The de-regulation of the auctioneer licensing regime in Virginia will not have positive results. Licensing promotes a basic level of competency and accountability and will diminish the value brought forth by licensed professional auctioneers and lower the public's trust in the profession. Auctioneers maintain an escrow account and maintain care, custody, and control of client’s assets and money. This is a large responsibility and there needs to be accountability.

I believe removal of licensing regulations will have a detrimental effect on Virginia's auction industry.  

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

Hello, 

My name is Josh Puffenbarger and I am a 12 year licensed auctioneer in the Commonwealth as well as a Virginia Auction Firm license holder. I'm also the Chairman of the Board for the Virginia Auctioneers Association which represents the largest collective group of auction professionals in the state.

I understand that DPOR has been tasked with reducing regulations but at what cost? The first and most important thing is consumer protection! The consumer in our industry is the seller. We as auctioneers take our sellers assets and sell them, collect and hold the their money, and then pay them after a brief period. If this is not regulated what keeps a immoral person acting in the capacity of an auctioneer from taking someone's lifetime worth of assets (sometimes several hundred thousand or more) and never paying the seller? We auctioneers currently maintain an escrow account and maintain care, custody, and control of client’s assets and money. How could we not regulate individuals and firms with this responsibility?

Secondly, the initiative is "to amend regulations that are determined to be overly burdensome or no longer applicable and provide clarity and/or combine other regulations."-DPOR. There is nothing burdensome about our industry! It's very easy to become an auctioneer! There is very little capital investment to get started, very little time investment needed to get started, and very little time and capital investment need to maintain a license. In the event that the current license law is abolished it would require more regulations, more investment of time and money, for auctioneers as we would need to get a licensed to sell real estate and titled units that fall under the Motor Vehicle Dealers Board. It doesn't make sense to deregulate one industry in order to fulfill the Governor’s initiative when, in fact, it creates more regulations. 

I hope the DPOR will consider these things when moving forward. I would also like to invite the director and other leaders at DPOR to reach out to the Virginia Auctioneers Association to see how we can work together moving forward. I/we understand that you have a task in front of you and we are in the trenches of the industry everyday; I believe we could help each other reach a resolution that works for everybody. 

Thank you for your time and consideration! I may be reached at 540-421-5007 or josh@alliedauctioneersva.com if I can ever be of assistance .

Josh Puffenbarger

Dear Sir or Madam,

I am a licensed Virginia auctioneer and Vice President of the Virginia Auctioneers Association. 

As a professional in the auction industry, I understand the desire to reduce costs and unnecessary business regulations in Virginia per Governor Youngkin’s initiative. However, it is important to consider the potential consequences of deregulation of the auction industry. While it may appear to reduce barriers to entry, the reality is that eliminating the statewide auctioneer’s license would, in fact, result in greater obstacles for those entering the profession. As with other fields, licensing and continuing education requirements ensure a minimum standard of competence for professionals and serve as a safeguard for the public.

Eliminating the auctioneer licensing requirement would not reduce regulation for auctioneers, nor would it reduce barriers to entry into the profession. In fact, it would increase the burden on auctioneers by requiring them to obtain additional licenses for selling real estate and motor vehicles for estates, trusts, and businesses. Currently, licensed auctioneers can sell real estate without a broker's license and can facilitate the sale of motor vehicles or trailers without a motor vehicle dealer's license. Furthermore, without a statewide license, auctioneers would be required to obtain business licenses in multiple jurisdictions where they conduct auctions, adding significant regulatory burden.

Importantly, without the auctioneer license law, individuals without proper training may conduct auctions without collecting and remitting sales tax appropriately. This could result in lower state revenues and increased enforcement expenses. The auctioneer license law requires licensed auctioneers to collect sales tax for all taxable sales they conduct, ensuring proper management of state funds.

The elimination of the auctioneer license law would also affect license reciprocity with other states, increasing the regulatory burden on Virginia auctioneers and making it harder for them to conduct business outside of the state. This is because Virginia auctioneers currently have reciprocity with 14 out of 27 states that license auctioneers. Without a license law, Virginia auctioneers would have no reciprocity with other states that require licensure.

Auctioneers hold a major fiduciary responsibility for their clients and are accountable for managing millions of dollars of assets annually. The auctioneer license law requires the use of an escrow account and timely disbursement of funds, ensuring accountability for these funds. The auctioneer licensing law also require that auctioneers be properly bonded in case an issue arises. Having these regulations within the auction industry ensure the protection of the public, their assets, and their funds.

The elimination of the auctioneer license law would also open the door to unscrupulous persons in the business, as there is already a proliferation of unlicensed tag sale, estate sale, and online auction companies that have taken advantage of unsuspecting people trying to settle estates or downsize, whereas licensed auctioneers are held to a higher standard of professionalism and accountability.

To summarize:

• Eliminating the statewide auctioneer's license would INCREASE barriers to entry into the profession.
• Without a license, auctioneers would need to apply for ADDITIONAL LICENSES to sell real estate and motor vehicles.
• Deregulation would INCREASE regulatory burden and require auctioneers to obtain business licenses in multiple jurisdictions.
• Unlicensed individuals may conduct auctions without collecting and remitting sales tax appropriately, leading to LOWER STATE REVENUES and INCREASED ENFORCEMENT EXPENSES.
• Eliminating the license law would affect LICENSE RECIPROCITY with other states.
• Licensed auctioneers hold a fiduciary responsibility for their clients and are accountable for managing MILLIONS of dollars of assets annually.
• Licensing and continuing education requirements ensure a minimum standard of competence for auctioneers, just like other licensed professionals.

In conclusion, I urge you to consider the negative consequences that would arise from eliminating the auctioneer license law in Virginia. Doing so would increase regulatory burdens, decrease state revenues, and lower the standard of professionalism for the auction industry. Retaining the auctioneer license law is crucial to ensuring accountability, competence, and trust in the auction profession for the benefit of both professionals and consumers. Let's work together to maintain this essential regulation.

Thank you for your consideration.

Wendy Grimm
Daniel Auction Service
Vice President, Virginia Auctioneers Association

Mark W. Craig Auctions

4 Pops Lane, Bridgewater, VA 22812

Tel: (540) 246-6430     E-mail: markcraigauctions@gmail.com

March 15, 2023

Commonwealth of Virginia Auctioneers Board

Department of Professional and Occupational Regulation

9960 Maryland Drive, Suite 400, Richmond, VA  23233

ATTN:  Ms. Bonnie Davis, Regulatory Operations Administrator

Re:  Comments in Response to Notice of Intended Regulatory Action Regarding   Virginia’s Regulations Concerning Auctioneers.

Dear Ms. Davis:

By a Notice of Intended Regulatory Action (“NOIRA”) published in 39 Va. Register of Regulations #13 on February 13, 2023, the Virginia Auctioneers Board (the “Board”) announced its intention to consider amending 18VAC25-21, Rules and Regulations of the Virginia Auctioneers Board (the “Regulations”).  The announced purpose of the Intended Regulatory Action (the “IRA”) is “to remove overly burdensome or no longer applicable requirements and clarify and consolidate regulations in accordance with Governor Youngkin's Executive Directive One (2022)”.  The deadline for submitting public comments on the IRA is today, March 15, 2023.   

By this letter, I’m submitting to the Board my comments on the IRA.  By way of background, I’m a licensed Virginia auctioneer (#2905002160) doing business in the Shenandoah Valley since 1995.  I conduct approximately 60 auctions each year, auctioning both personal property (including motor vehicles, farm equipment, coins, firearms, furniture, and household goods) and real property.

* * * * * * * *

First and foremost, the NOIRA has no text, or any link to the text, of whatever amendments to the Regulations the Board is considering; indeed, the Virginia Regulatory Town Hall website (townhall.virginia.gov) states that the NOIRA was submitted without any “preliminary draft text” of the amended Regulations.  I’m informed by a friend of mine, who’s both an active Virginia lawyer and an avid auction-goer (and who helped me prepare these comments), that he’s been in touch with you by telephone and e?mail, and that you’ve advised him that, after comments on the IRA are received and considered, the Board will publish for public comment the full text of the proposed amended Regulations.  I’m trusting that this advice is correct and, if so, please be assured that I’ll have comments on the proposed amended Regulations if they’re warranted.

That being said, what is posted on the Virginia Regulatory Town Hall website is an Agency Background Document (the “ABD”) for the NOIRA, which identifies 22 out of the 30 provisions of the Regulations that the Board is considering for amendment or deletion. (The eight provisions that apparently are to be left intact are 18VAC25-21-10, ?30, -70, ?95, -120, -170, -185, -260).  The Board’s proposed actions vis-à-vis these 22 provisions fall into several distinct categories, which I address in no particular order:

1. The ABD identifies four provisions (18 VAC25-21-40, -100, -230, -250) proposed to be “repealed as [their provisions are] specified/repeated in the statute”.  I don’t think that’s a good idea.  Considering the IRA’s announced purpose, these four provisions aren’t “overly burdensome or no longer applicable requirements” and their removal doesn’t “clarify [or] consolidate regulations.”   Rather, in my opinion, their removal detracts from the nature of the Regulations as a comprehensive and comprehensible body of rules that benefits not just the public but also auctioneers, by enhancing their notice of, and thus their compliance with, those rules.  Indeed, my lawyer friend mentioned above, who practiced federal administrative law for almost 40 years, tells me that regulations commonly and deliberately incorporate statutory language for that very purpose.  In short, removing all statutory language from regulations may well save on paper and ink, but it has a significant downside. 

2. The ABD identifies six provisions (18 VAC25-21-20, -50, -110, -140, -150, -190) for which “the language is [proposed to be] reworded and clarified”.  Since the IRA doesn’t explain how their language is proposed to be reworded or clarified, I await publication of the full text of any proposed amendments to the Regulations before commenting.

3. The ABD proposes to repeal 18VAC25-21-60, regarding the auctioneer’s examination, because “it is repeated in another regulation”.  That other regulation isn’t identified, and I can’t find it.  The one that comes closest is 18VAC25-21-200, but that regulation specifies the subjects that a school of auctioneering must teach, not those that an auctioneer’s examination must cover.

4. The ABD proposes to amend two provisions (18VAC25-21-80, -90) because “a portion of their information is redundant”.  What language is deemed redundant isn’t specified, so I await publication of the full text of any proposed amendments to the Regulations before commenting.

5. The ABD identifies five provisions (18VAC25-21-130, -180, -240, -270, ?280) that are proposed to be repealed/deleted, in whole or in part, “because [they are] unnecessary”.  I disagree with that assessment.  Specifically:

a. 18VAC25-21-130: As I understand it, the proprietor of every licensed business in Virginia must display the business license in the principal place of business or carry it if mobile; auctioneers should be no different.

b. 18VAC25-21-180:  How is it unnecessary for the Regulations to specify the grounds for disciplinary action against an auctioneer?  And what particular grounds for disciplinary action does the Board deem unnecessary?

c. 18VAC25-21-240, -270, -280:  Speaking as a licensed auctioneer who regularly attends auctioneering continuing education courses, the requirements embodied in these provisions are very necessary if continuing education, as essential in auctioneering as it is in any other regulated profession or business, is to be effective and enforceable.

6. The ABD identifies four provisions that are proposed to be repealed because their substance is “better suited” to be incorporated into other provisions that are proposed to be “reworded and clarified”.  Specifically, 18VAC25-21-160 is to be incorporated into revised 18VAC25-21-140, while three provisions (18VAC25-21?200, -210, -220) will be incorporated into revised 18VAC25-21-190.  Absent the proposed reworded/clarified language of the provisions that will receive the substance of the provisions proposed for repeal, I can’t meaningfully comment at this time.

* * * * * * * *

Finally, I think it’s important for the Board to take a step back from the details of its proposed amendments to the Regulations and consider generally the essential purpose of legislative statutes and administrative regulations, and specifically the vogue currently enjoyed by efforts to consolidate, streamline, and otherwise “reduce” them.  In the abstract, everyone (except, perhaps, a few lawyers, politicians and functionaries) would like to see our legislatures and agencies simplify the complex, shorten the verbose, remove the redundant, and do away with the unduly burdensome and the unnecessary.  But these aren’t to be done for their own sake; rather, they’re the surest means to a desirable end – that being, in our particular context, crafting a set of intelligible rules and requirements that are conducive, if not essential, to the honest, economical and effective conduct of auctioneering.  I respectfully urge the Board to stay focused on achieving that goal rather than “reducing” the Regulations at all costs.   

* * * * * * * * *

I hope that you will find my comments useful in the Board’s consideration of possible amendments to the Regulations.  Please feel free to communicate with me if you have any questions about them.

Sincerely,

Mark W. Craig Auctions

                                                                           By Mark W. Craig, Principal

P.S.:  I’ve read the five comments on the IRA that have thus far been posted on townhall.virginia.gov.  They explain in great detail, and most persuasively, why auctioneering shouldn’t be deregulated, and especially why auctioneer licensing shouldn’t be eliminated.  Apparently, their concerns arise from the unsuccessful proposal to do so made during last year’s legislative session by means of Senate Bill 1480.  

I agree wholeheartedly with everything that the prior commentators say but, with all due respect, they don’t address the IRA by its own terms.  For example, the IRA proposes that, of the six provisions of the Regulations governing auctioneer licensing (18VAC25-21-20 through ?70), two (-30, -70) will be left intact, two (?20, ?50) will be reworded/clarified, and two (-40, -60) will be removed as redundant.  So at this time, the IRA doesn’t look to me like a backdoor attempt by the Board to deregulate auctioneering or eliminate auctioneer licensing, i.e., to achieve by amended regulation what failed by amended statute.  Nor can it be so, since the Board, as an administrative agency, is bound by its governing statutes and lacks the power to nullify, deviate from, or ignore them.

As a licensed auctioneer in Virginia, I’m writing to let you know that, on behalf my clients, future clients, and Virginia citizens overall, I am strongly opposed to removing regulation for our industry.  

The protection DPOR Regulation provides is “necessary for the protection or preservation of the health, safety, and welfare of the public” (§ 54.1-100). 

We are:

• pro-business
• pro-competition
• and most importantly pro-clients (the public citizens of Virginia)!

Auctioneers handle estates, assets, and escrow accounts for Virginia families and welcome the DPOR regulation to hold us accountable and keep out bad actors.  DPOR regulation, licensing, and the continuing education required each year allow us to serve our clients and their families effectively. 

Some highlights to consider:

• Auctioneers maintain an escrow account and maintain care, custody, and control of client’s assets and money.  How could we not regulate individuals and firms with this responsibility?   
• Without proper regulation, it’s near certain, we could breed a series of bad actors affecting the longstanding history and success we have held as an industry.
• According to DPOR our auctioneer board is among the lowest of complaints.  It’s working as it is!
• Unlike most other occupations regulated by Virginia DPOR, Auctioneers act in a fiduciary capacity to their clients.
• There are 973 current licensed professional auctioneers in the state of Virginia, some solely public facing bid-callers, many being full-time auction firms handling client’s assets and family finances. 

Please feel free to contact me with any questions or let me know how I, or our state auctioneer association, can help share more insights that the impact this bill will have on our client citizens.

Thank you for understanding the severity of this issue for our clients and the integrity of our industry. 

To Whom it May Concern,

Thank you for the opportunity to contribute an opinion on deregulating the auction industry in Virginia.  My name is Ben Wagner and I am in the farm, garden and heavy equipment industry.  I both buy and sell machinery at auction.  I spend thousands of dollars a year buying.  I trust auctioneers to sell any slow moving inventory.  I am not alone; most of my friends in similar businesses buying and selling equipment schedule their time around these auction sales.  Auctions are an essential part of our businesses.  

As a regular seller and buyer at numerous auctions with many different auctioneers and auction firms,  I am concerned that this deregulation attempt is dangerous for Virginia's citizens.  

Auctioneers do more than just talk fast, call bids and wear cowboy hats.  As sellers, we trust them to represent our "interest" and monetary investment in whatever the item is that we are selling.  That item might be a ten cent knick-knack or a $80,000 farm tractor.  After that item sells and the buyer takes it home, we trust the auctioneer to deliver to us the dollar results of that sale.  Current Virginia licensed auctioneers call that a fiduciary responsibility, and it is a serious concern to hear that deregulating Virginia's auction industry will allow unscrupulous folks to run wild with no thought of that responsibility.

Without the current regulation and licensing, how do I know as a seller that I can trust my $80,000 farm tractor to this cowboy hat-wearing man who shows up with smooth talk and big empty promises?  How do I know that I will get paid once he takes both my tractor and the buying customer's money?  This is a cause for concern! 

The current auctioneer license law requires the use of an escrow account and timely disbursement of funds.  The guarantees accountability for these funds. The auctioneer licensing law also require that auctioneers be properly bonded in case an issue arises. These regulations within the auction industry ensure the protection of the public, their assets, and their funds.  

These regulations ensure the protection of me as a seller.  These regulations allow me to trust auctioneers across the state.  

If you will, imagine the chaos that could happen with no licensing and an immoral, unscrupulous, crooked auctioneer.  Not only could I be defrauded as a seller who gave up my tractor and never got paid, the buyer also could be defrauded as well with expensive lawsuits, title delivery issues, etc.  

With that chaos in the Virginia auction industry, any money and personnel saved by eliminating an auction license could be consumed by investigating potential cases of fraud.  

The elimination of the auctioneer license and regulations will open the door to unscrupulous persons in the auction industry.  I've seen issues already with unlicensed tag sales, estate sales, and especially online auction companies that have taken advantage of unsuspecting Virginians trying to settle estates or downsize.   These unsuspecting Virginians are now looking to the state to help ensure this doesn't happen again.

As a businessman, I can assure you that without the assurance of a real Virginia administered auctioneering license, I will be forced to consider taking my inventory to be sold in states where auctioneers are held responsible for their actions.  I'll be one of many sellers who take their property out of state to places where I have at least the reassurance that the auctioneer is under regulation to do his job.  The auction industry in Virginia is huge.  Millions of dollars trade hands every year through the work of Virginia auctioneers.  

As a fellow resident of Virginia, I am sure you want to see this million dollar auction business stay profitable.  Auctions bring in tens of thousands of dollars yearly in sales tax revenue to the state.   We don't want to see that revenue go across other state lines.  

In conclusion, as a seller and buyer at auctions across the state spending thousands of dollar a year both buying and selling equipment, I am firmly against any attempt to deregulate the auction industry in Virginia.  

Virginia's licensed auctioneers are currently held to a high standard of professionalism and accountability.  I respectfully ask that we keep it that way!  

Thank you for your time and consideration.  If you have further questions I would be happy to answer them.

Ben Wagner