STATE OF WISCONSIN
DEPARTMENT OF SAFETY AND PROFESSIONAL SERVICES
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IN THE MATTER OF RULEMAKING : PROPOSED ORDER OF THE
PROCEEDINGS BEFORE THE : DEPARTMENT OF SAFETY AND
DEPARTMENT OF SAFETY AND : PROFESSIONAL SERVICES
PROFESSIONAL SERVICES : ADOPTING RULES
: (CLEARINGHOUSE RULE )
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PROPOSED ORDER
An order of the Department of Safety and Professional Services to amend SPS 120.02 (1) (d), 121.02 (1), 124.02 (7), 125.08 (2) (Note) and (3) (Note), and 126.03 (2) (e) 5.; to repeal and recreate SPS 121.02 (2) (Note), 121.035 (Note), and 122.02 (Note); and to create SPS 120.02 (1m) relating to online auctions.
Analysis prepared by the Department of Safety and Professional Services.
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ANALYSIS
Statutes interpreted:
Statutory authority:
Explanation of agency authority:
Section 227.11 (2) (a), Stats. provides “[e]ach agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute . . .” Although as stated in section 480.04 (2), Stats. the Auctioneer Board does not have rule-making authority, pursuant section 480.04 (1), Stats., “the board shall advise the secretary on matters relating to auctioneers or auction companies or to the board.” Section 480.06, Stats. details the relationship between the Department as the rule-making authority and the board as the subject matter experts when promulgating rules. Related statute or rule:
None.
Plain language analysis:
The Department reviewed chapter SPS 120 to update the definition of “auction” in light of the increasing popularity of online auctions. Additionally, the Department conducted a comprehensive review of chapters SPS 120 to 126 to review necessary updates and remove obsolete or unnecessary references.
Summary of, and comparison with, existing or proposed federal regulation:
None
Comparison with rules in adjacent states:
Illinois:
Illinois requires any person who will conduct an auction or provide auction services to obtain a license as an auctioneer. The Auction License Act establishes definitions, licensing requirements, and general provisions of matters pertaining to auctions and auctioneers. In this Act, “auction” is defined as “the sale or lease of property, real or personal, by means of exchanges between an auctioneer and prospective purchasers or lessees, which consists of a series of invitations for offers made by the auctioneer and offers by prospective purchasers or lessees for the purpose of obtaining an acceptable offer for the sale or lease of the property, including the sale or lease of property via mail, telecommunications, or the Internet”. Additionally, Illinois has a definition for “internet listing service” as a “a website on the Internet, or other interactive computer service, that is designed to allow or advertise as a means of allowing users to offer personal property or services for sale or lease to a prospective buyer or lessee through an online bid submission process using that website or interactive computer service and that does not examine, set the price, prepare the description of the personal property or service to be offered, or in any way utilize the services of a natural person as an auctioneer.” [225 ILCS 407/5-10]
Iowa:
Iowa does not require auctioneers to be licensed statewide. However, some municipalities and counties may require permits. Iowa does not define nor regulate online auctions.
Michigan:
As of June 2014, Michigan does not require auctioneer licenses. Michigan does not define nor regulate online auctions.
Minnesota:
Minnesota Statutes authorizes each county to issue an auctioneer license. The requirements are specified in chapter 330 of the Minnesota Compiled Statutes. The Minnesota Department of Revenue under chapter 8130 defines “auction” as “is a method of selling tangible personal property in a public forum through open and competitive bidding conducted by an auctioneer licensed under Minnesota Statutes, chapter 330.” [MCL 8130.5800 Subpart 8]. Minnesota does not define nor regulate online auctions.
Summary of factual data and analytical methodologies:
