates, or attempts to negotiate an |
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| auction contract,
sale, purchase, or exchange of goods, |
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| chattels, merchandise, personal property,
real property, or |
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| any commodity that may be lawfully kept or offered for sale
by |
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| or at auction.
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| "Commissioner" means the Commissioner of the Office of |
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| Banks and Real Estate
or his or her designee.
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| "Department" means the Department of Financial and |
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| Professional Regulation.
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| "Director" means the Director of Auction Regulation.
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| "Goods" means chattels, movable goods, merchandise, or |
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| personal property or
commodities of any form or type that may |
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| be lawfully kept or offered for sale.
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| "Licensee" means any person licensed under this Act.
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| "Managing auctioneer" means any person licensed as an |
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| auctioneer who manages
and supervises licensees sponsored by an |
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| auction firm or auctioneer.
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| "OBRE" means the Office of Banks and Real Estate.
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| "Person" means an individual, association, partnership, |
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| corporation, or
limited liability company or the officers, |
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| directors, or employees of the same.
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| "Pre-renewal period" means the 24 months prior to the |
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| expiration date of a
license issued under this Act.
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| "Secretary" means the Secretary of the Department of |
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| Financial and Professional Regulation or his or her designee.
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| "Sponsoring auctioneer" means the auctioneer or auction |
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| firm who has issued a
sponsor card to a licensed associate |
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| auctioneer or auctioneer.
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| "Sponsor card" means the temporary permit issued by the
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| sponsoring auctioneer certifying that the licensee named |
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| thereon is employed
by or associated with the sponsoring |
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| auctioneer and the sponsoring auctioneer
shall be responsible |
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| for the actions of the sponsored licensee.
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| (Source: P.A. 91-603, eff. 1-1-00; 92-16, eff. 6-28-01.)
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| (225 ILCS 407/10-1)
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| (Section scheduled to be repealed on January 1, 2010)
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| Sec. 10-1. Necessity of license; exemptions.
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| (a) It is unlawful for any
person, corporation,
limited |
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| liability company, partnership, or other entity to conduct an |
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| auction,
provide an auction
service, hold himself or herself |
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| out as an auctioneer, or advertise his or her
services as an |
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| auctioneer
in the State of Illinois without a license issued by |
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| the Department
OBRE under this Act,
except at:
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| (1) an auction conducted solely by or for a |
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| not-for-profit organization
for
charitable
purposes;
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| (2) an auction conducted by the owner of the property, |
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| real or personal;
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| (3) an auction for the sale or lease of real property |
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| conducted by a
licensee
under the
Real Estate License Act, |
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| or its successor Acts, in accordance with the terms of
that |
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| Act;
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| (4) an auction conducted by a business registered as a |
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| market
agency under the federal Packers and Stockyards Act |
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| (7 U.S.C. 181 et seq.) or
under the Livestock Auction |
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| Market Law;
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| (5) an auction conducted by an agent, officer, or |
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| employee of a federal
agency in the conduct of his or her |
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| official duties; and
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| (6) an auction conducted by an agent, officer, or |
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| employee of the State
government or any political |
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| subdivision thereof performing his or her official
duties.
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| (b) Nothing in this Act shall be construed to apply to a |
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| new or used
vehicle dealer
or a vehicle auctioneer licensed by |
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| the Secretary of State of Illinois, or
to any employee of the
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| licensee, who is a resident of the State of Illinois,
while the |
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| employee is acting in the regular scope of his or her |
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| employment for
the licensee
while conducting an auction that is |
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| not open to the public, provided that
only new or used vehicle |
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| dealers,
rebuilders, automotive parts recyclers, scrap |
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| processors, or out-of-state
salvage vehicle buyers licensed by |
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| the Secretary of State or licensed by
another jurisdiction may |
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| buy property at the auction, or to sales by or
through the |
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| licensee.
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| (c) Nothing in this Act shall be construed to prohibit a |
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| person under the
age of 18 from selling property under $250 in |
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| value while under the direct
supervision of a licensed |
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| auctioneer.
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| (d) Nothing in this Act, except Section 10-27, shall be |
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| construed to
apply to a person while providing an Internet |
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| auction listing service as
defined
in Section 10-27.
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| (Source: P.A. 91-603, eff. 1-1-00; 92-798, eff. 8-15-02.)
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| (225 ILCS 407/10-5)
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| (Section scheduled to be repealed on January 1, 2010)
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| Sec. 10-5. Requirements for auctioneer license; |
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| application. Every
person
who desires
to obtain an auctioneer |
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| license under this Act shall:
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| (1) apply to the Department
OBRE on forms provided by |
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| the Department
OBRE accompanied by the required
fee;
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| (2) be at least 18 years of age;
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| (3) have attained a high school diploma or successfully |
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| completed an
equivalent
course of study determined by an |
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| examination conducted by the Illinois State
Board of |
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| Education;
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| (4) personally take and pass a written examination |
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| authorized by the Department
OBRE to
prove
competence, |
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| including but not limited to general knowledge of Illinois |
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| and
federal laws pertaining
to personal property |
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| contracts, auctions, real property, relevant provisions of
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| Article 4 of the
Uniform Commercial Code, ethics, and other |
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| topics relating to the auction
business; and
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| (5) submit to the Department
OBRE a properly completed |
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| 45-Day Permit Sponsor Card on
forms
provided by the |
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| Department
OBRE .
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| (Source: P.A. 91-603, eff. 1-1-00.)
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| (225 ILCS 407/10-15)
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| (Section scheduled to be repealed on January 1, 2010)
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| Sec. 10-15. Requirements for associate auctioneer license; |
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| application.
Every person
who desires to obtain an associate |
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| auctioneer license under this Act shall:
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| (1) apply to the Department
OBRE on forms provided by |
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| the Department
OBRE accompanied by the required
fee;
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| (2) be at least 18 years of age;
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| (3) have attained a high school diploma or successfully |
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| completed an
equivalent
course of study determined by an |
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| examination conducted by the Illinois State
Board of |
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| Education;
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| (4) personally take and pass a written examination |
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| authorized by the Department
OBRE to
prove
competence, |
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| including but not limited to general knowledge of Illinois |
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| and
federal laws pertaining
to personal property |
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| contracts, auctions, real property, relevant provisions of
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| Article 4 of the
Uniform Commercial Code, ethics, and other |
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| topics relating to the auction
business; and
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| (5) submit to the Department
OBRE a properly completed |
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| 45-day permit sponsor card on
forms
provided by the |
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| Department
OBRE .
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| (Source: P.A. 91-603, eff. 1-1-00.)
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| (225 ILCS 407/10-20)
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| (Section scheduled to be repealed on January 1, 2010)
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| Sec. 10-20. Requirements for auction firm license; |
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| application. Any
corporation, limited
liability company, or |
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| partnership who desires to obtain an auction firm license
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| shall:
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| (1) apply to the Department
OBRE on forms provided by |
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| the Department
OBRE accompanied by the required
fee;
and
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| (2) provide evidence to the Department
OBRE that the |
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| auction firm has a properly licensed
managing
auctioneer.
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| (Source: P.A. 91-603, eff. 1-1-00.)
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| (225 ILCS 407/10-27)
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| (Section scheduled to be repealed on January 1, 2010)
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| Sec. 10-27. Registration of Internet Auction Listing |
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| Service.
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| (a) For the purposes of this Section:
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| (1) "Internet Auction Listing Service" means a website |
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| on the Internet, or
other interactive computer service that |
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| is designed to allow or advertised as a
means of allowing |
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| users to offer personal property or services for sale or
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| lease to a prospective buyer or lessee through an on-line |
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| bid submission
process using that website or interactive |
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| computer service and that does not
examine, set the price, |
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| or prepare the description of the personal property or
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| service to be offered, or in any way utilize the services |
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| of a natural person
as an auctioneer.
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| (2) "Interactive computer service" means any |
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| information service, system,
or access software provider |
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| that provides or enables computer access by
multiple users |
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| to a computer server, including specifically a service or |
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| system
that provides access to the Internet.
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| (b) It is unlawful for any person, corporation, limited |
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| liability company,
partnership, or other entity to provide an |
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| Internet auction listing service in
the State of Illinois for |
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| compensation without being registered with the Department
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| Office
of Banks and Real Estate (OBRE) when:
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| (1) the person, corporation, limited liability |
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| company, partnership, or
other entity providing the |
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| Internet auction listing service is located in the
State of |
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| Illinois;
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| (2) the prospective seller or seller, prospective |
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| lessor or lessor, or
prospective purchaser or purchaser is |
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| located in the State of Illinois and is
required to agree |
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| to terms with the person, corporation, limited liability
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| company, partnership, or other entity providing the |
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| Internet auction listing
service, no matter where that |
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| person, corporation, limited liability
company, |
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| partnership, or other entity is located; or
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| (3) the personal property or services offered for sale |
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| or lease are
located or will be provided in the State of |
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| Illinois.
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| (c) Any person, corporation, limited liability company, |
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| partnership, or
other entity that provides an Internet auction |
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| listing service in the State of
Illinois for compensation under |
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| any of the circumstances listed in subsection
(b) shall |
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| register with the Department
OBRE on forms provided by the |
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| Department
OBRE accompanied by the
required fee as provided by |
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| rule. Such registration shall include
information as required |
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| by the Department
OBRE and established by rule as the |
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| Department
OBRE deems necessary
to enable users of the Internet |
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| auction listing service in Illinois to identify
the entity |
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| providing the service and to seek redress or further |
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| information
from such entity. The fee shall be sufficient to |
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| cover the reasonable costs of the Department
OBRE in |
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| administering and enforcing the provisions of this Section. The
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| registrant shall be required to certify:
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| (1) that the registrant does not act as the agent of |
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| users who sell items
on its website, and acts only as a |
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| venue for user transactions;
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| (2) that the registrant requires sellers and bidders to |
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| register with the
website and provide their name, address, |
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| telephone number and e-mail address;
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| (3) that the registrant retains such information for a |
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| period of at least
2 years;
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| (4) that the registrant retains transactional |
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| information consisting of at
least seller identification, |
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| high bidder identification, and item sold for at
least 2 |
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| years from the close of a transaction, and has a mechanism |
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| to identify
all transactions involving a particular seller |
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| or buyer;
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| (5) that the registrant has a mechanism to receive |
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| complaints or inquiries
from users;
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| (6) that the registrant adopts and reasonably |
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| implements a policy of
suspending, in appropriate |
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| circumstances, the accounts of users who, based on
the |
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| registrant's investigation, are proven to have engaged in a |
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| pattern of
activity that appears to be deliberately |
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| designed to defraud
consumers on the registrant's website; |
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| and
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| (7) that the registrant will comply with the Department
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| OBRE and law enforcement requests
for stored data in its |
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| possession, subject to the requirements of applicable
law.
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| (d) The Department
OBRE may refuse to accept a registration |
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| which is incomplete or not
accompanied by the required fee. The |
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| Department
OBRE may impose a civil penalty not to exceed
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| $10,000 upon any Internet auction listing service that |
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| intentionally fails to
register as required by this Section, |
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| and may impose such penalty or
revoke, suspend, or place on |
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| probation or administrative supervision
the registration of |
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| any Internet auction listing service that:
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| (1) intentionally makes a false or fraudulent material
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| representation or material misstatement or |
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| misrepresentation to the Department
OBRE in
connection |
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| with its registration, including in the certification |
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| required under
subsection (c);
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| (2) is convicted of any crime, an essential element of |
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| which is
dishonesty, fraud, larceny, embezzlement, or |
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| obtaining money, property,
or credit by false pretenses or |
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| by means of a confidence game; or is convicted
in this or |
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| another state of a crime that is a felony under the laws of |
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| this
State; or is convicted of a felony in a federal court;
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| (3) is adjudged to be a person under legal disability |
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| or subject to
involuntary admission or to meet the standard |
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| for judicial admission as
provided in the Mental Health and |
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| Developmental Disabilities Code;
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| (4) has been subject to discipline by another state, |
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| the District of
Columbia, a territory of the United States, |
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| a foreign nation, a governmental
agency, or any other |
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| entity authorized to impose discipline if at least one of
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| the grounds for that discipline is the same as or |
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| equivalent to one of the
grounds for discipline set forth |
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| in this Section or for failing to report to the Department
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| OBRE , within 30 days, any adverse final action taken |
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| against the
registrant by any other licensing or |
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| registering jurisdiction, government
agency, law |
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| enforcement agency, or court, or liability for conduct that |
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| would
constitute grounds for action as set forth in this |
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| Section;
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| (5) fails to make available to the Department
OBRE
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| personnel during normal business hours
all records and |
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| related documents maintained in connection with the |
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| activities
subject to registration under this Section;
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| (6) makes or files false records or reports in |
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| connection with activities
subject to registration, |
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| including but not limited to false records or reports
filed |
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| with State agencies;
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| (7) fails to provide information within 30 days in |
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| response to a written
request made by the Department
OBRE
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| to a person designated in the registration for receipt
of |
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| such requests; or
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| (8) fails to perform any act or procedure described in |
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| subsection (c) of
this Section.
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| (e) Registrations issued pursuant to this Section shall |
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| expire on
September 30 of odd-numbered years. A registrant |
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| shall submit a renewal
application to the Department
OBRE on |
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| forms provided by the Department
OBRE along with the required |
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| fee as
established by rule.
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| (f) Operating an Internet auction listing service under any |
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| of the
circumstances listed in subsection (b) without being |
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| currently registered under
this Section is declared to be |
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| adverse to the public welfare, to constitute a
public nuisance, |
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| and to cause irreparable harm to the public welfare. The |
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| Secretary
Commissioner of OBRE , the Attorney General of the |
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| State of Illinois, the
State's Attorney of any county in the |
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| State, or any other person may maintain
an action and apply for |
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| injunctive relief in any circuit court to enjoin the
person or |
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| entity from engaging in such practice.
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| (g) The provisions of Sections 20-25, 20-30, 20-35, 20-40, |
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| 20-45, 20-50,
20-55, 20-60 and 20-75 of this Act shall apply to |
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| any actions of the Department
OBRE
exercising its
authority |
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| under subsection (d) as if a person required to register under |
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| this
Section were a person holding or claiming to hold a |
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| license under this Act.
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| (h) The Department
OBRE shall have the authority to adopt |
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| such rules as may be necessary to
implement or interpret the |
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| provisions of this Section.
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| (Source: P.A. 92-798, eff. 8-15-02.)
|
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| (225 ILCS 407/10-30)
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| (Section scheduled to be repealed on January 1, 2010)
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| Sec. 10-30. Expiration, renewal, and continuing education.
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| (a) License expiration dates, renewal periods, renewal |
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| fees, and procedures for renewal of licenses issued under this |
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| Act shall be set by rule of the Department. An entity may renew |
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| its license by paying the required fee and by meeting the |
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| renewal requirements adopted by the Department under this |
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| Section.
A license issued under this Act shall expire every 2 |
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| years beginning on
September 30,
2001. The OBRE shall issue a |
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| renewal license without examination to an
applicant upon |
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| submission
of a completed renewal application and payment of |
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| the required fee.
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| (b) All renewal applicants must provide proof as determined |
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| by the Department of having met the continuing education |
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| requirements set forth by the Department by rule. At a minimum, |
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| the rules shall require an applicant for renewal licensure as |
13 |
| an auctioneer or associate auctioneer to provide proof of the |
14 |
| completion of at least 12 hours of continuing education during |
15 |
| the pre-renewal period preceding the expiration date of the |
16 |
| license from schools approved by the Department, as established |
17 |
| by rule.
The OBRE shall develop a program for continuing |
18 |
| education as established
in
Article 25
of this Act. No |
19 |
| auctioneer or associate auctioneer shall receive a renewal
|
20 |
| license without completing
12 hours of approved continuing |
21 |
| education course work during the pre-renewal
period prior to |
22 |
| the
expiration date of the license from continuing education |
23 |
| schools that are
approved by the OBRE, as
established in |
24 |
| Article 25 of this Act. The applicant shall verify on the
|
25 |
| application that he or she:
|
26 |
| (1) has complied with the continuing education |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| requirements; or
|
2 |
| (2) is exempt from the continuing education |
3 |
| requirements because it is his
or
her
first renewal and he |
4 |
| or she was initially licensed as an auctioneer or
associate |
5 |
| auctioneer during the
pre-renewal period prior to the |
6 |
| expiration date.
|
7 |
| (c) The Department, in its discretion, may waive |
8 |
| enforcement of the continuing education requirements of this |
9 |
| Section and shall adopt rules defining the standards and |
10 |
| criteria for such waiver.
A renewal applicant may request a |
11 |
| waiver of the continuing education
requirements under
|
12 |
| subsection (d) of this Section, but shall not practice as an |
13 |
| auctioneer or
associate auctioneer until
such waiver is granted |
14 |
| and a renewal license is issued.
|
15 |
| (d) (Blank).
The Commissioner, with the recommendation of |
16 |
| the Advisory Board, may
grant
a
renewal applicant a waiver from |
17 |
| all or part of the continuing education
requirements for the |
18 |
| pre-renewal
period if the applicant was not able to fulfill the |
19 |
| requirements as a
result of the following
conditions:
|
20 |
| (1) Service in the armed forces of the United States |
21 |
| during a substantial
part
of the
pre-renewal period.
|
22 |
| (2) Service as an elected State or federal official.
|
23 |
| (3) Service as a full-time employee of the OBRE.
|
24 |
| (4) Other extreme circumstances as recommended by the |
25 |
| Advisory Board.
|
26 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| (225 ILCS 407/10-35)
|
2 |
| (Section scheduled to be repealed on January 1, 2010)
|
3 |
| Sec. 10-35. Completed 45-day permit sponsor card; |
4 |
| termination by
sponsoring
auctioneer;
inoperative status.
|
5 |
| (a) No auctioneer or associate auctioneer shall conduct an |
6 |
| auction or
provide
an auction
service without being properly |
7 |
| sponsored by a licensed auctioneer or auction
firm.
|
8 |
| (b) The sponsoring auctioneer or sponsoring auction firm |
9 |
| shall prepare upon
forms provided
by the Department
OBRE and |
10 |
| deliver to each auctioneer or associate auctioneer employed by
|
11 |
| or associated with
the sponsoring auctioneer or sponsoring |
12 |
| auction firm a properly completed
duplicate 45-day permit
|
13 |
| sponsor card certifying that the person whose name appears |
14 |
| thereon is in fact
employed by or
associated with said |
15 |
| sponsoring auctioneer or sponsoring auction firm. The
|
16 |
| sponsoring auctioneer
or sponsoring auction firm shall send the |
17 |
| original 45-day permit sponsor card,
along with a valid
|
18 |
| terminated license or other authorization as provided by rule |
19 |
| and the
appropriate fee, to the Department
OBRE
within 24 hours |
20 |
| after the issuance of the sponsor card. It is a violation of
|
21 |
| this Act for any sponsoring
auctioneer or sponsoring auction |
22 |
| firm to issue a sponsor card to any
auctioneer, associate |
23 |
| auctioneer,
or applicant, unless the auctioneer, associate |
24 |
| auctioneer, or applicant
presents in hand a valid
terminated |
25 |
| license or other authorization, as provided by rule.
|
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| (c) An auctioneer may be self-sponsored or may be sponsored |
2 |
| by another
licensed auctioneer
or auction firm.
|
3 |
| (d) An associate auctioneer must be sponsored by a licensed |
4 |
| auctioneer or
auction firm.
|
5 |
| (e) When an auctioneer or associate auctioneer terminates |
6 |
| his or her
employment
or
association with a sponsoring |
7 |
| auctioneer or sponsoring auction firm or the
employment or
|
8 |
| association is terminated by the sponsoring auctioneer or |
9 |
| sponsoring auction
firm, the terminated
licensee shall obtain |
10 |
| from that sponsoring auctioneer or sponsoring auction
firm his |
11 |
| or her license
endorsed by the sponsoring auctioneer or |
12 |
| sponsoring auction firm indicating the
termination. The
|
13 |
| terminating sponsoring auctioneer or sponsoring auction firm |
14 |
| shall send a copy
of the terminated
license within 5 days after |
15 |
| the termination to the Department
OBRE or shall notify the |
16 |
| Department
OBRE in writing of the
termination and explain why a |
17 |
| copy of the terminated license was not
surrendered.
|
18 |
| (f) The license of any auctioneer or associate auctioneer |
19 |
| whose association
with a sponsoring
auctioneer or sponsoring |
20 |
| auction firm has terminated shall automatically become
|
21 |
| inoperative
immediately upon such termination, unless the |
22 |
| terminated licensee accepts
employment or becomes
associated |
23 |
| with a new sponsoring auctioneer or sponsoring auction firm |
24 |
| pursuant
to subsection (g)
of this Section. An inoperative |
25 |
| licensee under this Act shall not conduct an
auction or provide
|
26 |
| auction services while the license is in inoperative status.
|
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| (g) When a terminated or inoperative auctioneer or |
2 |
| associate auctioneer
accepts employment
or becomes associated |
3 |
| with a new sponsoring auctioneer or sponsoring auction
firm, |
4 |
| the new
sponsoring auctioneer or sponsoring auction firm shall |
5 |
| send to the Department
OBRE a
properly completed 45-day
permit |
6 |
| sponsor card, the terminated license, and the appropriate fee.
|
7 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
8 |
| (225 ILCS 407/10-40)
|
9 |
| (Section scheduled to be repealed on January 1, 2010)
|
10 |
| Sec. 10-40. Restoration.
|
11 |
| (a) A licensee whose license has lapsed or expired shall |
12 |
| have 2 years from
the
expiration date
to restore his or her |
13 |
| license without examination. The expired licensee shall
make |
14 |
| application to the Department
OBRE on forms provided by the |
15 |
| Department
OBRE , including a properly completed 45-day
permit |
16 |
| sponsor card,
provide evidence of successful completion of 12 |
17 |
| hours of approved continuing
education during the
period of |
18 |
| time the license had lapsed, and pay all lapsed fees and |
19 |
| penalties as
established by
administrative rule.
|
20 |
| (b) Notwithstanding any other provisions of this Act to the |
21 |
| contrary, any
licensee whose
license under this Act has expired |
22 |
| is eligible to restore such license without
paying any lapsed |
23 |
| fees
and penalties provided that the license expired while the |
24 |
| licensee was:
|
25 |
| (1) on active duty with the United States Army, United |
|
|
|
09500HB1406sam001 |
- 20 - |
LRB095 04356 RAS 36457 a |
|
|
1 |
| States
State Marine Corps,
United
States Navy, United |
2 |
| States Air Force, United States Coast Guard, the State
|
3 |
| Militia called into service
or training;
|
4 |
| (2) engaged in training or education under the |
5 |
| supervision of the United
States
prior
to induction into |
6 |
| military service; or
|
7 |
| (3) serving as an employee of the Department
OBRE , |
8 |
| while the employee was required to
surrender his or her |
9 |
| license due to a possible conflict of interest.
|
10 |
| A licensee shall be eligible to restore a license under the |
11 |
| provisions of
this subsection for a
period of 2 years following |
12 |
| the termination of the service, education, or
training by |
13 |
| providing a
properly completed application and 45-day permit |
14 |
| sponsor card, provided that
the termination was
by other than |
15 |
| dishonorable discharge and provided that the licensee |
16 |
| furnishes
the Department
OBRE with an
affidavit specifying that |
17 |
| the licensee has been so engaged.
|
18 |
| (c) At any time after the suspension, revocation, placement |
19 |
| on probationary
status, or other
disciplinary action taken |
20 |
| under this Act with reference to any license, the Department
|
21 |
| OBRE may restore the
license to the licensee without |
22 |
| examination upon the order of the Secretary
Commissioner ,
if |
23 |
| the licensee
submits a properly completed application and |
24 |
| 45-day permit sponsor card, pays
appropriate fees, and
|
25 |
| otherwise complies with the conditions of the order.
|
26 |
| (Source: P.A. 91-603, eff. 1-1-00; revised 10-11-05.)
|
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| (225 ILCS 407/10-45)
|
2 |
| (Section scheduled to be repealed on January 1, 2010)
|
3 |
| Sec. 10-45. Nonresident auctioneer reciprocity.
|
4 |
| (a) A person holding a license to engage in auctions issued |
5 |
| to him or her by
the proper
authority of a state, territory, or |
6 |
| possession of the United States of America
or the District of
|
7 |
| Columbia that has licensing requirements equal to or |
8 |
| substantially equivalent
to the requirements
of this State and |
9 |
| that otherwise meets the requirements of this Act may obtain
a |
10 |
| license under this
Act without examination, provided:
|
11 |
| (1) that the Department
OBRE has entered into a valid |
12 |
| reciprocal agreement with the
proper
authority of the |
13 |
| state, territory, or possession of the United States of
|
14 |
| America or the District of
Columbia from which the |
15 |
| nonresident applicant has a valid license;
|
16 |
| (2) that the applicant provides the Department
OBRE
|
17 |
| with a certificate of good
standing
from the
applicant's |
18 |
| resident state;
|
19 |
| (3) that the applicant completes and submits an |
20 |
| application as provided by
the Department
OBRE ;
and
|
21 |
| (4) that the applicant pays all applicable fees |
22 |
| required under this Act.
|
23 |
| (b) A nonresident applicant shall file an irrevocable |
24 |
| consent with the Department
OBRE
that actions may
be commenced |
25 |
| against the applicant or nonresident licensee in a court of
|
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| competent jurisdiction in
this State by the service of summons, |
2 |
| process, or other pleading authorized by
the law upon the |
3 |
| Secretary
Commissioner . The consent shall stipulate and agree |
4 |
| that service of the
process, summons, or
pleading upon the |
5 |
| Secretary
Commissioner shall be taken and held in all courts to |
6 |
| be
valid and binding as if
actual service had been made upon |
7 |
| the applicant in Illinois. If a summons,
process, or other |
8 |
| pleading
is served upon the Secretary
Commissioner , it shall be |
9 |
| by duplicate copies, one of which
shall be retained by
the |
10 |
| Department
OBRE and the other immediately forwarded by |
11 |
| certified or registered mail to
the last known
business address |
12 |
| of the applicant or nonresident licensee against whom the
|
13 |
| summons, process, or other
pleading may be directed.
|
14 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
15 |
| (225 ILCS 407/10-50)
|
16 |
| (Section scheduled to be repealed on January 1, 2010)
|
17 |
| Sec. 10-50. Fees. Fees shall be determined by rule and |
18 |
| shall be non-refundable.
The OBRE shall provide by |
19 |
| administrative rule for fees
to be paid by
applicants, |
20 |
| licensees, and schools to cover the reasonable costs of the |
21 |
| OBRE in
administering and
enforcing the provisions of this Act.
|
22 |
| The Department
OBRE shall provide by administrative
rule for |
23 |
| fees to be
collected from licensees and applicants to cover the |
24 |
| statutory requirements for
funding the
Auctioneer Recovery |
25 |
| Fund. The Department
OBRE may also provide by administrative |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| rule for
general fees to
cover the reasonable expenses of |
2 |
| carrying out other functions and
responsibilities under this |
3 |
| Act.
|
4 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
5 |
| (225 ILCS 407/20-5)
|
6 |
| (Section scheduled to be repealed on January 1, 2010)
|
7 |
| Sec. 20-5. Unlicensed practice; civil penalty.
|
8 |
| (a) Any person who practices, offers to practice, attempts |
9 |
| to practice, or
holds oneself out to
practice as an auctioneer, |
10 |
| an associate auctioneer, an auction firm, or any
other licensee |
11 |
| under this
Act without being licensed under this Act shall, in |
12 |
| addition to any other
penalty provided by law,
pay a civil |
13 |
| penalty
fine to the Department
OBRE in an amount not to exceed |
14 |
| $10,000 for each offense as
determined by the Department
OBRE . |
15 |
| The civil penalty fine shall be assessed by the Department
OBRE
|
16 |
| after a hearing is held in
accordance with the
provisions set |
17 |
| forth in this Act regarding a hearing for the discipline of a
|
18 |
| license.
|
19 |
| (b) The Department
OBRE has the authority and power to |
20 |
| investigate any and all
unlicensed
activity
pursuant to this |
21 |
| Act.
|
22 |
| (c) The civil penalty
fine shall be paid within 60 days |
23 |
| after the effective date of
the
order imposing
the civil |
24 |
| penalty
fine . The order shall constitute a judgment
judgement
|
25 |
| and may be filed and
execution had thereon
in the same manner |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| from any court of record.
|
2 |
| (d) Conducting an auction or providing an auction service |
3 |
| in Illinois
without
holding a valid
and current license under |
4 |
| this Act is declared to be adverse to the public
welfare, to |
5 |
| constitute a
public nuisance, and to cause irreparable harm to |
6 |
| the public welfare. The Secretary
Commissioner , the
Attorney |
7 |
| General, the State's Attorney of any county in the State, or |
8 |
| any other
person may maintain
an action in the name of the |
9 |
| People of the State of Illinois and may apply for
injunctive |
10 |
| relief in any
circuit court to enjoin the person or entity from |
11 |
| engaging in such practice.
|
12 |
| Upon the filing of a verified petition in a circuit court, |
13 |
| the court, if
satisfied by affidavit or
otherwise that the |
14 |
| person or entity has been engaged in the practice of
auctioning |
15 |
| without a valid and
current license, may enter a temporary |
16 |
| restraining order without notice or bond
enjoining the
|
17 |
| defendant from further practice. Only the showing of |
18 |
| non-licensure, by
affidavit or otherwise, is
necessary in order |
19 |
| for a temporary injunction to be issued. A copy of the
verified |
20 |
| complaint shall
be served upon the defendant and the |
21 |
| proceedings shall thereafter be conducted
as in other civil |
22 |
| cases
except as modified by this Section. If it is established |
23 |
| that the defendant
has been or is engaged in
unlawful practice, |
24 |
| the court may enter an order or judgment perpetually
enjoining |
25 |
| the defendant from
further practice. In all proceedings |
26 |
| hereunder, the court, in its discretion,
may apportion the |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| costs
among the parties interested in the action, including |
2 |
| cost of filing the
complaint, service of process,
witness fees |
3 |
| and expenses, court reporter charges, and reasonable |
4 |
| attorneys'
fees. In case of violation
of any injunctive order |
5 |
| entered under the provisions of this Section, the court
may |
6 |
| summarily try and
punish the offender for contempt of court. |
7 |
| These injunction proceedings shall
be in addition to, and
not |
8 |
| in lieu of, all penalties and other remedies provided in this |
9 |
| Act.
|
10 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
11 |
| (225 ILCS 407/20-15)
|
12 |
| (Section scheduled to be repealed on January 1, 2010)
|
13 |
| Sec. 20-15. Disciplinary actions; grounds. The Department
|
14 |
| OBRE may refuse to issue
or renew a
license, may place on |
15 |
| probation or administrative supervision, suspend, or
revoke |
16 |
| any license or may
reprimand or take other disciplinary or |
17 |
| non-disciplinary action as the Department may deem proper, |
18 |
| including the imposition of fines
otherwise discipline or |
19 |
| impose a civil fine not to exceed $10,000 for each violation |
20 |
| upon anyone licensed under this Act for any of the following |
21 |
| reasons
upon any licensee
hereunder for any one or any |
22 |
| combination of the following causes :
|
23 |
| (1) False or fraudulent representation or material |
24 |
| misstatement in
furnishing
information to the Department
|
25 |
| OBRE in obtaining or seeking to obtain a license.
|
|
|
|
09500HB1406sam001 |
- 26 - |
LRB095 04356 RAS 36457 a |
|
|
1 |
| (2) Violation of any provision of this Act or the rules |
2 |
| promulgated
pursuant
to this
Act.
|
3 |
| (3) Conviction of or entry of a plea of guilty or nolo |
4 |
| contendere to any crime that is a felony , an essential |
5 |
| element of which is dishonesty
or
fraud, or
larceny, |
6 |
| embezzlement, or obtaining money, property, or credit by |
7 |
| false
pretenses or by means of
a confidence game, |
8 |
| conviction in this or another state of a crime that is a
|
9 |
| felony under the laws of
this State, or conviction of a |
10 |
| felony in a federal court.
|
11 |
| (4) Being adjudged to be a person under legal |
12 |
| disability or subject to
involuntary
admission or to meet |
13 |
| the standard for judicial admission as provided in the
|
14 |
| Mental Health and
Developmental Disabilities Code.
|
15 |
| (5) Discipline of a licensee by another state, the |
16 |
| District of Columbia, a
territory of
the United States, a |
17 |
| foreign nation, a governmental agency, or any other entity
|
18 |
| authorized to impose
discipline if at least one of the |
19 |
| grounds for that discipline is the same as or
the |
20 |
| equivalent to one of
the grounds for discipline set forth |
21 |
| in this Act or for failing to report to
the Department
|
22 |
| OBRE , within 30 days,
any adverse final action taken |
23 |
| against the licensee by any other licensing
jurisdiction,
|
24 |
| government agency, law enforcement agency, or court, or |
25 |
| liability for conduct
that would constitute
grounds for |
26 |
| action as set forth in this Act.
|
|
|
|
09500HB1406sam001 |
- 27 - |
LRB095 04356 RAS 36457 a |
|
|
1 |
| (6) Engaging in the practice of auctioneering, |
2 |
| conducting an auction, or
providing an
auction service |
3 |
| without a license or after the license was expired, |
4 |
| revoked,
suspended, or terminated
or while the license was |
5 |
| inoperative.
|
6 |
| (7) Attempting to subvert or cheat on the auctioneer |
7 |
| exam or any
continuing
education exam, or aiding or |
8 |
| abetting another to do the same.
|
9 |
| (8) Directly or indirectly giving to or receiving from |
10 |
| a person, firm,
corporation,
partnership, or association a |
11 |
| fee, commission, rebate, or other form of
compensation for |
12 |
| professional
service not actually or personally rendered.
|
13 |
| (9) Making any substantial misrepresentation or |
14 |
| untruthful advertising.
|
15 |
| (10) Making any false promises of a character likely to |
16 |
| influence,
persuade,
or
induce.
|
17 |
| (11) Pursuing a continued and flagrant course of |
18 |
| misrepresentation or the
making of
false promises through a |
19 |
| licensee, agent, employee, advertising, or otherwise.
|
20 |
| (12) Any misleading or untruthful advertising, or |
21 |
| using any trade name or
insignia
of membership in any |
22 |
| auctioneer association or organization of which the
|
23 |
| licensee is not a member.
|
24 |
| (13) Commingling funds of others with his or her own |
25 |
| funds or failing to
keep
the
funds of others in an escrow |
26 |
| or trustee account.
|
|
|
|
09500HB1406sam001 |
- 28 - |
LRB095 04356 RAS 36457 a |
|
|
1 |
| (14) Failure to account for, remit, or return any |
2 |
| moneys, property, or
documents
coming into his or her |
3 |
| possession that belong to others, acquired through the
|
4 |
| practice of
auctioneering, conducting an auction, or |
5 |
| providing an auction service within 30
days of the written
|
6 |
| request from the owner of said moneys, property, or |
7 |
| documents.
|
8 |
| (15) Failure to maintain and deposit into a special |
9 |
| account, separate and
apart from
any personal or other |
10 |
| business accounts, all moneys belonging to others
|
11 |
| entrusted to a licensee while
acting as an auctioneer, |
12 |
| associate auctioneer, auction firm, or as a temporary
|
13 |
| custodian of the funds
of others.
|
14 |
| (16) Failure to make available to Department
OBRE
|
15 |
| personnel during normal business
hours
all
escrow and |
16 |
| trustee records and related documents maintained in |
17 |
| connection with
the practice of
auctioneering, conducting |
18 |
| an auction, or providing an auction service within 24
hours |
19 |
| after a request
from Department
OBRE personnel.
|
20 |
| (17) Making or filing false records or reports in his |
21 |
| or her practice,
including but not
limited to false records |
22 |
| or reports filed with State agencies.
|
23 |
| (18) Failing to voluntarily furnish copies of all |
24 |
| written instruments
prepared by the
auctioneer and signed |
25 |
| by all parties to all parties at the time of execution.
|
26 |
| (19) Failing to provide information within 30 days in |
|
|
|
09500HB1406sam001 |
- 29 - |
LRB095 04356 RAS 36457 a |
|
|
1 |
| response to a
written
request
made by the Department
OBRE .
|
2 |
| (20) Engaging in any act that constitutes a violation |
3 |
| of Section 2-102,
3-103, or
3-105 of the Illinois Human |
4 |
| Rights Act.
|
5 |
| (21) Causing a payment from the Auction Recovery Fund.
|
6 |
| (22) Engaging in dishonorable, unethical, or |
7 |
| unprofessional conduct of a
character
likely to deceive, |
8 |
| defraud, or harm the public.
|
9 |
| (23) Offering or advertising real estate for sale or |
10 |
| lease at auction
without
a valid
broker or salesperson's |
11 |
| license under the Real Estate License Act of 1983, or
any |
12 |
| successor Act,
unless exempt from licensure under the terms |
13 |
| of the Real Estate License Act of 2001
1983 , or any
|
14 |
| successor Act.
|
15 |
| (24) Physical illness, mental illness, or other |
16 |
| impairment including without limitation deterioration |
17 |
| through the aging process, mental illness, or disability |
18 |
| that results in the inability to practice the profession |
19 |
| with reasonable judgment, skill, and safety. |
20 |
| (25) A pattern of practice or other behavior that
|
21 |
| demonstrates incapacity or incompetence to practice under |
22 |
| this Act. |
23 |
| (26) Being named as a perpetrator in an indicated
|
24 |
| report by the Department of Children and Family Services |
25 |
| under the Abused and Neglected Child Reporting Act and upon |
26 |
| proof by clear and convincing evidence that the licensee |
|
|
|
09500HB1406sam001 |
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|
1 |
| has caused a child to be an abused child or a neglected |
2 |
| child as defined in the Abused and Neglected Child |
3 |
| Reporting Act. |
4 |
| (27) Habitual or excessive use or addiction to
alcohol, |
5 |
| narcotics, stimulants, or any other chemical agent or drug |
6 |
| that results in a licensee's inability to practice with |
7 |
| reasonable judgment, skill, or safety. |
8 |
| (28) Wilfully failing to report an instance of
|
9 |
| suspected child abuse or neglect as required by the Abused |
10 |
| and Neglected Child Reporting Act. |
11 |
| The entry of an order by a circuit court establishing that |
12 |
| any person holding a license under this Act is subject to |
13 |
| involuntary admission or judicial admission, as provided for in |
14 |
| the Mental Health and Developmental Disabilities Code, |
15 |
| operates as an automatic suspension of that license. That |
16 |
| person may have his or her license restored only upon the |
17 |
| determination by a circuit court that the patient is no longer |
18 |
| subject to involuntary admission or judicial admission and the |
19 |
| issuance of an order so finding and discharging the patient and |
20 |
| upon the Board's recommendation to the Department that the |
21 |
| license be restored. Where circumstances so indicate, the Board |
22 |
| may recommend to the Department that it require an examination |
23 |
| prior to restoring a suspended license. |
24 |
| If the Department or Board finds an individual unable to |
25 |
| practice because of the reasons set forth in this Section, the |
26 |
| Department or Board may require that individual to submit to |
|
|
|
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|
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| care, counseling, or treatment by physicians approved or |
2 |
| designated by the Department or Board, as a condition, term, or |
3 |
| restriction for continued, reinstated, or renewed licensure to |
4 |
| practice; or, in lieu of care, counseling, or treatment, the |
5 |
| Department may file, or the Board may recommend to the |
6 |
| Department to file, a complaint to immediately suspend, revoke, |
7 |
| or otherwise discipline the license of the individual. An |
8 |
| individual whose license was granted, continued, reinstated, |
9 |
| renewed, disciplined or supervised subject to such terms, |
10 |
| conditions, or restrictions, and who fails to comply with such |
11 |
| terms, conditions, or restrictions, shall be referred to the |
12 |
| Secretary for a determination as to whether the individual |
13 |
| shall have his or her license suspended immediately, pending a |
14 |
| hearing by the Department.
In instances in which the Secretary |
15 |
| immediately suspends a person's license under this Section, a |
16 |
| hearing on that person's license must be convened by the |
17 |
| Department within 21 days after the suspension and completed |
18 |
| without appreciable delay. The Department and Board shall have |
19 |
| the authority to review the subject individual's record of |
20 |
| treatment and counseling regarding the impairment to the extent |
21 |
| permitted by applicable federal statutes and regulations |
22 |
| safeguarding the confidentiality of medical records. |
23 |
| An individual licensed under this Act and affected under |
24 |
| this Section shall be afforded an opportunity to demonstrate to |
25 |
| the Department or Board that he or she can resume practice in |
26 |
| compliance with acceptable and prevailing standards under the |
|
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|
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| provisions of his or her license. |
2 |
| In enforcing this Section, the Department or Board, upon a |
3 |
| showing of a possible violation, may compel an individual |
4 |
| licensed to practice under this Act, or who has applied for |
5 |
| licensure under this Act, to submit to a mental or physical |
6 |
| examination, or both, as required by and at the expense of the |
7 |
| Department. The Department or Board may order the examining |
8 |
| physician to present testimony concerning the mental or |
9 |
| physical examination of the licensee or applicant. No |
10 |
| information shall be excluded by reason of any common law or |
11 |
| statutory privilege relating to communications between the |
12 |
| licensee or applicant and the examining physician. The |
13 |
| examining physicians shall be specifically designated by the |
14 |
| Board or Department. The individual to be examined may have, at |
15 |
| his or her own expense, another physician of his or her choice |
16 |
| present during all aspects of this examination. Failure of an |
17 |
| individual to submit to a mental or physical examination when |
18 |
| directed shall be grounds for suspension of his or her license |
19 |
| until the individual submits to the examination, if the |
20 |
| Department finds that, after notice and hearing, the refusal to |
21 |
| submit to the examination was without reasonable cause.
|
22 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
23 |
| (225 ILCS 407/20-20)
|
24 |
| (Section scheduled to be repealed on January 1, 2010)
|
25 |
| Sec. 20-20. Termination without hearing for failure to pay |
|
|
|
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|
1 |
| taxes, child
support, or a
student loan. The Department
OBRE
|
2 |
| may terminate or otherwise discipline any license issued
under |
3 |
| this Act without
hearing if the appropriate administering |
4 |
| agency provides adequate information
and proof that the
|
5 |
| licensee has:
|
6 |
| (1) failed to file a return, to pay the tax, penalty, |
7 |
| or interest shown in
a filed return,
or to pay any final |
8 |
| assessment of tax, penalty, or interest, as required by any
|
9 |
| tax act administered by
the Illinois Department of Revenue |
10 |
| until the requirements of the tax act are
satisfied;
|
11 |
| (2) failed to pay any court ordered child support as |
12 |
| determined by a court
order or by
referral from the |
13 |
| Department of Healthcare and Family Services (formerly
|
14 |
| Illinois Department of Public Aid ) ; or
|
15 |
| (3) failed to repay any student loan or assistance as |
16 |
| determined by the
Illinois Student
Assistance |
17 |
| Commission.
If a license is terminated or otherwise |
18 |
| disciplined pursuant to this Section,
the licensee may
|
19 |
| request a hearing as provided by this Act within 30 days of |
20 |
| notice of
termination or discipline.
|
21 |
| (Source: P.A. 91-603, eff. 1-1-00; revised 12-15-05.)
|
22 |
| (225 ILCS 407/20-25)
|
23 |
| (Section scheduled to be repealed on January 1, 2010)
|
24 |
| Sec. 20-25. Investigation. The Department
OBRE may |
25 |
| investigate the actions or
qualifications of any
person or |
|
|
|
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|
1 |
| persons holding or claiming to hold a license under this Act , |
2 |
| who
shall hereinafter be
called the respondent .
|
3 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
4 |
| (225 ILCS 407/20-30)
|
5 |
| (Section scheduled to be repealed on January 1, 2010)
|
6 |
| Sec. 20-30. Consent orders. Notwithstanding any provisions |
7 |
| concerning
the
conduct of
hearings and recommendations for |
8 |
| disciplinary actions, the Department
OBRE has the authority
to |
9 |
| negotiate
agreements with licensees and applicants resulting |
10 |
| in disciplinary consent
orders. The consent
orders may provide |
11 |
| for any form of discipline provided for in this Act. The
|
12 |
| consent orders shall
provide that they were not entered into as |
13 |
| a result of any coercion by the Department
OBRE .
Any consent |
14 |
| order
shall be accepted by or rejected by the Secretary
|
15 |
| Commissioner in a timely manner.
|
16 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
17 |
| (225 ILCS 407/20-35)
|
18 |
| (Section scheduled to be repealed on January 1, 2010)
|
19 |
| Sec. 20-35. Subpoenas; attendance of witnesses; oaths.
|
20 |
| (a) The Department
OBRE shall have the power to issue |
21 |
| subpoenas ad testificandum (subpoena
for
documents) and to |
22 |
| bring before it any persons and to take testimony, either
|
23 |
| orally or by deposition
or both, with the same fees and mileage |
24 |
| and in the same manner as prescribed in
civil cases in the
|
|
|
|
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|
1 |
| courts of this State. The Department
OBRE shall have the power |
2 |
| to issue subpoenas duces tecum
and to bring before
it any |
3 |
| documents, papers, files, books, and records with the same |
4 |
| costs and in
the same manner as
prescribed in civil cases in |
5 |
| the courts of this State.
|
6 |
| (b) Any circuit court may, upon application of the |
7 |
| Department
OBRE or its designee or of
the
applicant,
licensee, |
8 |
| or person holding a certificate of licensure against whom |
9 |
| proceedings
under this Act are
pending, enter an order |
10 |
| compelling the enforcement of any Department
OBRE subpoena |
11 |
| issued
in connection
with any hearing or investigation.
|
12 |
| (c) The Secretary
Commissioner or his or her designee or |
13 |
| the Board shall have power to
administer
oaths to witnesses at |
14 |
| any hearing that the Department
OBRE is authorized to conduct |
15 |
| and any
other oaths authorized
in any Act administered by the |
16 |
| Department
OBRE .
|
17 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
18 |
| (225 ILCS 407/20-40)
|
19 |
| (Section scheduled to be repealed on January 1, 2010)
|
20 |
| Sec. 20-40. Hearings; record of hearings.
|
21 |
| (a) The Department
OBRE shall have the authority to conduct |
22 |
| hearings before the Advisory
Board
on
proceedings to revoke, |
23 |
| suspend, place on probation or administrative review,
|
24 |
| reprimand, or refuse
to issue or renew any license under this |
25 |
| Act or to impose a civil penalty not
to exceed $10,000 upon
any |
|
|
|
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|
1 |
| licensee under this Act.
|
2 |
| (b) The Department
OBRE , at its expense, shall preserve a |
3 |
| record of all proceedings at the
formal hearing of
any case |
4 |
| involving the discipline of any license under this Act. The |
5 |
| notice of
hearing, complaint and
all other documents in the |
6 |
| nature of pleadings and written motions filed in the
|
7 |
| proceedings, the
transcript of testimony, the report of the |
8 |
| Board, and the order of the Department
OBRE shall
be the record |
9 |
| of
proceeding. At all hearings or prehearing conference, the |
10 |
| Department
OBRE and the respondent
shall be entitled
to have a |
11 |
| court reporter in attendance for purposes of transcribing the
|
12 |
| proceeding or prehearing
conference.
|
13 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
14 |
| (225 ILCS 407/20-45)
|
15 |
| (Section scheduled to be repealed on January 1, 2010)
|
16 |
| Sec. 20-45. Notice. The Department
OBRE shall (i) notify |
17 |
| the respondent in writing at
least 30 days prior
to the date |
18 |
| set for the hearing of any charges made and the time and place |
19 |
| for
the hearing of the
charges to be heard under oath and (ii) |
20 |
| inform the respondent that, upon
failure to file an answer
|
21 |
| before the date originally set for the hearing, default will be |
22 |
| taken against
the
respondent and the
respondent's license may |
23 |
| be suspended, revoked, or otherwise disciplined as the |
24 |
| Department
OBRE may deem
proper before taking any disciplinary |
25 |
| action with regard to any license under
this Act.
|
|
|
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|
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| If the respondent fails to file an answer after receiving |
2 |
| notice, the
respondent's license may,
in the discretion of the |
3 |
| Department
OBRE , be revoked, suspended, or otherwise |
4 |
| disciplined as
deemed proper,
without a hearing, if the act or |
5 |
| acts charged constitute sufficient grounds for
such action |
6 |
| under this
Act.
|
7 |
| At the time and place fixed in the notice, the Department
|
8 |
| OBRE shall proceed to hearing of
the charges and
both the |
9 |
| respondent and the complainant shall be accorded ample |
10 |
| opportunity to
present in person
or by counsel such statements, |
11 |
| testimony, evidence, and argument as may be
pertinent to the |
12 |
| charges
or any defense thereto.
|
13 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
14 |
| (225 ILCS 407/20-50)
|
15 |
| (Section scheduled to be repealed on January 1, 2010)
|
16 |
| Sec. 20-50. Board's findings of fact, conclusions of law, |
17 |
| and
recommendation to the Secretary
Commissioner . At the |
18 |
| conclusion of the hearing, the Advisory Board shall
present to |
19 |
| the Secretary
Commissioner a written report of its findings of |
20 |
| facts, conclusions of law, and
recommendations
regarding |
21 |
| discipline or a fine. The report shall contain a finding |
22 |
| whether or
not the accused person
violated this Act or failed |
23 |
| to comply with the conditions required in this Act.
The |
24 |
| Advisory Board
shall specify the nature of the violation or |
25 |
| failure to comply and shall make
its recommendations to
the |
|
|
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09500HB1406sam001 |
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|
1 |
| Secretary
Commissioner .
|
2 |
| If the Secretary
Commissioner disagrees in any regard with |
3 |
| the report of the Advisory
Board, the Secretary
Commissioner
|
4 |
| may issue an order in contravention of the report. The |
5 |
| Secretary
Commissioner shall provide
a written report to the |
6 |
| Advisory Board on any deviation and shall specify with
|
7 |
| particularity the
reasons for that action in the final order.
|
8 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
9 |
| (225 ILCS 407/20-55)
|
10 |
| (Section scheduled to be repealed on January 1, 2010)
|
11 |
| Sec. 20-55. Motion for rehearing; rehearing. In any hearing |
12 |
| involving
the
discipline of
a license, a copy of the Advisory |
13 |
| Board's report shall be served upon the
respondent by the |
14 |
| Department
OBRE , either
personally or as provided in this Act |
15 |
| for the service of the notice of hearing.
Within 20 calendar
|
16 |
| days after the service, the respondent may present to the |
17 |
| Department
OBRE a motion in writing
for a rehearing,
which |
18 |
| shall specify the particular grounds for rehearing.
|
19 |
| If no motion for rehearing is filed, then upon the |
20 |
| expiration of the time
specified for filing
a motion, or if a |
21 |
| motion for rehearing is denied, then upon denial, the Secretary
|
22 |
| Commissioner may enter an
order in accordance with the |
23 |
| recommendations of the Advisory Board, except as
provided for |
24 |
| in this
Act. If the respondent orders a transcript of the |
25 |
| record from the reporting
service and pays for it
within the |
|
|
|
09500HB1406sam001 |
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|
1 |
| time for filing a motion for rehearing, the 20 calendar day |
2 |
| period
within which a motion
for rehearing may be filed shall |
3 |
| commence upon the delivery of the transcript
to the respondent.
|
4 |
| Whenever the Secretary
Commissioner is not satisfied that |
5 |
| substantial justice has been
done in the hearing or
in the |
6 |
| Advisory Board's report, the Secretary
Commissioner may order a |
7 |
| rehearing by the
same.
|
8 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
9 |
| (225 ILCS 407/20-60)
|
10 |
| (Section scheduled to be repealed on January 1, 2010)
|
11 |
| Sec. 20-60. Order; certified copy. An order or a certified |
12 |
| copy of an
order, over the seal
of the Department
OBRE and |
13 |
| purporting to be signed by the Secretary
Commissioner or his or |
14 |
| her designee,
shall be prima
facie proof that:
|
15 |
| (1) the signature is the genuine signature of the |
16 |
| Secretary
Commissioner or his or
her
designee;
|
17 |
| (2) the Secretary
Commissioner is duly appointed and |
18 |
| qualified; and
|
19 |
| (3) the Advisory Board is duly appointed and qualified.
|
20 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
21 |
| (225 ILCS 407/20-65)
|
22 |
| (Section scheduled to be repealed on January 1, 2010)
|
23 |
| Sec. 20-65. Restoration of license. At any time after the |
24 |
| suspension or
revocation of any
license, the Department
OBRE
|
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
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|
1 |
| may restore the license to the accused person upon the written
|
2 |
| recommendation of
the Advisory Board, unless after an |
3 |
| investigation and a hearing the Advisory
Board determines that
|
4 |
| restoration is not in the public interest.
|
5 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
6 |
| (225 ILCS 407/20-70)
|
7 |
| (Section scheduled to be repealed on January 1, 2010)
|
8 |
| Sec. 20-70. Surrender of license. Upon the revocation or |
9 |
| suspension of
any license the
licensee shall immediately |
10 |
| surrender the license to the Department
OBRE . If the licensee
|
11 |
| fails to do so, the Department
OBRE shall
have the right to |
12 |
| seize the license.
|
13 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
14 |
| (225 ILCS 407/20-75)
|
15 |
| (Section scheduled to be repealed on January 1, 2010)
|
16 |
| Sec. 20-75. Administrative Review Law. All final |
17 |
| administrative
decisions
of the Department
OBRE are
subject to |
18 |
| judicial review under the Administrative Review Law and its |
19 |
| rules.
The term
"administrative decision" is defined as in |
20 |
| Section 3-101 of the Code of Civil
Procedure.
|
21 |
| Proceedings for judicial review shall be commenced in the |
22 |
| circuit court of
the
county in
which the party applying for |
23 |
| review resides, but if the party is not a resident
of this |
24 |
| State, the venue
shall be in Cook or Sangamon County.
|
|
|
|
09500HB1406sam001 |
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|
|
1 |
| Pending final decision on the review, the acts, orders, |
2 |
| sanctions, and
rulings
of the Department
OBRE
regarding any |
3 |
| license shall remain in full force and effect, unless modified |
4 |
| or
suspended by a court
order pending final judicial decision. |
5 |
| The Department
OBRE shall not be required to certify
any record |
6 |
| to the court,
file any answer in court, or otherwise appear in |
7 |
| any court in a judicial review
proceeding, unless
there is |
8 |
| filed in the court, with the complaint, a receipt from the |
9 |
| Department
OBRE
acknowledging payment of the
costs of |
10 |
| furnishing and certifying the record. Failure on the part of |
11 |
| the
plaintiff to file a receipt in
court shall be grounds for |
12 |
| dismissal of the action.
|
13 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
14 |
| (225 ILCS 407/20-80)
|
15 |
| (Section scheduled to be repealed on January 1, 2010)
|
16 |
| Sec. 20-80. Summary suspension. The Secretary
Commissioner
|
17 |
| may temporarily suspend
any
license pursuant to this Act, |
18 |
| without hearing, simultaneously with the
institution of |
19 |
| proceedings for
a hearing provided for in this Act, if the |
20 |
| Secretary
Commissioner finds that the evidence
indicates that |
21 |
| the
public interest, safety, or welfare requires emergency |
22 |
| action. In the event
that the Secretary
Commissioner
|
23 |
| temporarily suspends any license without a hearing, a hearing |
24 |
| shall be held
within 30 calendar days
after the suspension has |
25 |
| begun. The suspended licensee may seek a continuance
of the |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| hearing
during which the suspension shall remain in effect. The |
2 |
| proceeding shall be
concluded without
appreciable delay.
|
3 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
4 |
| (225 ILCS 407/20-90)
|
5 |
| (Section scheduled to be repealed on January 1, 2010)
|
6 |
| Sec. 20-90. Cease and desist orders. The Department
OBRE
|
7 |
| may issue cease and desist
orders to persons
who engage in |
8 |
| activities prohibited by this Act. Any person in violation of a
|
9 |
| cease and desist order
obtained by the Department
OBRE is |
10 |
| subject to all of the remedies provided by law.
|
11 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
12 |
| (225 ILCS 407/20-95)
|
13 |
| (Section scheduled to be repealed on January 1, 2010)
|
14 |
| Sec. 20-95. Returned checks; fine. A person who delivers a |
15 |
| check or
other
payment to the Department
OBRE that is returned |
16 |
| to the Department
OBRE unpaid by the financial institution upon |
17 |
| which it
is drawn shall pay
to the Department
OBRE , in addition |
18 |
| to the amount already owed to the Department
OBRE , a fee of |
19 |
| $50. The Department
OBRE shall
notify the person that his or |
20 |
| her check has been returned and that the person
shall pay to |
21 |
| the Department
OBRE by
certified check or money order the |
22 |
| amount of the returned check plus the $50
fee within 30 |
23 |
| calendar
days after the date of the notification. If, after the |
24 |
| expiration of 30
calendar days of the notification,
the person |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| has failed to submit the necessary remittance, the Department
|
2 |
| OBRE shall
automatically terminate the
license or deny the |
3 |
| application without a hearing. If, after termination or
denial, |
4 |
| the person seeks
a license, he or she shall petition the |
5 |
| Department
OBRE for restoration and he or she may be
subject to |
6 |
| additional
discipline or fines. The Secretary
Commissioner may |
7 |
| waive the fines due under this
Section in individual
cases |
8 |
| where the Secretary
Commissioner finds that the fines would be |
9 |
| unreasonable or
unnecessarily
burdensome.
|
10 |
| (Source: P.A. 91-603, eff. 1-1-00; 92-146, eff. 1-1-02.)
|
11 |
| (225 ILCS 407/20-100 new) |
12 |
| (Section scheduled to be repealed on January 1, 2010) |
13 |
| Sec. 20-100. Violations. A person who is found to have |
14 |
| violated any provision of this Act is guilty of a Class A |
15 |
| misdemeanor for the first offense and a Class 4 felony for the |
16 |
| second and any subsequent offense.
|
17 |
| (225 ILCS 407/30-5)
|
18 |
| (Section scheduled to be repealed on January 1, 2010)
|
19 |
| Sec. 30-5. The Department
OBRE ; powers and duties. The |
20 |
| Department
OBRE shall exercise the powers
and
duties
prescribed |
21 |
| by the Civil Administrative Code of Illinois for the |
22 |
| administration
of licensing acts and
shall exercise such other |
23 |
| powers and duties as prescribed by this Act. The
Department
|
24 |
| OBRE may contract with
third parties for services necessary for |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| the proper administration of this Act.
|
2 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
3 |
| (225 ILCS 407/30-10)
|
4 |
| (Section scheduled to be repealed on January 1, 2010)
|
5 |
| Sec. 30-10. Rules. The Department
OBRE , after notifying and |
6 |
| considering the
recommendations of the
Advisory Board, if any, |
7 |
| shall adopt any rules that may be necessary for the
|
8 |
| administration,
implementation and enforcement of this Act.
|
9 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
10 |
| (225 ILCS 407/30-15)
|
11 |
| (Section scheduled to be repealed on January 1, 2010)
|
12 |
| Sec. 30-15. Auction Regulation Administration Fund. A |
13 |
| special fund to be
known as the
Auction Regulation |
14 |
| Administration Fund is created in the State Treasury. All
fees |
15 |
| received by the Department
OBRE under this Act shall be |
16 |
| deposited into the Auction Regulation
Administration Fund. |
17 |
| Subject
to appropriation, the moneys deposited into the Auction |
18 |
| Regulation
Administration Fund shall be
used by the Department
|
19 |
| OBRE for the administration of this Act. Moneys in the Auction
|
20 |
| Regulation
Administration Fund may be invested and reinvested |
21 |
| in the same manner as
authorized for pension
funds in Article |
22 |
| 14 of the Illinois Pension Code. All earnings, interest, and
|
23 |
| dividends received from
investment of funds in the Auction |
24 |
| Regulation Administration Fund shall be
deposited into the
|
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| Auction Regulation Administration Fund and shall be used for |
2 |
| the same purposes
as other moneys
deposited in the Auction |
3 |
| Regulation Administration Fund.
|
4 |
| This fund shall be created on July 1, 1999. The State |
5 |
| Treasurer shall cause
a transfer of
$300,000 to the Auction |
6 |
| Regulation Administration Fund from the Real Estate
License
|
7 |
| Administration Fund on August 1, 1999. The State Treasurer |
8 |
| shall cause a
transfer of $200,000 on
August 1, 2000 and a |
9 |
| transfer of $100,000 on January 1, 2002 from the Auction
|
10 |
| Regulation
Administration Fund to the Real Estate License |
11 |
| Administration Fund, or if there
is a sufficient fund
balance |
12 |
| in the Auction Regulation Administration Fund to properly |
13 |
| administer
this Act, the Department
OBRE
may recommend to the |
14 |
| State Treasurer to cause a transfer from the Auction
Regulation
|
15 |
| Administration Fund to the Real Estate License Administration |
16 |
| Fund on a date
and in an amount
which is accelerated, but not |
17 |
| less than set forth in this Section. In
addition
to the license |
18 |
| fees
required under this Act, each initial applicant for |
19 |
| licensure under this Act
shall pay to the Department
OBRE an
|
20 |
| additional $100 for deposit into the Auction Regulation |
21 |
| Administration Fund for
a period of 2 years
or until such time |
22 |
| the original transfer amount to the Auction Regulation
|
23 |
| Administration Fund from
the Real Estate License |
24 |
| Administration Fund is repaid.
|
25 |
| Moneys in the Auction Regulation Administration Fund may be |
26 |
| transferred to the Professions Indirect Cost Fund, as |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| authorized under Section 2105-300 of the Department of |
2 |
| Professional Regulation Law of the Civil Administrative Code of |
3 |
| Illinois. |
4 |
| Upon completion of any audit of the Department
OBRE as |
5 |
| prescribed by the Illinois State
Auditing Act,
which includes |
6 |
| an audit of the Auction Regulation Administration Fund, the |
7 |
| Department
OBRE
shall make the
audit open to inspection by any |
8 |
| interested party.
|
9 |
| (Source: P.A. 94-91, eff. 7-1-05.)
|
10 |
| (225 ILCS 407/30-20)
|
11 |
| (Section scheduled to be repealed on January 1, 2010)
|
12 |
| Sec. 30-20. Auction Recovery Fund. A special fund to be |
13 |
| known as the
Auction
Recovery Fund is created in the State |
14 |
| Treasury. The moneys in the Auction
Recovery Fund shall
be used |
15 |
| by the Department
OBRE exclusively for carrying out the |
16 |
| purposes established
pursuant to the
provisions of Section |
17 |
| 30-35 of this Act.
|
18 |
| The sums received by the Department
OBRE pursuant to the |
19 |
| provisions of Sections 20-5
through
Sections 20-20 of this Act |
20 |
| shall be deposited into the State Treasury and held
in the |
21 |
| Auction
Recovery Fund. In addition to the license fees required |
22 |
| under this Act, each
initial and renewal
applicant shall pay to |
23 |
| the Department
OBRE an additional $25 for deposit into the |
24 |
| Auction
Recovery Fund for
a period of 2 years after the |
25 |
| effective date of this Act. After such time the
Auction |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| Regulation
Administration Fund has totally repaid the Real |
2 |
| Estate License Administration
Fund, the State
Treasurer shall |
3 |
| cause a transfer of $50,000 from the Auction Regulation
|
4 |
| Administration Fund to the
Auction Recovery Fund annually on |
5 |
| January 1 so as to sustain a minimum balance
of $400,000 in
the |
6 |
| Auction Recovery Fund. If the fund balance in the Auction |
7 |
| Recovery Fund on
January 1 of any
year after 2002 is less than |
8 |
| $100,000, in addition to the renewal license fee
required under |
9 |
| this Act,
each renewal applicant shall pay the Department
OBRE
|
10 |
| an additional $25 fee for deposit
into the Auction
Recovery |
11 |
| Fund.
|
12 |
| The funds held in the Auction Recovery Fund may be invested |
13 |
| and reinvested in
the same
manner as funds in the Auction |
14 |
| Regulation Administration Fund. All earnings
received from
|
15 |
| investment may be deposited into the Auction Recovery Fund and |
16 |
| may be used for
the same
purposes as other moneys deposited |
17 |
| into the Auction Recovery Fund or may be
deposited into the
|
18 |
| Auction Education Fund as provided in Section 30-25 of this Act |
19 |
| and as
established by rule.
|
20 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
21 |
| (225 ILCS 407/30-25)
|
22 |
| (Section scheduled to be repealed on January 1, 2010)
|
23 |
| Sec. 30-25. Auction Education Fund. A special fund to be |
24 |
| known as the
Auction
Education Fund is created in the State |
25 |
| Treasury. The Auction Education Fund
shall be administered
by |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| the Department
OBRE . Subject to appropriation, moneys |
2 |
| deposited into the Auction Education
Fund may be
used for the |
3 |
| advancement of education in the auction industry, as |
4 |
| established
by rule. The moneys
deposited in the Auction |
5 |
| Education Fund may be invested and reinvested in the
same |
6 |
| manner as
funds in the Auction Regulation Administration Fund. |
7 |
| All earnings received
from investment shall
be deposited into |
8 |
| the Auction Education Fund and may be used for the same
|
9 |
| purposes as other
moneys deposited into the Auction Education |
10 |
| Fund.
|
11 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
12 |
| (225 ILCS 407/30-30)
|
13 |
| (Section scheduled to be repealed on January 1, 2010)
|
14 |
| Sec. 30-30. Auction Advisory Board.
|
15 |
| (a) There is hereby created the Auction Advisory Board. The |
16 |
| Advisory Board
shall consist
of 7 members and shall be |
17 |
| appointed by the Secretary
Commissioner . In making the
|
18 |
| appointments, the Secretary
Commissioner shall give due |
19 |
| consideration to the recommendations by members and
|
20 |
| organizations
of the industry, including but not limited to the |
21 |
| Illinois State Auctioneers
Association. Five
Four
members of |
22 |
| the Advisory Board shall be licensed auctioneers, except that |
23 |
| for
the initial
appointments, these members may be persons |
24 |
| without a license, but who have been
auctioneers for
at least 5 |
25 |
| years preceding their appointment to the Advisory Board. One |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| member
shall be a public
member who represents the interests of |
2 |
| consumers and who is not licensed under
this Act or the
spouse |
3 |
| of a person licensed under this Act or who has any |
4 |
| responsibility for
management or
formation of policy of or any |
5 |
| financial interest in the auctioneering
profession or any other
|
6 |
| connection with the profession. One member shall be actively |
7 |
| engaged in the
real estate industry
and licensed as a broker or |
8 |
| salesperson. The Advisory Board shall annually elect one of its |
9 |
| members to serve as Chairperson
One member shall be the |
10 |
| Director of
Auction Regulation,
ex-officio, and shall serve as |
11 |
| the Chairperson of the Advisory Board .
|
12 |
| (b) Members shall be appointed for a term of 4 years, |
13 |
| except that of the
initial appointments,
3 members shall be |
14 |
| appointed to serve a term of 3 years and 4 members shall be
|
15 |
| appointed to serve
a term of 4 years , including the Director . |
16 |
| The Secretary
Commissioner shall fill a
vacancy for the |
17 |
| remainder
of any unexpired term. Each member shall serve on the |
18 |
| Advisory Board until his
or her successor
is appointed and |
19 |
| qualified. No person shall be appointed to serve more than
2 |
20 |
| terms, including
the unexpired portion of a term due to |
21 |
| vacancy. To the extent practicable, the Secretary
Commissioner
|
22 |
| shall
appoint members to insure that the various geographic |
23 |
| regions of the State are
properly represented
on the Advisory |
24 |
| Board.
|
25 |
| (c) A majority of the Advisory Board members currently |
26 |
| appointed shall
constitute a
quorum. A vacancy in the |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| membership of the Advisory Board shall not impair the
right of |
2 |
| a quorum
to exercise all of the rights and perform all the |
3 |
| duties of the Board.
|
4 |
| (d) Each member of the Advisory Board shall receive a per |
5 |
| diem stipend in an
amount to be
determined by the Secretary
|
6 |
| Commissioner . Each member shall be paid his or her necessary
|
7 |
| expenses while
engaged in the performance of his or her duties.
|
8 |
| (e) Members of the Advisory Board shall be immune from suit |
9 |
| in an action
based
upon any
disciplinary proceedings or other |
10 |
| acts performed in good faith as members of
the Advisory Board.
|
11 |
| (f) The Advisory Board shall meet monthly or as convened by |
12 |
| the Chairperson.
|
13 |
| (g) The Advisory Board shall advise the Department
OBRE on |
14 |
| matters of licensing and
education and
make recommendations to |
15 |
| the Department
OBRE on those matters and shall hear and make
|
16 |
| recommendations
to the Secretary
Commissioner on disciplinary |
17 |
| matters that require a formal evidentiary
hearing.
|
18 |
| (h) The Secretary
Commissioner shall give due |
19 |
| consideration to all recommendations of
the
Advisory
Board.
|
20 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
21 |
| (225 ILCS 407/30-40)
|
22 |
| (Section scheduled to be repealed on January 1, 2010)
|
23 |
| Sec. 30-40. Auction Recovery Fund; recovery; actions; |
24 |
| procedures. The Department
OBRE
shall
maintain an Auction |
25 |
| Recovery Fund from which any person aggrieved by an act,
|
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| representation,
transaction, or the conduct of a duly licensed |
2 |
| auctioneer, associate auctioneer
or auction firm that
|
3 |
| constitutes a violation of this Act or the regulations |
4 |
| promulgated pursuant
thereto or that constitutes
embezzlement |
5 |
| of money or property or results in money or property being
|
6 |
| unlawfully obtained from
any person by false pretenses, |
7 |
| artifice, trickery, or forgery or by reason of
any fraud,
|
8 |
| misrepresentation, discrimination or deceit by or on the part |
9 |
| of any licensee
or the unlicensed
employee of any auctioneer, |
10 |
| associate auctioneer, or auction firm and that
results in a |
11 |
| loss of actual
cash money as opposed to losses in market value, |
12 |
| may recover. The aggrieved
person may recover,
by order of the |
13 |
| circuit court of the county where the violation occurred, an
|
14 |
| amount of not more than
$10,000 from the fund for damages |
15 |
| sustained by the act, representation,
transaction, or conduct,
|
16 |
| together with the costs of suit and attorneys' fees incurred in |
17 |
| connection
therewith of not to exceed
15% of the amount of the |
18 |
| recovery ordered paid from the Fund. However, no
licensed |
19 |
| auctioneer,
associate auctioneer, or auction firm may recover |
20 |
| from the Fund, unless the
court finds that the
person suffered |
21 |
| a loss resulting from intentional misconduct. The court order
|
22 |
| shall not include
interest on the judgment.
|
23 |
| The maximum liability against the Fund arising out of any |
24 |
| one act by any
auctioneer,
associate auctioneer, or auction |
25 |
| firm shall be $50,000, and the judgment order
shall spread the |
26 |
| award
equitably among all aggrieved persons.
|
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| (Source: P.A. 91-603, eff. 8-16-99.)
|
2 |
| (225 ILCS 407/30-45)
|
3 |
| (Section scheduled to be repealed on January 1, 2010)
|
4 |
| Sec. 30-45. Auction Recovery Fund; collection.
|
5 |
| (a) No action for a judgment that subsequently results in |
6 |
| an order for
collection from the
Auction Recovery Fund shall be |
7 |
| started later than 2 years after the date on
which the |
8 |
| aggrieved
person knew or, through the use of reasonable |
9 |
| diligence, should have known of
the acts or omissions
giving |
10 |
| rise to a right of recovery from the Auction Recovery Fund.
|
11 |
| (b) When any aggrieved person commences action for a |
12 |
| judgment that may
result
in
collection from the Auction |
13 |
| Recovery Fund, the aggrieved person must name as
parties to |
14 |
| that action
any and all individual auctioneers, associate |
15 |
| auctioneers, auction firms, or
their employees or agents
who |
16 |
| allegedly committed or are responsible for acts or omissions |
17 |
| giving rise to
a right of recovery
from the Auction Recovery |
18 |
| Fund. Failure to name these individuals as parties
shall |
19 |
| preclude
recovery from the Auction Recovery Fund of any portion |
20 |
| of the judgment received
in the action.
|
21 |
| (c) When any aggrieved person commences action for a |
22 |
| judgment that may
result
in
collection from the Auction |
23 |
| Recovery Fund, the aggrieved person must notify the Department
|
24 |
| OBRE in writing to
this effect at the time of the commencement |
25 |
| of the action. Failure to so
notify the Department
OBRE shall |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| preclude
recovery from the Auction Recovery Fund of any portion |
2 |
| of the judgment received
in the action.
After receiving notice |
3 |
| of the commencement of such an action, the Department
OBRE , |
4 |
| upon
timely application,
shall be permitted to intervene as a |
5 |
| party to that action.
|
6 |
| (d) When an aggrieved party commences action for a judgment |
7 |
| that may result
in
collection
from the Auction Recovery Fund |
8 |
| and the court in which the action is commenced
enters judgment
|
9 |
| by default against the defendant and in favor of the aggrieved |
10 |
| party, the court
shall, upon motion of the Department
OBRE , set |
11 |
| aside that judgment by default. After a judgment by default has |
12 |
| been
set aside, the Department
OBRE
shall appear as a party to |
13 |
| that action and thereafter the court shall require
proof of the |
14 |
| allegations in
the pleading upon which relief is sought.
|
15 |
| (e) The aggrieved person shall give written notice to the |
16 |
| Department
OBRE within 30 days
after
the entry
of any judgment |
17 |
| that may result in collection from the Auction Recovery Fund.
|
18 |
| That aggrieved
person shall provide the Department
OBRE 20 days |
19 |
| written notice of all supplementary
proceeding so as to allow |
20 |
| the Department
OBRE to participate in all efforts to collect on |
21 |
| the judgment.
|
22 |
| (f) When any aggrieved person recovers a valid judgment in |
23 |
| any court of
competent
jurisdiction against any licensee or an |
24 |
| unlicensed employee or agent of any
licensee on the grounds
of |
25 |
| fraud, misrepresentation, discrimination, or deceit, the |
26 |
| aggrieved person
may, upon the
termination of all proceedings, |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| including review and appeals in connection with
the judgment, |
2 |
| file
a verified claim in the court in which the judgment was |
3 |
| entered and, upon 30
days written notice to the Department
OBRE
|
4 |
| and to the person against whom the judgment was obtained, may |
5 |
| apply to the
court for an
order directing payment out of the |
6 |
| Auction Recovery Fund of the amount unpaid
upon the judgment,
|
7 |
| not including interest on the judgment, and subject to the |
8 |
| limitation stated in
Section 30-40 of this
Act. The aggrieved |
9 |
| person must set out in that verified claim and at an
|
10 |
| evidentiary hearing to be
held by the court that the aggrieved |
11 |
| person:
|
12 |
| (1) is not the spouse of the debtor or the personal |
13 |
| representative of the
spouse;
|
14 |
| (2) has complied with all the requirements of this |
15 |
| Section;
|
16 |
| (3) has obtained a judgment stating the amount thereof |
17 |
| and the amount
owing
thereon, not including interest |
18 |
| thereon, at the date of the application;
|
19 |
| (4) has made all reasonable searches and inquiries to |
20 |
| ascertain whether
the
judgment
debtor possesses real or |
21 |
| personal property or other assets which may be sold or
|
22 |
| applied in
satisfaction of the judgment;
|
23 |
| (5) has discovered no personal or real property or |
24 |
| other assets liable to
be
sold or
applied, or has |
25 |
| discovered certain of them, describing them owned by the
|
26 |
| judgment debtor and liable
to be so applied, and has taken |
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| all necessary action and proceeding for the
realization |
2 |
| thereof, and
the amount thereby realized was insufficient |
3 |
| to satisfy the judgment, stating
the amount so realized
and |
4 |
| the balance remaining due on the judgment after application |
5 |
| of the amount
realized;
|
6 |
| (6) has diligently pursued all remedies against all the |
7 |
| judgment debtors
and
all other
persons liable to the |
8 |
| aggrieved person in the transaction for which recovery is
|
9 |
| sought from the
Auction Recovery Fund;
|
10 |
| (7) has filed an adversary action to have the debts |
11 |
| declared
non-dischargeable in any
bankruptcy petition |
12 |
| matter filed by any judgment debtor or person liable to the
|
13 |
| aggrieved person.
The aggrieved person shall also be |
14 |
| required to prove the amount of attorney's
fees sought to
|
15 |
| be recovered and the reasonableness of those fees up to the |
16 |
| maximum allowed
pursuant to Section
30-40 of this Act.
|
17 |
| (g) The court shall make an order directed to the |
18 |
| Department
OBRE requiring payment from
the
Auction
Recovery |
19 |
| Fund of whatever sum it finds to be payable upon the claim, |
20 |
| pursuant
to and in accordance
with the limitations contained in |
21 |
| Section 30-40 of this Act, if the court is
satisfied, upon the |
22 |
| hearing,
of the truth of all matters required to be shown by |
23 |
| the aggrieved person by
subsection (f) of this
Section and that |
24 |
| the aggrieved person has fully pursued and exhausted all
|
25 |
| remedies available for
recovering the amount awarded by the |
26 |
| judgment of the court.
|
|
|
|
09500HB1406sam001 |
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LRB095 04356 RAS 36457 a |
|
|
1 |
| (h) If the Department
OBRE pays from the Auction Recovery |
2 |
| Fund any amount in settlement
of
a claim
or toward satisfaction |
3 |
| of a judgment against any licensee, or employee or agent
of any |
4 |
| licensee, the
license of said licensee shall be automatically |
5 |
| terminated without hearing upon
the issuance of a
court order |
6 |
| authorizing payment from the Auction Recovery Fund. No petition
|
7 |
| for restoration of the
license shall be heard until repayment |
8 |
| of the amount paid from the Auction
Recovery Fund on their
|
9 |
| account has been made in full, plus interest at the rate |
10 |
| prescribed in Section
12-109 of the Code of Civil
Procedure. A |
11 |
| discharge in bankruptcy shall not
relieve a person from
the |
12 |
| penalties and disabilities provided in this subsection.
|
13 |
| (i) If, at any time, the money deposited in the Auction |
14 |
| Recovery Fund is
insufficient to
satisfy any duly authorized |
15 |
| claim or portion thereof, the Department
OBRE shall, when
|
16 |
| sufficient money has been
deposited in the Auction Recovery |
17 |
| Fund, satisfy such unpaid claims or portions
thereof, in the |
18 |
| order
that the claims or portions thereof were originally |
19 |
| filed, plus accumulated
interest at the rate
prescribed in |
20 |
| Section 12-109 of the Code of Civil Procedure.
|
21 |
| (Source: P.A. 91-603, eff. 1-1-00.)
|
22 |
| (225 ILCS 407/30-50)
|
23 |
| (Section scheduled to be repealed on January 1, 2010)
|
24 |
| Sec. 30-50. Contractual agreements. The Department
OBRE
|
25 |
| may enter into contractual
agreements
with third parties to |
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09500HB1406sam001 |
- 57 - |
LRB095 04356 RAS 36457 a |
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1 |
| carry out the provisions of this Act.
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2 |
| (Source: P.A. 91-603, eff. 1-1-00.)
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3 |
| (225 ILCS 407/30-55)
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4 |
| (Section scheduled to be repealed on January 1, 2010)
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5 |
| Sec. 30-55. Reciprocal agreements. The Department
OBRE
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6 |
| shall have the authority to
enter into
reciprocal licensing |
7 |
| agreements with the proper authority of a state,
territory, or |
8 |
| possession of the
United States or the District of Columbia |
9 |
| having licensing requirements equal
to or substantially
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10 |
| equivalent to the requirements of this State.
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| (Source: P.A. 91-603, eff. 1-1-00.)
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12 |
| (225 ILCS 407/10-25 rep.)
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13 |
| (225 ILCS 407/Art. 25 rep.)
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14 |
| (225 ILCS 407/30-5 rep.)
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| Section 10. The Auction License Act is amended by repealing |
16 |
| Sections 10-25 and 30-5 and Article 25.".
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