posted on December 6, 1999 09:16:05 PM new
As you’re probably aware, there is some controversy about North Carolina and New Hampshire’s recent interpretations of their old auctioneering statutes, as they are attempting to require that regular online auction sellers become licensed as auctioneers in those states.
Online Auction Users Association is opposing those efforts, and we’ve discussed those efforts in other threads.
If you want to find out whether your state has similar auction licensing statutes (many do; that does not mean they will try to apply them to online auction sellers!), this is a great site that has most of the State and Federal statutes, searchable:
You can also search all the Attorney General legal or opinions for a given state; you can sign up for an email mailing list for a given topic (Cyberspace Law), or for a given state.
In order to check on the auction statutes for your state from the above link, click on:
"US State Resources", then click on your state, then click:
"Primary Materials", then click:
"General Statutes" (or something similar). Search for the word “auction” and your state’s regulations should pop up at the top of the list.
posted on December 6, 1999 10:23:57 PM new
Hello. I am from Michigan and I don't think we have a similar auction licensing statute. I searched under my state and found nothing but I was pointed to this page that lists some of the other state's auctioneer registration policies. I am surprised that New Hampshire is not mentioned but they do list North Carolina and say they are fairly diligent about enforcement.
http://www.commerce.state.mi.us/opla/auction.htm
posted on December 6, 1999 11:19:38 PM new
Hi Steve. Thanks for the link. I did a general search for auction or auctioneer licensing and nothing came up under Michigan and I didn't want to have to go through all of the articles manually. After reading through both Michigan's and North Carolina's statutes I have decided to simply switch from selling antiques to selling livestock. That appears to be somewhat safe.
Blanche
[ edited by bhearsch on Dec 6, 1999 11:23 PM ]
posted on December 6, 1999 11:31:34 PM new
Livestock? Nope, not at eBay or Amazon. They're both on the verboten list! Nice try though.
GAWWK! That is without a doubt the most contorted and complicated site I've ever visited! With Steve's excellent directions, I managed to finagle my way around to PA's auction statutes. And what I found tells me that (1) the statute was written pre-internet auction days; and (2) there doesn't seem to be any provision for auctioning your own stuff. It's ALWAYS considered to be someone else's, and the auctioneer is selling it for a commission. (hmmm...sounds more like a description of the auction site ala eBay than it does moi!)
But anyway...yup. Need a license. Need to go to school. Need to post bond. Need to pay fees. Or go to jail.
Just swell. I can see the jails now, overflowing with my fellow mature ladies...all for selling trinkets and glassware on the internet. Or maybe they'll just attach my earnings...of which there will be none once they disallow me to sell anymore.
sheesh! And we just managed to beat off the VA from taking our retirement money for my husband's surgeries, only to have the state grab the farm because I made a few thousand $$ last year selling stuff to satisfied customers. I paid all the sales tax and income tax, too, so now they have a record of me. I'm SO glad I've been an honest person. *sigh*
This should be real interesting.
Here's the url for PA laws, in case anyone is interested...
posted on December 6, 1999 11:46:33 PM new
I guess if things get too bad, we can always pack up and move to New York. The only regulations I could find there encompassed NYC. (And, as everyone who lives in Western NY knows, the rest of the state might as well be annexed by Utah as NYC doesn't acknowledge they exist.)
Anyway, the NYC license is really weird. You need a "nighttime" license if you want to sell between 8 pm and 8 am, in addition to the regular license. The good news is that no schooling or experience seems to be necessary. All you need is a bond and fingers, as you'll be fingerprinted!
Methinks we'd better count on the feds stepping in here someplace, as this patchwork of laws is bizarre to say the least!
posted on December 6, 1999 11:55:15 PM new
Hi all, I get the queasey feeling that this is not only a mandate, but the feds, sooner or later, are going to make their presence known.
Just a matter of time. I got my t's crossed and i's dotted!! Will be interesting to see the state and feds duke this one out!! The revenue on ecommerce is a biggie!!
[ edited by jeanyu on Dec 6, 1999 11:56 PM ]
posted on December 7, 1999 12:20:23 AM new
The "nighttime" auction license in NYC is a riot! Good example of local regulation run amok, and also a good example that demonstrates that these old statutes were NOT intended for online auctions.
Well, obviously they weren't, as some were drafted 45 years ago! What I mean is that it should be obvious to the regulators that these statutes do not fit the circumstances of today's online auctions, and that online auction sellers are in no way "auctioneers."
As I read these auction statues, I find references to the "audience," references to the auction ending when the "gavel falls" and the like....any common sense reading of most of these statutes leads to the conclusion that they cannot apply to online auction sellers.
Yet, the regulators try, anyway, as there are revenues at stake.
Easier to stop this nonsense now, while just a couple states age making the $$ grab, than later.
OAUA is contacting FTC...but we don't hold out a lot of hope there. Better to apply pressure locally in the states where they are embracing this lunacy.
Looks like Oregon has rules for conducting auctions, and definitions, but no licensing requirements. Here's their definition of "auctioneer," which seems quite broad:
"Auctioneer" means any person who sells or offers to sell property at auction, either on the person's own behalf or for another person."
Steve
[ edited by magazine_guy on Dec 7, 1999 01:08 AM ]
posted on December 7, 1999 01:30:47 AM new
Thank you soooo much for the links!
I agree, that is an extremely broad definition. It wouldn't be to hard for them to consider ebay an actual auction place, and therefore, I guess I'm actually an auctioneer!
Due to such a broad definition, if they ever do require licensing, I'd have to get one. I'm also sure that its just a matter of time before the state jumps on the NH and TN bandwagon.
I'll have to keep a close eye out on this. Thank you for again for the information.
posted on December 7, 1999 05:08:37 AM newbarkrock
It's OK, because we don't claim NYC either. There is the city and then the rest is Upstate NY, full of hooligans, upstarts and outlaws. Just note our football team . And we don't like a whole lot of extra laws, got too many now.
posted on December 8, 1999 11:06:22 AM new
Thought I'd bring this back up in light of the Tennessee action. Use the link above to see what your state has on the books regarding auctions!
posted on December 8, 1999 11:43:47 AM new
Hi Therm:
Yup, they sure do. Although I don't see the criminal penalties attaching for non-compliance, as with NC and NH. Maybe they are listed elsewhere.
If folks could link their state's auction statutes here as they find them, as Thermionic did, that would be a great help to others! Even though you don't live in NC, NH, or TN, it's nice to see what you may be facing.
At some point, the Online Auction Users Association will probably consolidate these links and host them on our site for reference.
posted on December 8, 1999 12:48:59 PM new
Steve: Our governor vowed "not to tamper with e-commerce" in a public radio address recently, but the conversation was centered on e-taxes.. We will see if he's a man of his word or a man of words!
posted on December 8, 1999 02:32:23 PM new
Hi Steve,
Thank you VERY much for the work that you are doing!
No auctioneer regulations pertaining to online auctions, specifically, here in Colorado. I've listed the regulations and exceptions for auctioneers in general.
Here is the link to Auctioneer Auctions (Apr. 99):
posted on December 8, 1999 02:47:08 PM new
I just took a quick look at North Carolina's law, and I certainly don't think they have a legal leg to stand on if they are trying to charge licensing fees to someone (such as myself) who sells items using online auction sites. There are 3 main objections which should destroy almost any case that they could make.
1) The licenses required are for auctions held "in this state."
An auction that is displayed on the internet has two possible places of physical residence. One might be the state where the goods exist (i.e. the owner's state). However, a more reasonable definition would be the state where the actual data exists (i.e. the physical location of the server for eBay or Yahoo or other auction house).
Reasoning:
a) The location of the auction is NOT any state that can see or bid on the auction. If you want to bid on a Sotheby's auction in England, you do not have to travel there; you can place proxy bids by telephone or other representative. North Carolina cannot claim that the entire world must now pay them license fees because one of their residences has access to a telephone and can call auction houses.
b) Although not the norm, it is possible that an auction could be held in a location other than the location of the property. The auction takes place where the bidding is, NOT where the item is. For example, an auctioneer is accepting bids on a grand piano that is 10 feet from where he is standing. The point of communication is the auctioneer at the microphone; the piano itself is NOT the auctioneer, nor is the guy dusting the piano. The piano could be 10,000 miles away, and it would still be the auctioneer (and not the piano) who was the auctioneer.
2) The owner is not an auctioneer (unless the owner is also acting as the auctioneer).
I own something and send it to an auction house. The auctioneer says "$10, who'll give me $20?" and bangs the hammer at the final bid. I can suggest a minimum bid, perhaps even give a sign that the auction has dragged on to long, but the auctioneer actually conducts the auction.
I do NOT own an auction site. eBay has the server. They order the timing. I give the virtual "auctioneer" information on my products, and it takes it from there. It is eBay's website (not mine) that makes this available in an auction format. It is eBay's program that collects the bid. It is eBay that says "auction is over; pay up."
At the very worst, states might be able to require that auction sites (such as eBay, Yahoo, etc...) that are PHYSICALLY LOCATED in their state be required to get licenses. Under current law as I read it, North Carolina cannot attempt to require licensing, even of residents of North Carolina who use auctioneers and auction sites. They could theoretically change that law (and probably get kicked out of office), but they CANNOT make such a law applying to residents of other states. For example, although I "rule" my home and have considerable leeway in any "laws" herein (such as "take off your shoes before entering", I cannot state that all North Carolina legislators must give me $1,000,000 or they are guilty of a crime punishable by death.
3) Finally, states should be careful of taking actions which may be legally defined as "obstructing interstate commerce."
Some states try to increase "taxes or tariffs" in any form because they see lots of money that they want. The presence of this money (or the concept that they have it from other taxation) will bring out legal challenges from any individual thus harassed, and may perhaps even attract the attention of federal civil suits (United States vs. North Carolina). Somebody needs to remind those legislators that, although they might be going for some "easy money," if they attempt an obviously weak legal position that costs their state and taxpayers lots of money, they will be kicked out of office and have to find an honorable way to make a living. And it will be even tougher trying to do so under some of the laws they have tried to foist off on the rest of us.
Anyway, that is my say. I am not a tax rebel of any kind. I pay my federal and state income taxes (when I have income) as well as state sales taxes on all in state purchases. I believe in and uphold the law. That is EXACTLY why I cannot support a state trying to extort money from honest citizens in a manner that is against the law and the Constitution.
That said, have a great day ... even if you happen to be a North Carolina legislator.
posted on December 8, 1999 03:04:53 PM new
Customkey:
You've said it better than I, and I've been saying it for the past week! Thanks!
The Online Auction Users Association agrees that their regulatory efforts are misguided. Nontheless, they seem intent on moving forward. We believe that considerable pressure can be brought to bear by online auction users, using the power of the internet! It is so very important that these two states are taken to task NOW, before others fall in line behind them!
I'll keep sayin' it till I'm blue in the face: Please, please take a few minutes now, and contact several of the elected reps in these states. ALL the information you need is at the link below: Email, Fax, Phone, even sample letters. Spend a few minutes today, and save us all a lot of headaches down the road!
posted on December 8, 1999 03:56:01 PM new
Okay I just got a call from Ebay and we talked about this issue and though this is not official.
I think they are looking at it from the stand point that we come under California Law as agreed too under the user agreement so that may work in our favor.I am not exactly sure what this means but maybr we will hear something soon
posted on December 9, 1999 04:22:08 AM new
Question?
Doesn't the eBay user agreement state that the auction is conducted pursuant to the laws of California? Wouldnt that make it a California auction?
Also, according to NC auction law, it is acceptable for a consignee to place an iten for sale at an auction house, and have the seller pay the buyer directly.
How is this different from consigning to the eBay auction house?
posted on December 9, 1999 06:34:01 AM new
That would certainly go a long way towards fixing the problem, if eBay can get a ruling that it is definitely a Cali auction.
posted on December 9, 1999 09:16:35 AM new
G'day,
For any Australians reading - and subject to any of my knowledge being out of date.
New South Wales and South Australia have both deregulated their General Auction industries and thus you don't need a license or a trust account to run auctions in either state any more.
I haveno knowledge at all about the laws in Northern Territory.
All other states and the A.C.T. have licensing for auctioneers, but nowhere in Australia requires that anyone reselling through auction be licensed or registered in any way.
posted on December 9, 1999 11:00:43 AM new
magazine_guy and javashark, Thanks for the Oregon links and info. No doubt our wonderful legislature will come up with some way to extort money out of us soon. I have another professional license from the state and the fees just went up this year from $20 to $75 per year. And they say inflation is low, ha, ha.
posted on December 9, 1999 12:42:46 PM new
I just got a call from Ebay and they have made this issue their top priority and have in the past few days had a number of their lawyers fly down to NC to meet with State legislators on this.
They have had a few meetings so far and more are planned next week
thats all for know.
posted on December 10, 1999 08:52:48 AM new
i did the same search as a few days ago.. i'm curious if any of you could view the reg search through the url for Va. up top.
it's different today.
http://leg1.state.va.us/000/lst/LS401749.htm
. And we don't like a whole lot of extra laws, got too many now.