HB-5295, As Passed House, December 2, 2004
SUBSTITUTE FOR
HOUSE BILL NO. 5295
A bill to amend 1955 PA 224, entitled
"An act to regulate sales at public auction; to provide for the
issuing of licenses; and to prescribe penalties for violations of
the provisions of this act,"
by amending sections 1, 2, 3, 4, 5, 6, 7, 9, and 10 (MCL 446.51,
446.52, 446.53, 446.54, 446.55, 446.56, 446.57, 446.59, and
446.60) and by adding sections 1a and 5a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 1. It shall
be unlawful for any person, firm or
2 corporation to A person shall not sell, dispose of, or offer any
3 merchandise for sale at
public auction at any place outside the
4 limits of any city or
village in the state of Michigan within
5 the limits of any township in this state, or within the limits of
6 any city or
village in the this state of Michigan that has not
7 by ordinance provided
for the licensing of sales by auction, any
8 new merchandise that is not a city or village described in
1 section 5(2), unless such
the person, firm or corporation,
2 and the owners of such
the merchandise , if it is not owned
3 by the vendors, shall
have first secured that person, has
4 obtained a license as
herein provided under and shall have
5 complied with the
regulations hereinafter set forth this act.
6 Sec. 1a. This act shall be known and may be cited as the
7 "public auction licensing act".
8 Sec. 2. Any
person, firm or corporation desiring such
9 license shall, at At least 10 days prior to such before
a
10 proposed auction sale, file
a person seeking a license under
11 this act shall file an application with the township clerk of
12 the township wherein
it is proposed to hold such city, village,
13 or township where the person proposes to hold the auction sale.
14 , an application in
writing duly verified by the person, firm or
15 corporation proposing
to sell, dispose of or offer for sale any
16 new merchandise at
public auction, which the
application shall
17 state the following
facts include all of the
following
18 information:
19 (1) The name,
residence and postoffice address of the
20 person, firm or
corporation making the application, and if a firm
21 or corporation, the
name and address of the members of the firm
22 or officers of the
corporation, as the case may be;
23 (a) The name and street address of the applicant and the
24 name and street address of 1 of the following, if applicable:
25 (i) If the applicant is a corporation, its officers and
26 directors.
27 (ii) If the applicant is an association, its officers and
1 directors.
2 (iii) If the applicant is a partnership, its partners.
3 (iv) If the applicant is a limited liability company, its
4 manager or managers.
5 (v) If the applicant is any other legal entity, its manager
6 or other person designated to control the operation of that legal
7 entity.
8 (b) (2) The
name , residence and postoffice and street
9 address of the auctioneer
who will conduct such the auction
10 sale. ;
11 (c) (3) A
detailed inventory and description of all such
12 new merchandise to be offered for sale at such the
auction and
13 a valuation thereof; of
the merchandise.
14 (d) (4) A
statement as to whether or not the a sale at
15 the public auction shall
be is with or without reservation.
16 Sec. 3. (1)
At the time of filing said application, and as
17 a part thereof an application described in section 2, the
18 applicant shall file
and deposit with the township clerk a bond,
19 with sureties to be
approved by the township board, in the penal
20 sum of furnish a surety bond to the city, village, or
township
21 clerk issued by a surety approved by the clerk. The amount of
22 the surety bond must equal or exceed 2 times the value of the
23 merchandise proposed to
be offered for sale at such the auction
24 as shown by the inventory
filed. , running to The surety bond
25 shall run to the people of the state of Michigan and for the use
26 and benefit of any
purchaser of any merchandise at such the
27 auction who might have a cause for action of any nature arising
1 from or out of such the
auction sale against the auctioneer or
2 applicant. ;
the The bond to be further conditioned on shall
3 also cover the payment by
the applicant of all taxes that may be
4 payable by, or due
from, the applicant to the state of Michigan,
5 or any department or
subdivision thereof, the payment of any and
6 fines that may be
assessed by any court may assess against the
7 applicant or auctioneer
for violation of the provisions of this
8 act. , and the
satisfaction of all causes of action commenced
9 within 1 year from
date of such auction sale and arising
10 therefrom: Provided,
however, That the The
aggregate liability
11 of the surety for all said
taxes, fines, and causes of action
12 shall in no event not
exceed the sum of such amount of the
13 bond.
14 (2) In such
bond a surety bond provided under
15 subsection (1), the applicant and the surety shall appoint the
16 city, village, or
township clerk of the township in which such
17 bond is filed, as the agent of the applicant and the surety
for
18 the service of process. In the event of such service
, the
19 agent on whom such
service is made under this
subsection, the
20 city, village, or township clerk who is served shall, within
21 5 days after the service, mail by ordinary mail a true copy of
22 the process served upon
him or her to each party for whom he is
23 on whose behalf he or she was served, addressed to the last known
24 address of such that
party. Failure to so mail said the
25 copy shall not,
however, of a process under this subsection
26 does not affect the a
court's jurisdiction.
27 (3) Such
bond A surety bond provided under subsection (1)
House Bill No. 5295 (H-1) as amended December 2, 2004
1 shall contain the consent of the applicant and surety that the
2 circuit court of the
county or the justice court of the township
3 wherein in which the application and bond is filed shall
have
4 has jurisdiction of all
actions within the jurisdiction of the
5 respective courts against the applicant or surety , or both,
6 arising out of said the
sale.
7 (4) The This
state of Michigan, or any a subdivision
8 thereof of this state, or any a person
having that has a
9 cause of action against the
an applicant arising out of the
10 sale of such new merchandise
, may join the applicant and the
11 surety on such bond a
surety bond provided under subsection (1)
12 in the same action.
, or may in such action sue either such
13 applicant or the
surety alone.
14 Sec. 4. At the time
of filing said an application and
15 surety bond under this act, the applicant shall pay to the city,
16 village, or township
clerk a license fee in the sum of $25.00
17 of [$25.00] for each day it is supposed to hold such the
18 applicant proposed holding the auction sale as shown by the
19 application for such the
license.
20 Sec. 5. (1) Upon
the filing of such application and after
21 the applicant has Subject to subsection (2), if an applicant has
22 filed an application under this act and fully complied with all
23 the provisions of this act, the township board, by the city,
24 village, or township
clerk , with whom the application was
25 filed shall issue to the applicant a license authorizing the
26 holding of such the
auction sale as proposed in said the
27 application. Such The
license shall not be is not
1 transferable , and
shall be is valid only in the city,
2 village, or township
where issued. , and shall not be valid in
3 any village which has
enacted an ordinance providing for the
4 licensing of sales by
auction.
5 (2) If a city or village has enacted an ordinance providing
6 for the licensing of sales by auction and the ordinance provides
7 the same or more restrictive requirements for the regulation of
8 public auctions than this act, a license issued under this act is
9 not valid in that city or village.
10 Sec. 5a. (1) The applicant shall post a copy of the
11 application for a license to conduct a sale under this act,
12 including the inventory filed with the application, in a
13 conspicuous place in the sales room or place where the sale is
14 conducted, but the copy does not need to show the purchase price
15 of the goods. The applicant shall attach a duplicate copy of the
16 license to the front door of the premises where the sale is
17 conducted in such a manner that it is clearly visible from the
18 street.
19 (2) Any advertisement or announcement published in connection
20 with a sale shall conspicuously show on its face the license
21 number and the date of its expiration, the name and business
22 address of the applicant, and the applicant's state sales tax
23 number.
24 Sec. 6. Within 10
days after the last day of said an
25 auction subject to this act, the applicant shall file in
26 duplicate with the city,
village, or township board clerk a
27 listing list of all merchandise sold at such the
auction and
1 the prices received therefor,
together with and a detailed
2 inventory list of all merchandise unsold at the close of
such
3 the auction. sale.
The city, village, or township clerk shall
4 , immediately after
receiving such listing of sales, forward
a
5 copy thereof of
the lists to the department of revenue
6 treasury.
7 Sec. 7. "New
merchandise" as used in this act shall mean
8 all merchandise not
previously sold at retail. "Auction sale"
9 as As used in this act, shall mean the
"auction sale" means
10 offering for sale or
selling of personal property to the
11 highest bidder, or
offering for sale or selling of personal
12 property at a high price
and then offering the same that
13 property at successive lower prices until a buyer is secured.
14 Sec. 9. The
provisions of this act shall not extend to
15 the This act does not apply to any of the following:
16 (a) A sale at public auction of livestock, farm machinery,
17 or farm produce, or used homestead goods or other
items
18 commonly sold at farm or
homestead sales. , or to auction sales
19 by individuals of new
20 (b) An auction
sale by an individual of merchandise , which
21 was assessed for payment of personal property tax in
the taxes
22 of this state of
Michigan or is of replacement stock of
23 merchandise inventory which
was assessed for payment of
24 personal property tax
taxes in the county in which where the
25 sale is to be had,
and to auction sales under a mortgage
26 foreclosure or under
the direction of a court or court officers
27 of such sales as may
be required by law proposed.
The owner of
House Bill No. 5295 (H-1) as amended December 2, 2004
1 the personal property specified in this section described
in
2 this subdivision may
furnish the person or persons conducting
3 the public auction with a statement that the proceeds of the sale
4 of the property set
forth listed in the statement has been
5 assessed as are for payment of personal property in
the taxes
6 of this state, of
Michigan or that it has been purchased as
7 replacement for
property that has been assessed, and
the
8 possession of such a that
statement shall absolve relieves
9 the person or persons
to whom it is given conducting the
10 auction from all any
liability under the provisions of this
11 act.
12 (c) An auction sale in a mortgage foreclosure or a sale made
13 pursuant to court order in a foreclosure proceeding.
14 (d) A regularly scheduled auction sale of motor vehicles held
15 at a permanent location and conducted by an auctioneer who has
16 complied with sections 26 to 35 of 1846 RS 21, MCL 446.26 to
17 446.35.
18 Sec. 10. (1) Any
person, firm or corporation found to be
19 in violation of A person who violates this act shall be is
20 guilty of a misdemeanor and
may be punished by a fine not to
21 exceed $100.00, or punishable by imprisonment in the county
22 jail not to exceed 90
days, or by both fine and imprisonment for
23 not more than [90] days or a fine of not more than $5,000.00, or
24 both.
25 (2) Whether or not a person has an adequate remedy at law, or
26 whether the attorney general or a prosecuting attorney takes
27 action under subsection (1), a person may bring an action to do
1 any of the following:
2 (a) Obtain a declaratory judgment that a practice is in
3 violation of this act.
4 (b) Enjoin by temporary or permanent injunction a person who
5 is engaging or is about to engage in a practice in violation of
6 this act.