c/o
Secretary of State
State
House
CHAPTER Auc 100 DEFINITIONS, ORGANIZATION AND PUBLIC
INFORMATION
PART Auc 101
PURPOSE AND SCOPE
Auc
101.01 Purpose and Scope. The rules of this title implement the
statutory responsibilities of the new hampshire board of auctioneers created by
RSA 311-B:2.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New.
#5441, eff 7-27-92; ss by #6657, eff
1-1-98; ss by #12155, eff 4-5-17
PART Auc 102 DEFINITIONS
Auc
102.01 Terms Used. As used in these rules, the following terms
shall have the meanings indicated:
(a) "Absolute auction" means an auction
without reserve:
(1) In which the property
offered for sale is sold to the highest bidder;
(2) Where no minimum price will
limit the bid;
(3) Where the seller does not
withdraw the property from the auction after the first bid has been made by a
registered bidder and accepted by the auctioneer; and
(4) Where the seller does not
participate in the sale by bidding himself or through an agent, regardless of
sales price;
(b) "Apprentice auctioneer" means an
individual who serves under the direction of a supervising auctioneer as
described in Auc 302.01;
(c) "Auction" means the sale of real or
personal property, or both, in which the sale price of the property offered is
increased by competitive bids until the highest accepted bidder becomes the
purchaser;
(d) "Auctioneer'' means a person who engages
in, or who by advertising or otherwise holds himself or herself out as being
available to engage in, the solicitation or the acceptance of competitive bids
for the purchase of real or personal property, or both, at auction, or
otherwise engages in auctioneering;
(e) "Auctioneering'' means the business or
act of selling for another real, personal, or mixed property by auction for
compensation by fee, commission, or other exchange of value;
(f) "Authorized business organization''
means any entity organized for gain or profit and carrying on any business
activity within the state of New Hampshire which is:
(1) A corporation or business
association having at least one officer holding a valid license issued by the
board;
(2) A partnership in which at
least one partner holds a valid license issued by the board;
(3) A limited liability company
in which the managing member holds a valid license issued by the board;
(4) A sole proprietorship or
sole-shareholder corporation in which the sole proprietor or sole shareholder
holds a valid license issued by the board; or
(5) A trust in which at least
one trustee holds a valid license issued by the board;
(g) "Bid caller" means a licensed auctioneer
or apprentice who publicly solicits bids for the property by public outcry;
(h) "Board" means the New Hampshire
board of auctioneers established under RSA 311-B:2. The term includes "the
agency" unless another meaning is clearly indicated from context;
(i) "Resident" means any person who
resides in the state of New Hampshire upon filing an application;
(j) "Responsible auctioneer" means the
New Hampshire licensee whose name and license number appear in all advertising
and who is completely responsible for the conduct of the auction and for proper
accounting and payment to all consignors;
(k) "Supervising
auctioneer" means the responsible auctioneer who has taken the additional
responsibility of supervising an apprentice auctioneer;
(l) "Tentative decision" means a board
action which instructs the board's staff or a board committee to prepare a
draft document which satisfies generally stated policy objectives, subject to
subsequent review and approval by the board;
(m) “The falling of the hammer” means the time
between the acknowledgement of the last bid and the time the item is proclaimed
sold;
(n) "Unprofessional conduct" means any
action by a licensee, institution, or organization which is unlawful.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New. #5441, eff 7-27-92; ss by #6657, eff 1-1-98; ss by #12155, eff 4-5-17; ss by #12449, eff 1-10-18
PART Auc 103
AGENCY ORGANIZATION
Auc
103.01 Composition of the Board.
(a) The board consists of members who meet the
eligibility requirements of RSA 311-B:2.
(b) The board shall elect a chairman, vice-chairman and secretary at its regular March meeting.
Source. #6657,
eff 1-1-98; ss by #12155, eff 4-5-17
Auc
103.02 Staff. The board shall designate such staff members as
are necessary to perform the record-keeping and other statutory functions of
the board and to oversee the board's daily operations. Such staff members shall maintain all records
of the board's activities and shall receive correspondence, filings and other
communications and documents.
Source. #6657,
eff 1-1-98; ss by #12155, eff 4-5-17
Auc
103.03 Office Location, Mailing
Address and Telephone.
(a) The board's office is within the secretary of
state's office, at mailing address N.H. Board of Auctioneers, c/o Secretary of
State's Office, State House Room 204, Concord, N.H. 03301-4989.
(b) Correspondence, filings
and other communications intended for the board shall be addressed to the
board's designated staff member at the location stated in Auc
103.03 (a).
(c) The board's telephone number is
(603)271-3242.
Source. #6657,
eff 1-1-98; ss by #12155, eff 4-5-17
Auc
103.04 Functions of the Board.
(a) The board shall, with the approval of the
secretary of state, adopt rules for:
(1) Registrations;
(2) Renewals;
(3) Disciplinary action;
(4) the qualifications of applicants;
(5) the establishment of fees;
(6) Ethical and professional standards;
(7) Conduct of hearings;
(8) Content of license and renewal applications; and
(9) any other matters related to the proper administration of RSA 311‑B.
(b) In addition to rulemaking, the board's
functions include licensing qualified auctioneers and the investigation and
adjudication of complaints against licensees.
Source. #6657,
eff 1-1-98; ss by #12155, eff 4-5-17
PART Auc 104
PUBLIC INFORMATION
Auc
104.01 Record of Board Actions. Minutes shall be kept of board meetings and
of official actions taken by the board.
These minutes shall record the members who participate in each vote and
shall separately record the position of members who choose to dissent, abstain or concur.
Minutes of board actions which are not confidential under RSA 91-A:3, II
or RSA 91-A:5 shall be governmental records and shall be available for
inspection during the board's ordinary office hours within 144 hours from the
close of the meeting or vote in question unless the 72 hour
availability requirement of RSA 91-A:3, III is applicable.
Source. #6657,
eff 1-1-98; ss by #12155, eff 4-5-17
Auc
104.02 Custodian of Records. The designated staff members shall be the custodian
of the board's records and shall respond to requests to examine those records
which are subject to public inspection or are otherwise accessible by the
persons requesting access.
Source. #6657,
eff 1-1-98; ss by #12155, eff 4-5-17
Auc
104.03 Copies of Records. Persons desiring copies of board records
shall submit such request, during the normal hours of the board office,
identifying as particularly as possible the information being sought and
agreeing to pay a copying fee of $.50 per page.
If records are requested which contain both public and confidential
information, the board staff shall delete the confidential information and
provide the remaining information.
Source. #6657,
eff 1-1-98; ss by #12155, eff 4-5-17
Auc
104.04 Record Retention. The board shall keep its records on file for
at least 5 years. However, for decisions
of the board made under Auc 203.20, the retention
period shall be as specified in Auc 203.20(f).
Source. #12416,
eff 11-9-17
PART Auc 105
MEETINGS, DELIBERATIONS AND DECISIONS
Auc
105.01 Meetings. The board shall
meet monthly, except by a vote of the board.
The board shall meet also at the call of the chair.
Source. #6657,
eff 1-1-98; ss by #12155, eff 4-5-17
Auc
105.02 Tentative Decisions. Tentative decisions shall not be binding upon
the board. Changes in the form or the
substance of a tentative decision shall be made as often as necessary to
produce a final document which satisfactorily sets forth the
final result the board intends to reach.
The board's final decision shall be issued only when the necessary
majority has voted in favor of the final form of the proposed action, allowing
time for printing the document in question.
Source. #6657,
eff 1-1-98; ss by #12155, eff 4-5-17
PART
Auc 106
APPOINTMENT OF COMMITTEES
Auc
106.01 Committees.
(a) The board shall delegate investigatory and other
functions within its jurisdiction to committees consisting of one or more board
members when such delegations are necessary to achieve separation of functions,
objectives, or to perform the board's work more efficiently.
(b) Committees shall have authority to undertake
investigations and make recommendations to the board, but
shall not take final action on behalf of the board.
(c) Committees shall not have authority to retain
paid advisor or consultants or to use the voluntary services of nonboard members unless expressly authorized to do so by
the board.
Source. #6657,
eff 1-1-98; ss by #12155, eff 4-5-17
CHAPTER Auc 200 PRACTICE AND PROCEDURE
PART Auc 201
INITIATION OF PROCEEDINGS
Auc
201.01 Commencement of Proceedings. Disciplinary proceedings pursuant to RSA
311-B:11 shall be commenced upon the receipt of a complaint of any person as
provided in Auc 201.02, or upon the initiative of the
board as provided in Auc 201.03.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New. #5441, eff 7-27-92; ss by #6658, eff 1-1-98,
EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
201.02 Complaints.
(a) All complaints shall be in
writing and shall be filed in the board's office.
(b) The complaint shall
contain:
(1) The name and current
address of the complainant;
(2) The specific facts or
circumstances giving rise to the complaint; and
(3) The particular action or
conduct complained of.
(c) Documents that do not
conform to Auc 201.02(b) shall not be acted upon by
the board until the complainant provides all information specified in Auc 201.02(b).
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
201.03 Initiation of Disciplinary
Proceedings by the Board. Upon
receipt of a written complaint that any licensee has violated RSA 311‑B
or these rules, the board shall initiate disciplinary proceedings hereunder
pursuant to RSA 311‑B:11 and RSA 541-A.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
201.04 Investigation.
(a) Upon receipt of a
complaint, the board shall initiate disciplinary proceedings. If an investigation is authorized by the
board, the chairman shall appoint a member of the board, or some other person,
to act as an investigator and, if applicable, prosecutor in the particular case. The
chairman shall forthwith notify in writing both the respondent licensee and the
complainant of that appointment.
(b) Upon commencing an investigation,
the board shall serve a copy of the written complaint upon the respondent by
prepaid certified mail, return receipt requested.
(c) The investigator in an
investigation shall perform the following duties:
(1) Contact and question
individually the licensee against whom the complaint is registered and the
complainant individually about the complaint, and take such other actions as
the investigator deems appropriate to investigate the charges;
(2) Interview any other person,
as the investigator deems appropriate;
(3) Upon completing the
investigation, the investigator shall report to the board, in writing, a
summary of the evidence that, in the opinion of the investigator, could be
proved at a disciplinary hearing;
(4) Distribute copies of the
investigative report to each member of the board;
(5) Beyond the written report and communications concerning procedural
issues, the investigator shall have no ex parte communication with the board
concerning the subject complaint, and
(6) If the investigator is a
board member, the investigator shall not vote on any decision as to whether to
proceed with further disciplinary action on a complaint.
(d) Upon receipt of the written
report, the board shall determine whether to proceed with a disciplinary
hearing on the complaint.
(e) When a pre-hearing
conference and disciplinary hearing shall be conducted, the board shall provide
a copy of the investigative report to the complainant and the respondent to the
proceeding.
(f) In the event that the
complainant and the respondent agree to waive a pre‑hearing conference
and disciplinary hearing, the board shall notify the licensee and complainant
of the board's decision.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
201.05 Notice.
(a) Whenever a disciplinary
hearing shall be conducted, the hearing shall be scheduled and notice of the
hearing shall be given to the respondent licensee and the complainant(s) at
least 14 days prior to the scheduled hearing, by prepaid certified mail, return
receipt requested.
(b) Notices of hearing shall
include:
(1) A statement of the time, place and the nature of the hearing;
(2) A statement of legal
authority under which the hearing is to be held;
(3) A reference to the particular sections of the statutes and rules involved;
(4) A short and plain statement
of the issues involved;
(5) The fact that the complainant may intervene as a party in the
hearing pursuant to Auc 203.08;
6) The fact that the
complainant and the respondent may be represented by counsel at the hearing;
(7) The fact that the
complainant and the respondent may present the testimony of witnesses;
(8) A docket number assigned
by the board;
(9) The fact that any party may request a
pre-hearing conference pursuant to Auc 202.01;
(10) Identity of the prosecutor that has been
appointed by the chairman to present the complaint; and
(11) The specific provisions of
RSA 311‑B, the rule, or both which the licensee is alleged to have
violated.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
201.06 Role of Agency Staff in
Disciplinary Hearings. Unless called
as witnesses, agency staff shall have no role in any enforcement or
disciplinary hearing.
Source. #12201-A,
eff 6-7-17
PART Auc 202
PRE-HEARING PROCEDURES
Auc
202.01 Pre-hearing Conferences.
(a) Whenever a disciplinary hearing shall be conducted,
the complainant or the respondent may request a pre-hearing conference. Such conference shall also be scheduled in
cases where the board determines that such a conference will lead to a more
expeditious resolution of the dispute or of the issues before the board. A notice of the conference shall be given to
the respondent licensee and the complainant(s) at least 14 days prior to the
scheduled conference by prepaid certified mail, return receipt requested.
(b) The board shall designate a member of the
board or some other person to preside at the pre-hearing conference.
(c) When scheduled, the pre‑hearing
conference shall be concerned with the following matters:
(1) Any pending motions before
the board;
(2) Pre-hearing discovery;
(3) Stipulations, admissions and settlement possibilities;
(4) Identification, clarification and simplification of the issues before the
board;
(5) Identification or
limitations on the number of witnesses or exhibits which each party seeks to
introduce at the disciplinary hearing or both;
(6) Setting any additional
preliminary pre‑hearing conference dates that the parties may feel
necessary;
(7) Determination of a
realistic date of the exchange of names and addresses of expert witnesses, if
necessary; and
(8) Any other matter that the
board or counsel for the licensee or complainant feel will expedite pre-hearing
discovery and the disciplinary hearing.
(d) Following each pre-hearing
conference, the board shall issue a pre-hearing order, pursuant to RSA
541-A:31,V(d).
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc 202.02
Discovery.
(a) The complainant and the
respondent may request of each other materials and/or documents relative to the
subject matter involved.
(b) If either party fails or refuses
to provide the requested materials and/or documents, the party that has been
unable to acquire the materials, the documents, or both, may make a motion to
the board for discovery.
(c) Any party may make a motion requesting that
the board order the parties to comply with information requests. The motion shall be filed at least 30 days
before the date scheduled for the hearing, or within 10 days after receiving
the notice of hearing if such notice is issued less than 30 days in advance of
the hearing.
(d) The moving party’s motion shall:
(1) Set forth in detail those
factors which it believes justify its request for information; and
(2) List with specificity the
information it is seeking to discover.
(e) When a party has demonstrated that such
requests for information are necessary for a full and fair presentation of the
evidence at the hearing, the board shall grant the motion.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
PART Auc 203
HEARINGS - RECORD, PROOF, EVIDENCE AND DECISIONS
Auc
203.01 Date of Issuance or Filing. All written documents governed by these rules
shall be rebuttably presumed to have been issued on the date noted on the
document and to have been filed with the agency on the actual date of receipt
by the agency, as evidenced by a date stamp placed on the document by the
agency in the normal course of business.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
203.02 Format of Documents.
(a) All correspondence, pleadings, motions or other documents filed under these rules shall:
(1) Include the title and
docket number of the proceeding, if known;
(2) Be typewritten or clearly
printed on durable paper 8 1/2 by 11 inches in size;
(3) Be signed by the party or proponent of the document, or, if the
party appears by a representative, by the representative; and
(4) Include a statement
certifying that a copy of the document has been delivered to all parties to the
proceeding in compliance with Auc 203.03.
(b) A party or
representative's signature on a document filed with the agency shall constitute
certification that:
(1) The signer has read the
document;
(2) The signer is authorized to
file it;
(3) To the best of the signer’s
knowledge, information and belief there are good and
sufficient grounds to support it; and
(4) The document has not been
filed for purposes of delay.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
203.03 Delivery of Documents.
(a) Copies of all petitions, motions, exhibits, memoranda,
or other documents filed by any party to a proceeding governed by these rules
shall be delivered by that party to all other parties to the proceeding.
(b) All notices, orders, decisions
or other documents issued by the presiding officer or agency shall be delivered
to all parties to the proceeding.
(c) Delivery of all documents relating to a
proceeding shall be made by personal delivery or by depositing a copy of the
document, by first class mail, postage prepaid, in the United States mail,
addressed to the last address given to the agency by the party.
(d) When a party appears by a representative,
delivery of a document to the party's representative at the address stated on
the appearance filed by the representative shall constitute delivery to the
party.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
203.04 Computation of Time.
(a) Unless otherwise specified, all time periods
referenced in this chapter shall be calendar days.
(b) Computation of any period of time referred to
in these rules shall begin with the day after the action which sets the time
period in motion, and shall include the last day of
the period so computed.
(c) If the last day of the period so computed
falls on a Saturday, Sunday or legal holiday, then the
time period shall be extended to include the first business day following the
Saturday, Sunday or legal holiday.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
203.05 Motions; Objections.
(a) Motions shall be in written form and filed
with the board, unless made in response to a matter asserted for the first time
at a hearing or on the basis of information which was
not received in time to prepare a written motion.
(b) Oral motions and any oral objection to such
motions shall be recorded in full in the record of the hearing. If the board finds that the motion requires
additional information in order to be fully and fairly
considered, the board shall direct the moving party to submit the motion in
writing, with supporting information.
(c) Objections to written motions shall be filed
within 10 days of the date of the motion;
(d) Failure by an opposing party to object to a
motion shall not in and of itself constitute grounds for granting the motion.
(e) The board shall rule upon a motion after full
consideration of all objections and other factors relevant to the motion.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
203.06 Appearances and Representation.
(a) A party or the party’s
representative shall file an appearance that includes the following
information:
(1) A brief identification of
the matter;
(2) A statement as to whether or not the representative is an attorney and if so,
whether the attorney is licensed to practice in New Hampshire; and
(3) The party or
representative's daytime address and telephone number.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
203.07 Withdrawal of Board Member.
(a) Upon his or her own initiative or upon the
motion of any party, a board member shall, for good cause withdraw from any
hearing.
(b) Good cause shall exist if the board member:
(1) Has a direct interest in
the outcome of a proceeding, including, but not limited to, a financial or
family relationship, within the third degree of relationship, with any party;
(2) Has made statements or
engaged in behavior which objectively demonstrates that he or she has prejudged
the facts of a case; or
(3) Personally believes that he
or she cannot fairly judge the facts of a case.
(c) Mere knowledge of the issues, the parties or
any witness shall not constitute good cause for withdrawal.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
203.08 Intervention.
(a) A non-party, including, but
not limited to, the original complainant, may intervene in a matter pending
before the board, by filing a motion stating facts demonstrating that the
non-party's rights or other substantial interests might be affected by the proceeding
or that the non-party qualifies as an intervener under any provision of law.
(b) If the board determines that such
intervention would be in the interests of justice and would not impair the
orderly and prompt conduct of the hearing, the board shall grant the motion for
intervention.
(c) Except as limited by the board under RSA
541-A:32, III, an intervener shall be entitled to participate in a hearing as a
party.
Source. #12201-A,
eff 6-7-17
Auc
203.09 Postponements.
(a) Any party to a hearing may make an oral or
written motion that a hearing be postponed to a later date or time.
(b) If a postponement is requested by a party to
the hearing, it shall be granted if the board determines that good cause has
been demonstrated. Good cause shall
include the unavailability of parties, witnesses or
attorneys necessary to conduct the hearing, the likelihood that a hearing will
not be necessary because the parties have reached a settlement, or any other
circumstances that demonstrate that a postponement would assist in resolving
the case fairly.
(c) If the later date, time
and place are known at the time of the hearing that is being postponed, the
date, time and place shall be stated on the record. If the later date, time
and place are not known at the time of the hearing that is being postponed, the
board shall issue a written scheduling order stating the date, time and place
of the postponed hearing as soon as practicable.
Source. #12201-A,
eff 6-7-17
Auc
203.10 Failure to Attend Hearing. If any party, to whom notice has been given
in accordance with Auc 201.05, fails to attend a
hearing, the board shall declare that party to be in default and shall either:
(a) Dismiss the case, if the party with the
burden of proof fails to appear; or
(b) Hear the testimony and receive the evidence
offered by a party, if that party has the burden of
proof in the case.
Source. #12201-A,
eff 6-7-17
Auc
203.11 Record of the Hearing.
(a) The board shall record the hearing by
electronic recording or other method that will provide a verbatim record.
(b) If any person requests a transcript of the
taped record, the board shall cause a transcript to be prepared and, upon
receipt of payment for the cost of the transcription, shall provide copies of
the transcript to the requesting party.
(c) At the request of a party to any proceeding,
the record of the proceeding shall be made by a certified shorthand court
reporter provided by the board at the requesting party’s expense. A request for a certified shorthand court
reporter shall be filed at least 10 days prior to the hearing.
Source. #12201-A,
eff 6-7-17
Auc
203.12 Standard and Burden of Proof. The party asserting a proposition shall bear
the burden of proving the truth of the proposition by a preponderance of the
evidence.
Source. #12201-A,
eff 6-7-17
Auc
203.13 Testimony; Order of Proceeding.
(a) Any person offering testimony, evidence or
arguments shall state for the record his or her name, and role in the
proceeding. If the person is
representing another person, the person being represented shall also be identified.
(b) Testimony shall be offered in the following
order:
(1) The party or parties
bearing the burden of proof and such witnesses as the party may call; and
(2) The party or parties opposing
the party who bears the overall burden of proof and such witnesses as the party
may call.
Source. #12201-A,
eff 6-7-17
Auc
203.14 Evidence.
(a) Receipt of evidence shall be governed by the
provisions of RSA 541-A:33.
(b) All documents, materials and objects offered
as exhibits shall be admitted into evidence unless excluded by the board as
irrelevant, immaterial, unduly repetitious, or legally privileged.
(c) All objections to the admissibility of
evidence shall be stated as early as possible in the hearing, but not later
than the time when the evidence is offered.
(d) Transcripts of testimony and documents or
other materials, admitted into evidence shall be public records unless the
board determines that all or part of a transcript or document is exempt from
disclosure under RSA 91-A:5 or applicable case law.
Source. #12201-A,
eff 6-7-17
Auc
203.15 Witnesses. All witnesses
appearing before the board shall testify under oath or affirmation. Oaths or affirmations shall be administered
by the board.
Source. #12201-A,
eff 6-7-17
Auc
203.16 Proposed Findings of Fact and
Conclusions of Law.
(a) Any party may submit proposed findings of fact
and conclusions of law to the board prior to or at the hearing.
(b) Upon request of any party, or if the board
determines that proposed findings of fact and conclusions of law would serve to
clarify the issues presented at the hearing, the board shall specify a date
after the hearing for the submission of proposed findings of fact and
conclusions of law
(c) In any case where proposed findings of fact
and conclusions of law are submitted, the decision shall include rulings on the
proposals.
Source. #12201-A,
eff 6-7-17
Auc
203.17 Closing the Record.
(a) After the conclusion of the hearing, the
record shall be closed and no other evidence shall be received into the record,
except as allowed by paragraphs (b) of this section and Auc
203.18.
(b) Before the conclusion of the hearing, a party
may request that the record be left open to allow the filing of specified
evidence not available at the hearing.
If the other parties to the hearing have no objection or if the board
determines that such evidence is necessary to a full consideration of the
issues raised at the hearing, the board shall keep the record open for the period of time necessary for the party to file the evidence.
Source. #12201-A,
eff 6-7-17
Auc
203.18 Waiver or Suspension of Rules
by the Board. The board, upon its own
initiative or upon the motion of any party, shall suspend or waive any
requirement or limitation imposed by this chapter upon reasonable notice to
affected persons when the proposed waiver or suspension appears to be lawful,
and would be more likely to promote the fair, accurate and efficient resolution
of issues pending before the agency than would adherence to a particular rule
or procedure.
Source. #12201-A,
eff 6-7-17
Auc
203.19 Reopening the Record. At any time prior to the issuance of the
decision on the merits, the board, on the board’s own initiative or on the
motion of any party, shall reopen the record to receive relevant, material and non-duplicative testimony, evidence or
arguments not previously received, if the board determines that such testimony,
evidence or arguments are necessary to a full and fair consideration of the
issues to be decided.
Source. #12201-A,
eff 6-7-17
Auc
203.20 Decisions.
(a) A board member shall not participate in making a decision unless he or she personally heard the
testimony in the case, unless the matter’s disposition does not depend on the
credibility of any witness and the record provides a reasonable basis for
evaluating the testimony.
(b) Any
decision by the board on matters considered at a disciplinary hearing shall be
by majority vote. Upon issuance, the
chairman or secretary shall transmit the decision or order, in writing, to the
complainant and the respondent.
(c) In the event of suspension or revocation, a
copy of the board's order shall be sent to the National Auctioneer License Law
Officials Association (NALLOA).
(d) If the board's decision or order is to order
disciplinary action against a licensee, then:
(1) The board shall promptly
prepare a notice setting forth the full name of the licensee, his or her
professional address as it appears in the records of the board, and the fact
that discipline has been imposed;
(2) The notice prepared pursuant
to (1) above shall state the specific disciplinary sanction(s) from RSA
311-B:11, III determined by the board as being most likely to:
a. Prevent future misconduct by
the licensee;
b.
Take into account any acknowledgement of
fault by the licensee and any cooperation by the licensee with the board’s
investigation of misconduct;
c. Correct any attitudinal, educational or
other deficiencies which led to the licensee’s misconduct;
d. Encourage the responsible
practice of auctioneering;
e. Demonstrate to the licensee and the public the board’s intention to
insure that its licensees practice in accordance with
applicable law and the public welfare; and
(3) If the
board’s disciplinary sanction(s) include a continuing education requirement as
set forth in RSA 311-B:11(III)(g), the board shall specify the number of hours
of continuing education required and the subject matter of the continuing
education. The licensee may fulfill the
continuing education requirement by taking a class in the required subject
matter for the required number of hours offered by the National Auctioneers
Association or by any auctioneering school approved under Auc
302.03.
(e) Paragraph (d) shall apply
to disciplinary actions taken both with and without the agreement of the
licensee.
(f) The board shall keep a decision on file in
its records for at least 5 years following the date of the final decision or
the date of the decision on any appeal, unless the director of the division of
records management and archives of the department of state sets a different
retention period pursuant to rules adopted under RSA 5:40.
Source. #12201-A,
eff 6-7-17; amd by #12430, eff 12-6-17
Auc
203.21 Motion for Rehearing.
(a) The rules in this section are intended to
supplement any statutory provisions, including RSA 541, that require or allow a
person to request a rehearing of a decision of an agency prior to appealing the
decision.
(b) The rules in this section shall apply
whenever any person has a right under applicable law to request a rehearing of
a decision prior to filing an appeal of the decision with the court having
appellate jurisdiction.
(c) A motion for rehearing shall be filed within
30 days of the date of an agency decision or order.
(d) A motion for rehearing shall:
(1) Identify each error of
fact, error of reasoning, or error of law which the moving party wishes to have
reconsidered;
(2) Describe how each error
causes the board's decision to be unlawful, unjust, or unreasonable, or illegal
in respect to jurisdiction, authority, or observance of the law, an abuse of
discretion or arbitrary, unreasonable, or capricious;
(3) State concisely the factual
findings, reasoning, or legal conclusion proposed by the moving party; and
(4) Include any argument or
memorandum of law the moving party wishes to file.
(e) A motion for rehearing shall be granted if it
demonstrates that the board's decision is unlawful, unjust
or unreasonable.
(f) The board shall
grant or deny a motion for rehearing, or suspend the
order or decision pending further consideration within 30 days of the filing of
the motion for rehearing.
Source. #12201-A,
eff 6-7-17
PART Auc 204
PETITIONS FOR RULEMAKING & DECLARATORY RULINGS
Auc
204.01 Petition for Rulemaking.
(a) Any person may request the board to commence
a proceeding for the purpose of adopting, amending, or repealing a rule by
filing a written petition that contains:
(1) A statement of the
petitioner’s request for the proposed rule;
(2) The text of the proposed rule or a statement of the particular results intended by the petitioner’s interest in
the subject matter of the proposed rule;
(3) An identification of the particular rule sought to be amended or repealed;
(4) Any data or argument the petitioner believes would be useful to
the board in deciding whether to commence a rulemaking proceeding; and
(5) Name, address, signature of
petitioner and date.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New. #5441, eff 7-27-92; ss by #6658, eff 1-1-98,
EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
204.02 Disposition of Petitions for
Rulemaking.
(a) The board shall request additional
information or argument from the petitioner for rulemaking or from others if
such additional information or argument is required to reach a reasoned
decision.
(b) The board shall grant the
petition for rulemaking unless the adoption, amendment or repeal sought would
result in:
(1) A rule that is not within
the rulemaking authority of the board;
(2) Duplication of a rule or of
a statutory provision;
(3) Inconsistency between the
existing rules and the statutory mandate of the board; or
(4) Inconsistency of
administrative rules one with another.
(c) Within 30 days following
the next scheduled board meeting, of receipt of a sufficient petition the board
shall dispose of it in the following manner:
(1) By notifying the petitioner
that the petition is granted and beginning rulemaking proceedings as required
by RSA 541-A:4; or
(2) By notifying the petitioner
in writing that the petition is denied and the reasons for its denial.
(d) The denial of a petition
for rulemaking shall not entitle the petitioner to a hearing.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-A,
eff 6-7-17
Auc
204.03 Petition for Declaratory
Ruling.
(a) Any person may request a declaratory ruling
from the board on matters within its jurisdiction by filing an original and 5
copies of a petition consistent with this section.
(b) Such a petition shall also set forth the
following information:
(1) The exact ruling being
requested;
(2) The statutory and factual
basis for ruling, including any supporting affidavits or memoranda of a law;
and
(3) A statement as to how and
why the issuance of a ruling on this subject would benefit the petitioner.
Source. #12201-A,
eff 6-7-17
Auc
204.04 Action on Petitions.
(a) The petitioner shall provide such further information
or participate in such evidentiary or other proceedings as the board shall
direct after reviewing the petition and any replies received.
(b) Upon review and consideration, the board
shall within 90 days respond to the petition giving its decision in writing.
Source. #12201-A,
eff 6-7-17
PART Auc 205
PUBLIC COMMENT HEARINGS FOR RULEMAKING
Auc
205.01 Purpose. The purpose of this part is to provide a
uniform procedure for the conduct of public hearings at which comment from the general public will be solicited for evaluation and
consideration by a quorum of the board relative to the adoption, amendment or
repeal of a board rule under RSA 541-A.
Source. #12201-A,
eff 6-7-17
Auc
205.02 Scope. These rules shall apply to all hearings required
by state law to be conducted by the board at which public comment shall be
solicited under RSA 541-A:11. They shall
not apply to contested cases as defined by RSA 541-A:1, IV.
Source. #12201-A,
eff 6-7-17
Auc
205.03 Notice. In accordance with RSA 541-A:6, the board
shall give at least 20 days prior notice in the N. H. Rulemaking Register of
its intent to hold a public hearing and the cut-off date for the submission of
written testimony pursuant to RSA 541-A:11, I, on any proposed adoption,
amendment, readoption, readoption with amendment, or repeal of a rule. Pursuant
to RSA 541-A:6, I, the notice period shall begin on the day after the date of
publication of the notice in the Rulemaking Register.
Source. #12201-A,
eff 6-7-17
Auc
205.04 Postponements; Relocation.
(a) In accordance with RSA 541-A:11, IV, a public
hearing shall be postponed when:
(1) The weather is so inclement
that it is reasonable to conclude that people wishing to attend the hearing
will be unable to do so; or
(2) Postponement will
facilitate greater participation by the public.
(b) In accordance with RSA 541-A:11, V, a hearing
shall be moved to another location when the original location is not able to
accommodate the number of people who wish to attend.
(c) In accordance with RSA 541-A:11, III, a
hearing shall be continued past the scheduled time or to another date when:
(1) The time available is
insufficient to give each person who wishes to speak a reasonable opportunity
to do so; or
(2) The capacity of the room in
which the hearing is to be held does not accommodate the number of people who
wish to attend, and it is not possible to move the hearing to another location.
Source. #12201-A,
eff 6-7-17
Auc
205.05 Media Access.
(a) Public comment hearings shall be open to the
print and electronic media.
(b) The presiding officer shall place limits on
the activities of the media to avoid disruption in the following ways:
(1) Limit the placement of
television cameras to certain locations in the hearing room; and
(2) Prohibit interviews from
being conducted within the hearing room during the hearing.
Source. #12201-A,
eff 6-7-17
Auc
205.06 Presiding officer.
(a) The hearing shall be presided over by the
presiding officer who shall be the board chair or designee.
(b) The presiding officer shall:
(1) Call the hearing to order;
(2) Cause a recording of the
hearing to be made;
(3) Place a limit on the media
to avoid disruption as set out in Auc 205.05(b);
(4) Recognize those who wish to
be heard and establish the order thereof;
(5) Limit the time for each
speaker;
(6) Recognize or revoke
recognition of a speaker for cause as set out in Auc
205.07(b)(3);
(7) Remove or have removed any
person who disrupts the hearing;
(8) Adjourn the hearing; and
(9) Provide opportunity for the submission of written comments
consistent with the notice published in the rulemaking register.
Source. #12201-A,
eff 6-7-17
Auc
205.07 Public Participation.
(a) Any person who wishes to provide verbal
testimony on the issue or issues which are the subject of the hearing shall
provide their name, contact information and whom they represent in writing to
the presiding officer.
(b) The board, through the presiding officer,
shall:
(1) Refuse to recognize a
person who refuses to give his or her full name and address;
(2) When a group or
organization wishes to comment, limit the group to no more than 3 persons,
provided that the members who are present may enter their names and addresses
into the record as supporting the position by the group or organization; and
(3) Revoke recognition of a
speaker who:
a. Speaks or acts in an abusive
or disruptive manner; or
b. Refuses to keep comments
relevant to the issues which are the subject of the hearing.
(c) The presiding
officer shall rule any comments, questions, or discussions that the presiding
officer determines not to be relevant to the subject of the non-adjudicatory
public hearing out of order, and proceed to the next
speaker.
(d) Anyone wishing to submit written testimony or
exhibits shall sign, and date the items before submitting them to the presiding
officer.
(e) Written comments may be submitted any time
from the time the notice has been published until the record has been closed by
the presiding officer, which shall be consistent with the notice published in
the rulemaking register.
(f) When the presiding officer determines that no
person has further questions or comments that are relevant to the subject of
the hearing, the presiding officer shall close the hearing.
Source. #12201-A,
eff 6-7-17
PART Auc 206
EXPLANATION OF ADOPTED RULES
Auc
206.01 Petition for Explanation of
Adopted Rules.
(a) Any interested
person may, within 30 days of the final adoption of a rule, request a written
explanation of that rule.
(b) Each petition shall be in legible written
form and addressed to the board as follows:
Board of Auctioneers
State House Room 204
107 North Main Street
Concord, NH 03301
(c) Petitions for explanations of adopted rules
shall contain the name and address of the individual making the request or, if
the request is that of an organization, the name and address of such
organization and the name and address of the representative authorized by the
organization to make the request.
(d) The board shall, within 90 days of receiving
a request, provide a written response which:
(1) Concisely states the
meaning of the rule adopted;
(2) Concisely states the
principal reasons for and against the adoption of the rule in its final form;
and
(3) State, if the commission did so, why the commission overruled any
arguments and considerations presented against the rule.
Source. #12201-A,
eff 6-7-17
CHAPTER
Auc 300
LICENSING REQUIREMENTS
PART
Auc 301
APPLICATION
Auc
301.01 Required Information.
(a) Each applicant for a New Hampshire
auctioneer's license under RSA 311-B shall complete and submit
an application for a license as an auctioneer containing the following
information about the applicant:
(1) Name and date of birth;
(2) Residence and business
address, telephone numbers, email and website
addresses;
(3) Places of employment and occupations
for the last 5 years, including employer(s) name, address, telephone number,
dates of employment, job title(s), and job duties;
(4) Whether licensed as an
auctioneer in other states, and if so, copies of those current licenses;
(5) Whether ever refused or
denied an auctioneer's license in any state, and if so, the details of the
refusal or denial including:
The reason(s) for the refusal or denial;
a. The name of each state
licensing authority that refused or denied issuing the applicant a license; and
b. The date(s) of refusal or
denial;
(6) Whether there has been any
disciplinary action taken against the auctioneer in any state, and if so,
provide a copy of the order and details of the disciplinary action including:
a. The reason(s) for the
disciplinary action(s);
b. The name of each state
licensing authority that has issued the disciplinary action;
c. The docket number of the
order;
d. The date(s) of disciplinary
proceedings; and
e. The penalties imposed,
including, but not limited to, fines, and dates of sanctions;
(7) Whether ever convicted of
any felony or misdemeanor involving theft, fraud, deceit, misrepresentation, or
other breaches of fiduciary duties, and, if so, the details including:
a. The type of offense;
b. The date of conviction;
c. The docket or case number
for each conviction or plea of guilty;
d. The name and address of the
court(s) issuing the decision(s);
e. Each resulting sentence,
penalty, fine or combination imposed;
f. A description of each
offense and the disposition of each such case; and
g. Whether all terms of the
sentence, penalty or fine have been fulfilled, and if not, an explanation of
why the terms have not been fulfilled;
(8) Whether there are, or have
been, any suits in any court involving theft, fraud, deceit, misrepresentation,
or other breaches of fiduciary duties, to which the applicant is a party, and
if so, the details including:
a. The date of the suit/proceeding(s);
b. The type of action(s);
c. The docket or case
number(s);
d. The name and address of the
court(s) for the proceeding(s);
(9) Shall have reached the age of
18 years of age by the date the board receives the application;
(10) Copy of a current
government issued photo ID; and
(11) A certified copy of the
applicants criminal history record issued within the 90 days prior to the date
of the application.
(b) The bond, extending at least for the term of
the license, required by RSA 311‑B:8 shall be attached to the license
application form.
(c) Each applicant shall submit recommendations
from 2 business references, such as but not limited to banker, accountant,
attorney, certifying the applicant is trustworthy and competent to auction
real, personal and mixed property in such a manner as
to safeguard the interests of the public.
For any applicant relying on reciprocity under RSA 311-B:6, the
recommendations shall come from 2 other licensed auctioneers in the state(s)
where the applicant is currently licensed, or New Hampshire.
(d) The reference shall have an acquaintance of
at least 3 months duration with the applicant, be familiar with past business
experience dealings of the applicant, and shall not be
related to the applicant.
(e) The recommendations shall include the length of
time the individual has known the applicant, a description of past business
dealings and experiences with the applicant, and any other background
information about the applicant known to the individual who is making the
recommendation.
(f) Each recommendation shall contain the
following:
(1) Name, address, and
telephone number of the reference;
(2) Extent of the sponsor's
acquaintanceship with the applicant;
(3) Familiarity with the past
business experience and dealings of the applicant;
(4) Such other knowledge of the
applicant and the applicant's background upon which the recommendation is
founded; and
(5) Date and signature of the
individual recommending the applicant.
(g) The applicant shall submit proof of
competence in one of the following 3 forms:
(1) An affidavit from the
supervising auctioneer or auctioneers certifying that the applicant has served
as an apprentice auctioneer for said auctioneer or auctioneers for a total
period of not less than 6 months and had participated in all phases of
auctioneering over the course of not less than a total of 10 auctions under
said auctioneer or auctioneer;
(2) A certificate of graduation
from an approved auctioneering school; or
(3) For non-resident applicants
only:
a. A certified copy of a valid
current auctioneer's license, held by the applicant from any other state whose
laws are sufficient for reciprocity under RSA 311-B:6, issued by the
appropriate state agency;
b. A letter of good standing
from said agency;
c. An affidavit proving
licensure for at least 6 months; and
d. Conduct of at least 10
auctions within the 5 year period of time immediately
prior to the application.
(h) The apprenticeship affidavit shall contain
the following information:
(1) Name and address of both
the applicant and the supervising auctioneer;
(2) The auction name and type
of auction;
(3) The specific dates of
auctions worked;
(4) A description of the
responsibilities of the apprentice during the apprenticeship;
(5) A description of the
responsibilities of the apprentice at the specific auctions worked; and
(6) A statement of competency
established through the apprenticeship.
(i) The phases of auctioneering in which an
auctioneer on apprenticeship shall participate shall include the following
categories:
(1) Bid caller;
(2) Cashier;
(3) Scribe;
(4) Runner;
(5) Dealing with consignors;
(6) Preparation of flyers and
advertising;
(7) Auction set up;
(8) Tagging; and
(9) Lotting.
(j) For purposes of determining reciprocity the
board shall maintain a reciprocity list of states which the board has
determined have licensing requirements consistent with RSA 311-B:6 and these
rules. At the request of any applicant
for a license, the board shall review the requirements of any specific state(s)
not on the reciprocity list to determine whether said state(s) should be added
to this list. If the board determines
that any state’s licensing requirements no longer meet the requirements of RSA
311-B:6, the board may remove said state from the Reciprocity List.
(k) If required by Auc
303.01, the applicant shall submit a copy of the examination results from the
board of auctioneer’s examination taken within 6 months of the application
date.
(l) All forms shall be complete and shall be
signed and dated by the applicant in ink and notarized. All affidavits shall also be signed and dated
by the writer and notarized. Incomplete or non-notarized forms or applications
submitted without the recommendations, bonds, fees, or other necessary
attachments shall be returned to the applicant. All applications and
information therein shall be current.
(m) The applicant shall certify that:
(1) The applicant agrees to
comply with the requirements set forth in RSA 311-B, Auc
100-500, and other auction related laws or rules, and that the applicant
understands that violations of these laws and rules shall be grounds for
disciplinary proceedings against them;
(2) The application and the
information contained therein is true, accurate, and complete;
(3) That the application and
the information contained therein is public information under RSA 91-A unless
exempted by statute or court order;
(4) That the application and
information contained therein may be divulged by the board pursuant to RSA
311-B, and
(5) Shall acknowledge that any
false statement on the application form, or in the information contained
therein, is punishable as a misdemeanor pursuant to RSA 641:3.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New. #5441, eff 7-27-92; ss by #6658, eff 1-1-98,
EXPIRED: 1-1-06
New. #12201-B, eff 6-7-17
Auc
301.02 Non-Resident Information. The non‑resident application shall have
the same information as the resident application with the addition of a
power-of-attorney appointing the New Hampshire Secretary of State’s office as
said out of state auctioneer’s attorney for purposes of service of process in
New Hampshire.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New. #5441, eff 7-27-92; ss by #6658, eff 1-1-98,
EXPIRED: 1-1-06
New. #12201-B, eff 6-7-17
Auc
301.03 Licensing for Active Duty Military Spouses.
(a)
Each applicant for licensure who is a military spouse pursuant to RSA
332-G:7, III shall apply to the board for licensure on
an application for licensure form as specified in Auc
301.01 and pay the fee set forth in Auc 304.01.
(b)
Each applicant for facilitated licensing as a military spouse shall
provide a copy of the military member’s orders showing proof of active duty status.
(c)
Each applicant who applies for facilitated licensing as a military
spouse shall be eligible to obtain a facilitated license if the military spouse
is licensed or registered in another state or jurisdiction, provided that the
other state’s or jurisdiction’s licensure or registration requirements are
consistent with Auc 301.01.
(d)
Verification of licensure and examination shall be obtained by the candidate
for licensure and submitted to the board directly from the verifying state or
jurisdiction for approval.
(e) A military spouse who obtains a
facilitated license shall comply with all license renewal requirements pursuant
to Auc 401.01.
Source. #12201-B, eff 6-7-17
PART Auc 302
QUALIFICATION
Auc
302.01 Apprenticeships. For an affidavit of apprenticeship to be accepted
by the board under Auc 301.01(h)(1), an
apprenticeship shall be served under one or more auctioneers for a period of
not less than 6 months, with participation in all phases of auctioneering, as
described in Auc 301.01(j) over the course of not
less than 10 auctions under said auctioneers.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New. #5441, eff 7-27-92; ss by #6658, eff 1-1-98,
EXPIRED: 1-1-06
New. #12201-B, eff 6-7-17
Auc
302.02 Auctioneering Schools.
(a) For the purposes of this section, an
"instructional hour" means at least 50 minutes of classroom
instruction.
(b) For a certificate of graduation from an
auction school to be accepted by the board under Auc
301.01(h)(2), the applicant shall have successfully completed the program of an
auction school with:
(1) A minimum of 80 hours of
required classroom instruction including a minimum of 50 hours devoted to core
curriculum subject matter. The remaining
hours may be devoted to optional subject matter;
(2) Core curriculum subject
matter including bid calling, ethics, advertising, accounting procedures,
auction law, uniform commercial code, contracts and
legal matters, closing statements, and settlements. All
of these subjects shall be included and covered in the core curriculum;
and
(3) Optional subject matter,
related to auctioneering, including, but not limited to, subjects such as,
antiques and furniture, real estate, environmental issues, computers, firearms,
bankruptcy sales, art, rugs and jewelry, body language, sale preparation, heavy
equipment and farm machinery, automobiles, livestock, public speaking, estate
auctions, personal appearance, auction bid assisting, and appraising.
(c) The applicant shall pass a written
examination, given by the school, with a minimum passing score of 75% to
receive a certificate of graduation.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-B, eff 6-7-17
Auc
302.03 Standards for Approval of
Auctioneering Schools. In order to
qualify as a board certified auctioneering school, the
auctioneering school shall provide a history of the school and its
qualifications as well as a list of intended instructors and their
qualifications, and a course curriculum and schedule to demonstrate that:
(a) The school requires a minimum number of hours
of course work in each of the following core curriculum subject areas as
indicated:
(1) Auctioneer ethics, 10
hours;
(2) Auction-related principles
of contract law, 4 hours;
(3) Auction-related provisions
of the Uniform Commercial Code, 2 hours;
(4) Auction closing statements
and accounting practices, 6 hours;
(5) Auctioneer presentation and
bid calling skills, 10 hours;
(6) Auction advertising
strategies, 6 hours;
(7) Auction logistics, 6 hours;
and
(8) Starting and operating an
auction business; 6 hours;
(b) The school offers the following course work
on an elective basis:
(1) Sales of antiques and
furniture, firearms, art, rugs, jewelry, automobiles, heavy equipment, farm
machinery, estates, and computers;
(2) Business liquidations,
including real estate and foreclosures, industrial and small business
liquidations, and farm and livestock liquidations;
(3) Auction related
environmental issues;
(4) Bankruptcy sales;
(5) Auction business practices
including sale preparation, and appraising;
(6) Personal attributes of
auctioneers such as body language, public speaking, and personal appearance;
and
(7) Auction bid assistance; and
(c) The board shall approve the school if it
determines that:
(1) The school demonstrates
compliance with (a)-(b) above; and
(2) The courses are led by
instructors with sufficient experience in and mastery of the subject matter of
the course.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-B, eff 6-7-17
PART Auc 303
EXAMINATION
Auc
303.01 Written Examination.
(a) In addition to the requirements of RSA
311-B:5, each applicant, excluding applicants granted reciprocity under RSA
311-B:6 and Auc 301.01(h)(3), shall pass a written
examination in the following subject areas:
(1) State and federal statutes
and administrative rules relative to auctioneering, including but not limited
to the following:
a. RSA 311-B;
b. RSA 358-A:2, relative to
deceptive acts and practices;
c. RSA 358-G, relative to
regulation of auctions;
d. RSA 444:1, relative to liens
on personal property;
e. RSA 382-A:2-328, Uniform
Commercial Code Sale by Auction; and
f. NH Code of Administrative
Rules Auc 100 through 500;
(2) Generally accepted
accounting practices for buyer and seller, including, but not limited to, an
explanation of methods of recording sales, making lists of items sold,
consignor boards, costs, and net sales; and
(3) Auctioneering mathematics including calculating commissions,
premiums, consignor settlements, and costs of sales.
(b) The board shall administer the written
examination at least 4 times each year, with the dates to be established at the
November meeting.
(c) The board shall publish printed material including
but not limited to the examination dates for the current calendar year, the
examination registration form, tips for preparing for the license examination,
study materials and sample questions.
(d) The passing grade on the written examination
shall be at least 75% correct.
(e) The examination shall be taken only after the
completion of one of the following requirements:
(1) An apprenticeship of at least
6 months with a minimum of 10 auctions, as described in Auc
302.01; or
(2) Successful completion of an
auctioneering school as described in Auc 302.02.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New. #5441, eff 7-27-92; ss by #6658, eff 1-1-98,
EXPIRED: 1-1-06
New. #12201-B, eff 6-7-17; amd
by #12450, eff 1-10-18
Auc
303.02 Written Examination
Registration.
(a) Applicants shall submit a completed
auctioneer licensing examination registration form to take the written
examination. The registrations for the examination,
including the $75 examination fee, shall be submitted to the board at least 2
weeks prior to the examination date.
Qualifying applicants shall be mailed an admission ticket at least one
week prior to the examination date.
There will be no entry to the examination without this admission ticket
and photo identification.
(b) The registration form for admission to the
examination shall contain the following:
(1) Name, address, telephone
number email address of the applicant;
(2) Auctioneering school
attended, address and telephone number, if applicable, and date of
graduation;
(3) Name, address and telephone number of
supervising auctioneers for applicant's apprenticeship, if applicable, and date
of completion of apprenticeship;
(4) Requested examination date;
and
(5) Applicant’s signature and
date.
(c) Applicants who fail to attend an examination
for which they are scheduled shall be required to submit a new examination
registration form and fee if they desire to be rescheduled unless the applicant
furnishes written proof of inability to attend.
(d) Applicants who do not receive a passing grade
for the examination shall submit a new examination registration form and fee if
they desire to be rescheduled.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-B, eff 6-7-17
Auc
303.03 Notice of Results. The board shall notify each applicant, in
writing only, of the results of said examination by section within 14 days of
the examination. Results shall not be
released by telephone. License application shall be within 6 months of passing
of the examination, otherwise the examination shall be retaken.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-B, eff 6-7-17
PART Auc 304
FEES
Auc
304.01 License Fees.
(a) The fee for a New Hampshire auctioneer's
license shall be $200.00 per 2 year term.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-B, eff6-7-17 (from Auc
305.01)
Auc
304.02 Renewal Fees.
(a) The fee for renewal of a
New Hampshire auctioneer's license shall be $200.00 per 2
year term.
(b) For any renewal submitted after the
expiration date as allowed by Auc 401.03, there shall
be an additional late fee of $100.00.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-B, eff6-7-17 (from Auc
305.02)
Auc
304.03 Examination Fee. The fee for registration for the New
Hampshire auctioneer's licensing examination shall be $75.00. This fee includes the provision of a copy of
the auctioneer licensing bulletin.
Copies of pages of this document may also be obtained separately by
paying the per page copying fee specified in Auc
104.03.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-B, eff6-7-17 (from Auc
305.03)
PART Auc 305
ISSUING OF LICENSE
Auc
305.01 License Number.
(a) On issuance of a New Hampshire auctioneer's
license, each licensee shall receive a license number which the licensee shall
retain as long as licensed and said license is renewed
pursuant to Auc 401.
(b) A license number
shall not be assigned to anyone other than to the person to whom it was
originally issued.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New. #5441, eff 7-27-92; ss by #6658, eff 1-1-98,
EXPIRED: 1-1-06
New. #12201-B, eff6-7-17 (from Auc
306.01)
CHAPTER Auc 400 CONTINUED STATUS
PART Auc 400
RENEWAL
Auc
401.01 Renewal Form.
(a) Each licensee seeking renewal shall submit a
renewal form containing the following information about the licensee, prior to
the license expiration date:
(1) License number;
(2) Name and date of birth;
(3) Residence and business
address and telephone numbers, and, if existing, email and website addresses;
(4) Whether licensed as an
auctioneer in other states, and if so, copies of those current licenses;
(5) Whether ever refused an
auctioneer's license in any state, and if so when, and the details of the
refusal or denial including:
a. The reason(s) for the
refusal or denial;
b. The name of each state
licensing authority that refused or denied issuing the applicant a license; and
c. The date(s) of refusal or
denial;
(6) Whether there has been any
disciplinary action taken against the auctioneer in any state, and if so,
provide a copy of the order and details of the disciplinary action including:
a. The reason(s) for the
disciplinary action(s);
b. The name of each state
licensing authority that has issued the disciplinary action;
c. The docket number of the
order;
d. The date(s) of disciplinary
proceedings; and
e. The penalties imposed,
including, but not limited to, fines, and dates of sanctions;
(7) Whether, in the time since
the last renewal application was submitted, the licensee has been convicted of
any felony or misdemeanor involving theft, fraud, deceit, misrepresentation, or
other breaches of fiduciary duties, and, if so, the details including:
a. The type of offense;
b. The date of conviction;
c. The docket or case number
for each conviction or plea of guilty;
d. The name and address of the
court(s) issuing the decision(s);
e. Each resulting sentence,
penalty and/or fine imposed;
f. A description of each
offense and the disposition of each such case; and
g. Whether all terms of the sentence,
penalty or fine have been fulfilled, and if not, an explanation of why the
terms have not been fulfilled;
(8) Whether, in the time since
the last renewal application was submitted, there are, or have been, any suits
in any court involving theft, fraud, deceit, misrepresentation, or other
breaches of fiduciary duties, to which the licensee is a party, and if so, the
details including:
a. The date of the
suit/proceeding(s);
b. The type of action(s);
c. The docket or case number(s);
and
d. The name and address of the
court(s) for the proceeding(s).
(b) The bond, extending at least for the term of
the license, required by RSA 311‑B:8 shall be filed with the board before
a renewal is issued.
(c) All forms shall be complete and shall be
signed and dated by the applicant in ink and notarized. All forms shall contain the certification set
forth in Auc 301.01(n). Incomplete forms submitted without the bonds,
fees, or other necessary attachments shall be returned to the licensee.
(d) The non-resident renewal form shall have the
same information as the resident renewal form with the addition of a
power-of-attorney appointing the New Hampshire Secretary of State’s office as
said out of state auctioneer’s attorney for purposes of service of process in
New Hampshire.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New. #5441, eff 7-27-92; ss by #6658, eff 1-1-98,
EXPIRED: 1-1-06
New. #12201-B, eff6-7-17
Auc
401.02 Notice of Expiration. A renewal form shall be mailed to each licensee's
address of record at least 30 days in advance of the expiration of his license.
Source. #1993, eff 3-31-82; ss by #2706, eff 5-10-84;
ss by #4093, eff 7-21-86; EXPIRED 7-21-92
New. #5441, eff 7-27-92; ss by #6658, eff 1-1-98,
EXPIRED: 1-1-06
New. #12201-B, eff6-7-17
Auc
401.03 Reinstatement Licensure.
(a) If a license is not renewed before the expiration
date, then the license shall be deemed to have expired, and a license may renew
an expired license up to 6 months after its expiration date by complying with
the requirements of RSA 311-B:10 and Auc 401.01 and
by submitting the required late fee as established by the board under Auc 304.02(b).
(b) If an expired license is not renewed within 6
months under (a) above, then the license is deemed to have lapsed and such
person may obtain a license only by qualifying anew as an original
applicant. However, the board shall review a lapsed license within 30
days from the date of application.
(c) If a license expires or lapses as a result of a person being ordered to active duty with
the armed forces, the 6-month time period for complying with the requirement of
RSA 331-A:19 shall begin upon the licensee's date of discharge or release from
active duty, and the late fee shall be waived.
(d) The rights of the licensee under such expired
or lapsed license shall be terminated. It shall be unlawful to act or
attempt or offer to act in any matter as an auctioneer under an expired or
lapsed license.
Source. #12201-B, eff6-7-17
Auc 401.04 Active Duty
Military Inactive Status.
(a)
The board shall place an auctioneer on inactive status upon receipt of:
(1) A written request; and
(2) Proof of active duty
service in the Armed Forces of the United States.
(b)
The board shall return an auctioneer to active status upon receipt of:
(1) A renewal form that is complete, signed and
dated by the applicant in ink and notarized.
Incomplete forms submitted with the bonds, fees, or other necessary
attachments shall be returned to the licensee;
(2) The non-resident renewal form shall have the
same information as the resident renewal form with the addition of a
power-of-attorney appointing the New Hampshire Secretary of
State’s office as said out of state auctioneer’s attorney for purposes of
service of process in New Hampshire;
(3) Payment of the renewal
fee;
(4) The bond, extending at least for the term of
the license, required by RSA 311-B:8; and
(5) Proof that the licensee has not been
discharged from service in the Armed Forces of the United States for more than
one year.
Source. #12201-B, eff6-7-17
CHAPTER Auc 500 ETHICAL STANDARDS
PART Auc 501
ETHICAL STANDARDS
Auc
501.01 Obligation To Obey. The ethical standards set forth in this part
shall bind all licensees, and violation of any such standard shall be a basis for imposing disciplinary sanctions. Conduct proscribed by these ethical
standards, when performed by an unlicensed person or during a prior period of
licensure, shall also be a basis for denying a license application.
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-B, eff6-7-17
Auc
501.02 Standards of Conduct.
(a) A licensee shall submit only truthful and correct information in any
application or other document filed with or statement made to the board.
(b) A licensee shall inform the board of a
principal business address to which all official board communications should be directed.
The establishment of a business address or the change or abandonment of
a business address shall be reported to the board within 30 days.
(c) If challenged by any person(s) prior to or
after an auction, the auctioneer shall show the identification card with his
license number, issued by the board, as evidence of licensure at any auction he
is conducting. The auctioneer of record shall at all auctions post
conspicuously at registration and check out his or her full name and official license number, the
name, address and telephone number of the board of
auctioneers, and an 8.5” x 11” copy of his or her auctioneers license as issued
by the board.
(d) The responsible auctioneer shall pay
consignors all sums due them for goods sold at auctions conducted by said auctioneer within 15 calendar days or at some other time
mutually agreed upon in writing by both parties, except as follows:
(1) A subsequent written
agreement signed by both parties may alter a payment schedule initially
established between the parties, but a licensee who does not pay in accordance
with a payment schedule which was in effect at the time payment was due shall
be subject to misconduct sanctions even if the consignor later consents to a
modification of the schedule;
(2) If a third party claims or
disputes the ownership of the goods sold, the monies shall be placed in an
escrow account, with an independent escrow agent pending resolution of the
claim, and
(3) If a third party brings
legal action against the auctioneer for payment to the consignor, the monies
shall be placed in an escrow account with an independent escrow agent pending
resolution of the claim.
(e) The responsible auctioneer shall provide to
the consignor an accounting of each lot sold at auctions conducted by said
auctioneer within 15 calendar days or at some other time mutually agreed upon
in writing by both parties.
"Lot" means the object or group of objects offered by an
auctioneer for one money.
(f) All auction advertisements shall include the
name and license number, as shown on the license, of the responsible auctioneer
who plans to conduct the auction.
(g) Except when participating in auctions
exempted by RSA 311-B:13, any licensed New Hampshire auctioneer, who, in any
manner and to any extent, represents in New Hampshire an auctioneer who is not
licensed in New Hampshire, shall meet the following requirements:
(1) The New Hampshire licensed auctioneer
shall become the responsible auctioneer and shall include his/her own name and
license number in all advertisements for such auction; and
(2) The New Hampshire licensed
auctioneer shall be fully responsible for any representation, act, or failure
to act on the part of the auctioneer who is not licensed in New Hampshire;
including, but not limited to, providing an accounting, as described in Auc 501.02(d), to consignors and payment of all consignors.
(h) Any person attempting to subvert the purpose
of RSA 311-B by buying property for auction so as not to be literally selling
for another shall be required to comply with the licensing provisions of RSA
311‑B:4. Any advertisement of such
unlicensed auction shall be prohibited pursuant to RSA 358‑G:2(I).
(i) The responsible auctioneer listed in auction
advertisements shall be physically present at said auction. If the responsible auctioneer cannot, for
whatever reason, be present at the auction, another New Hampshire licensed
auctioneer shall be designated as the agent of the responsible auctioneer and
be present throughout the auction. The
responsible auctioneer shall still be the licensee fully responsible for the
conduct of the auction. However, the
designated agent shall be also held responsible for his own actions at the
auction, but this shall not relieve the liability of the responsible
auctioneer.
(j) Consignor's unsold property shall be returned
or made available to the owner of record within 15 calendar days of the
completion of the auction, unless otherwise agreed upon by both consignor and
the responsible auctioneer, or unless a dispute arises regarding ownership of
said property.
(k) The term "estate" shall only be
used in the heading of an advertisement when the majority of lots or property
being offered for sale during the auction is property of a deceased person or
persons or property of one or more persons whose decision
making is being performed by a guardian or conservator.
(l) The responsible auctioneer shall keep such
records as to enable reconstruction of an auction in the event of a
complaint. Said records shall be kept
for a minimum of 2 years.
(m) The stated starting bid or stated minimum
bids in any public advertisement shall be no less the reserve amount.
(n) Any item advertised or conducted as an
absolute auction, an auction without reserve, or on any similar basis in which
there is no reserve or minimum bid set for the items shall comply with the
requirements of Auc 102.01(a).
(o) The owner of property being auctioned and any
designated person acting on behalf of the owner may only cast a total of one
bid on the property. The identity of the
owner or the designated person, and the intent to offer a bid on the property,
shall be disclosed to all registered bidders at the auction, prior to the
property being auctioned. The owner or
any designated person shall not bid on property in an absolute auction. An auctioneer shall not conduct an auction in
violation of this rule.
(p) The owner of property being auctioned may do
only one of the following:
(1) Give notice that the
auction is being conducted without reserve;
(2) Give notice that the owner
or a designated person may cast one bid on the property as set forth in Auc 501.02(o); or
(3) Give notice that the owner
reserves the right to reject all bids.
(q) In an absolute auction, the owner shall not
use any of these 3 techniques. An
auctioneer shall not conduct an auction in violation of this rule.
(r) For purposes of RSA 358-G:1(II), a bid shall
be considered fictitious if the person procuring it has the legal authority to
release the bidder from the obligation incurred by his/her bid.
(s) Licensees may bid on their own behalf provided that this has been fully disclosed to the bidders
and the licensee has the intention to buy the item.
(t) If a bid is made 'while the hammer is falling'
in acceptance of a prior bid, the auctioneer may reopen the bidding or declare
the goods sold under the bid on which the hammer was falling.
(u) Regardless of the type of auction, a bidder
may always retract his/her bid at any time before an item sells (before the
hammer falls). A bidder’s retraction shall not revive any previous bid.
(v) An auctioneer, at his or her discretion, may
accept or refuse bids from anyone who lacks contractual legal capacity such as
a minor, an intoxicated person, or someone who is mentally incompetent.
(w) An auctioneer may reject or refuse to accept
bids that are considered trifling increases over the preceding bid.
(x) An auctioneer shall not call an item sold
unless he or she has a good faith belief that title to the property will
transfer to the successful bidder upon payment of the auction price.
(y) Any violation these standard of conduct, or
any violation of New Hampshire statutes shall be a violation of the code of
ethics established by the board through rulemaking in accordance with RSA
541-A, under RSA 311-B:11(II)(c).
Source. #6658, eff 1-1-98, EXPIRED: 1-1-06
New. #12201-B, eff6-7-17
PART Auc 502
CONDUCT OF AUCTION; RECORDS.
Auc
502.01 Conduct of Auction; Records.
(a) No licensee shall accept an item for sale at
an auction without first having a written agreement with the owner or
authorized agent of any property to be sold.
The agreement shall contain the terms and conditions upon which the
auctioneer received the goods for sale, including but not limited to the
auctioneer’s commission rate, the auction date, an itemized
list of items accepted, and any minimum bids applicable to the auction. The licensee shall provide the owner with a
signed copy of the agreement and shall keep at least one copy for his own
records for 2 years from the date of the agreement. Copies of all contracts shall be made
available to the board or its designated agent during business hours.
(b) Each licensee shall maintain consignment
records and enter in them, upon receipt of goods for auction and before sale,
the name and addresses of the person who employed the licensee to sell the
goods at auction and the name and address of the owner of the goods to be
sold. The consignment record shall
contain an adequate description of the goods to be sold and shall be sufficient
to reasonably identify the items. Consignment records shall be available for
inspection by the board or its designated agent upon request.
(c) Each licensee shall maintain sales records
which identify the purchaser of all goods sold by name, address, and when
possible, telephone number. The sales
records shall contain an adequate description of the items sold and shall be
sufficient to positively identify the owner of the property. Sales records shall be maintained for a
period of not less than 2 years from the date of sale. Sales records shall be available for
inspection by the board or its designated agent upon request.
Source. #12201-B, eff 6-7-17; amd
by #12451, eff 1-10-18
PART Auc 503
ADVERTISING
Auc
503.01 Advertising.
(a) It shall be a violation of these rules to
advertise a bankruptcy sale unless the item(s) offered for sale, whether real
or personal, are from an active bankruptcy action. Before conducting an auction
as a bankruptcy sale the majority of the items in the
sale shall come from the bankruptcy of one or more parties. Other items not
related to or from a bankruptcy action may be sold with items from a bankruptcy
action if specifically disclosed at or before the time of the auction.
(b) It shall be a violation of these rules to
advertise any auction using such descriptive words as “Urgent,” “Emergency,”
“Distress”, or any other word which connotes liquidation of assets or that the
buyers will, for some extraordinary reason, be in a position to reap some
unusual bargain without specifically disclosing, in the written advertisement
in a print size equal to the descriptive word, the reason that the sale is
“urgent,” the nature of the “emergency,” or the cause of the “distress”.
(c) It shall be a violation of these rules to
advertise any auction using such descriptive words as “seized,” “confiscated,” “forfeited,”
or any other word which connotes a governmental action whereby items are seized
or taken by a government department, agency, or board and released or sold or
that the buyers will, for some governmental reason, be in a position to reap
some unusual bargain without specifically disclosing, in the written
advertisement in a print size equal to the descriptive word, the exact nature
of the government action.
(d) It shall be a violation of these rules to
advertise any items as being from an “estate” or a “bankruptcy,” or from an
“urgent,” “emergency,” “distress,” “seized,” “confiscated,” “forfeited,” or
similar sale, unless the consignor of the item(s) to be sold is the original
owner of the item(s), the designated representative of the owner, or a federal,
state or local department, agency or board charged with disposing of the
item(s), and consigned the item(s) directly to the advertised sale.
(e) It shall be a violation of these rules to:
(1) Reference the U.C.C. or any
other uniform act or federal or state law in any advertisement unless such act
or law is required, by law, to be referenced;
(2) Reference or mention any
federal, state, or local department, agency, or board in any advertisement
unless specifically required by law to do so or unless prior written approval
is received from such department, agency or board; or
(3) Otherwise connote in any
advertisement that the auction is under the auspices of, at the direction of,
or required by federal or state law or act or a federal, state, or local agency
or board and that the buyers will, for some legal or governmental reason, be in a position to reap some unusual bargain.
(f) It shall be a violation of these rules to
advertise for sale items which the auctioneer/firm does not intend to offer for
sale at the advertised auction.
(g) It shall be a violation of these rules for an
auctioneer or auction firm to permit its name or license number to appear on
any advertisement for an auction without reviewing the content
Source. #12201-B, eff6-7-17
APPENDIX
Rule |
Specific State
Statute the Rule Implements |
|
|
Auc
101.01 |
RSA 311-B:3 |
Auc
102.01 |
RSA 311-B:3 |
Auc
103.01 |
RSA 311-B:2 |
Auc
103.02 |
RSA 311-B:2 |
Auc
103.03 |
RSA 311-B:2 |
Auc
103.04 |
RSA 311-B:2 |
Auc
104.01 |
RSA 311-B:2; RSA 91-A:4 |
Auc
104.02 |
RSA 311-B:2; RSA 91-A:4 |
Auc
104.03 |
RSA 311-B:2; RSA 91-A:4 |
Auc
105.01 |
RSA 311-B:2 |
Auc
105.02 |
RSA 311-B:2 |
Auc
106.01 |
RSA 311-B:2 |
|
|
Auc 201.01
- Auc 201.02 |
RSA 311-B:11, RSA 311-B:11-a |
Auc
201.03 |
RSA 311-B:11; RSA 541-A:30-36 |
Auc
201.04 - Auc 201.05 |
RSA 311-B:3,I(f); RSA 311-B:3,I(g); RSA 311-B:11; RSA 311-B:11-a |
Auc
202.01 - Auc 202.02 |
RSA 311-B:3,I(f); RSA 311-B:3,I(g); RSA 311-B:11; RSA 311-B:11-a |
Auc
203.01 - Auc 203.19 |
RSA 311-B:3,I(f); RSA 311-B:3,I(g); RSA 311-B:11; RSA 311-B:11-a; RSA 311-B:12 |
Auc
203.20 |
RSA 311-B:3,I(f); RSA 311-B:3,I(g); RSA 311-B:11, IV; |
Auc
204.01 - Auc 204.04 |
RSA 311-B:3; RSA 541-A:16,I(e) |
|
|
Auc 301.01 - Auc
301.02 |
RSA
311-B:3; RSA 311-B:5; RSA 311-B:6; RSA 311-B:8; |
Auc 302.01 - Auc
302.02 |
RSA
311-B:3; RSA 311-B:5; RSA 311-B:6; RSA 311-B:8; |
Auc 302.03 |
RSA
311-B:3; RSA 311-B:5; RSA 311-B:6; RSA 311-B10 |
Auc 303.01 - Auc
303.03 |
RSA
311-B:3; RSA 311-B:5; RSA 311-B:6 |
Auc 304.01 - Auc
304.03 |
RSA
311-B:3; RSA 311-B:5; RSA 311-B:6; RSA 311-B:10 |
Auc 305.01 |
RSA
311-B:3 |
|
|
Auc 401.01 - Auc
401.03 |
RSA
311-B:3; RSA 311-B:8; RSA 311-B:10 |
Auc 402.01 - Auc
402.07 |
RSA
311-B:3; RSA 311-B:10 |
|
|
Auc 501.01 - Auc
501.02 |
RSA
311-B:11; RSA 358-G |
Auc 502.01 |
RSA
311-B:11; RSA 358-G |
Auc 503.01 |
RSA
311-B:11; RSA 358-G |