Virginia Regulatory Town Hall
Department of Professional and Occupational Regulation
Auctioneers Board
Regulations of the Virginia Auctioneers Board [18 VAC 25 ‑ 21]
Action General Regulatory Reduction Initiative
Comment Period Ended on 3/15/2023
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3/8/23  8:22 pm
Commenter: Linford Berry

Auctioneers License and Regulatory Issues

To whom it may concern:

I am a licensed auctioneer and auction firm owner in Virginia.  I also hold an auctioneer license in WV and TN. In addition, I am a licensed real estate agent in VA and a licensed Motor Vehicle Dealer in VA.  I currently serve on the board of directors for the Virginia Auctioneers Association and am an active member of the National Auctioneers Association, The West Virginia Auctioneers Association, and The Auctioneers Association Of Maryland.

I am opposed to deregulation of the auctioneer profession in the State of VA for the following reasons.

  1. Auctioneers act in a fiduciary capacity for estates, trusts, businesses, municipalities, and individuals.  Auctioneers like myself sell many millions of dollars of assets annually and hold these funds in an an escrow account until disbursed to our sellers. The auctioneer license law requires the use of an escrow account and timely disbursement. There are very few professions in the state that handle more of other people's money in a fiduciary capacity than auctioneers.
  2.  Deregulation of the auctioneer profession would not result in a net regulation reduction for auctioneers and neither would it reduce the barriers to entry into the profession.  If auctioneers were not licensed in VA then they would need to apply for additional licenses in order to sell real estate and motor vehicles for estates etc. (Currently licensed auctioneers can sell real estate without a brokers license. They can also facilitate the sale of a motor vehicle or trailer etc. without a motor vehicle dealers license).  
  3. There is also the issue of license reciprocity with other states.  If Virginia did not have an auctioneer license law it would make it exponentially more difficult for auctioneers based in VA to acquire a license to work in another state.  Currently 27 states license auctioneers and VA auctioneers have reciprocity with 14 of those states.  Without a license law we would have no reciprocity with other states that require licensure.
  4. Business license and taxes. Currently licensed auctioneers are required to have a business license and pay business license tax only in their home county or city. Without a license law they would also be required to apply for business licenses in multiple jurisdictions in which they might conduct auctions instead of only the jurisdiction that their business is based in.  This would be a significant regulatory burden for many auctioneers in VA.
  5. Sales Tax: Licensed auctioneers are required to collect sales tax for all taxable sales they conduct.  Without license law there may very well be an increase in individuals conducting auctions without collecting and remitting sales tax appropriately.  This would result in lower revenues for the state an increased enforcement expenses.
  6. License law and associated continuing education requirements are a good way to maintain a minimum standard of competence for professionals in any field and auctioneers are no exception.  We expect car dealers, real estate agents, attorneys, accountants, and other professionals to be licensed and maintain continuing education.  Why should auctioneers be treated differently especially since we perform tasks that are similar and overlap many other professions?
  7. There is already a proliferation of unlicensed tag sale, estate sale, and online auction companies which have in many cases taken advantage of unsuspecting people who are simply trying to settle their parents estate or downsize. Auctioneers are held to a higher standard and rightfully so. Eliminating the license law would make it harder for auction professionals to set themselves apart in the marketplace as professionals who have a license at stake. It would open the door to "bad actors" in the business.

In addition to these objections, I would offer some suggestions for improving the auctioneers license law so that it would be more effective. I realize that some of these suggestions may require legislative changes that go beyond the scope of the DPOR.

  1. Update the license law to require a license for online only auctions.  Online only auctions are functionally no different than an auction conducted by live-outcry auctioneers in terms of their fiduciary responsibilities to sellers. As an online only auctioneer I could sell millions of dollars of other people's assets and not be required to have a license but as soon as I open my mouth and ask for a bid verbally I am required to have an auctioneers license.  It makes no sense at all.  Online auctions are the way the industry is headed. Exponentially more dollars are exchanged in online only auctions in VA than in live outcry auctions and that trend will only continue. Currently NC, WV, TN, PA, and many other states do require licenses for online only auctions.  It is time VA updates its laws to regulate online auctions.
  2. Update the regulations and the test for the auctioneers license to make it more relevant to modern auctioneering. Many of the questions on the test are not applicable to what modern auctioneers deal with on a regular basis.  Some of the regulations such as those surrounding advertising and contracts for auctions also need to be updated.
  3. Create a separate category for auctioneers who only conduct benefit auctions and do not sell other people's real or personal property. These auctioneers do not generally operate in a fiduciary capacity and the current requirements of the auction law are not applicable to their work in many cases.
  4. Create an enforcement mechanism for the auctioneer law.  Currently the maximum extent of enforcement by the DPOR Auctioneers Board is the revocation or suspension of a license. The DPOR and auctioneers board has no enforcement mechanism for an unlicensed individual conducting auctions.  When I reported an unlicensed auctioneer to DPOR, I was told to contact my local commonwealths attorney or law enforcement.  When I contacted local law enforcement and the commonwealth's attorney they said that it wasn't their jurisdiction and I should contact DPOR.  Many other professions in VA have an enforcement mechanism.  Auctioneers should too.

In summary, I would respectfully ask that any changes to the auctioneers license law and/or regulations be carefully vetted by industry stakeholders and consumer protection agencies before being pushed forward by DPOR.  These laws were designed to protect the public and they have worked very well in most cases.  In my opinion, it would be reckless to eliminate the auctioneers license law and it would have many unintended consequences for auction professionals and the general public.

Thanks for your consideration,

Linford Berry

CommentID: 211190