Loading...
HomeMy WebLinkAboutCLD-013-06 ~~w:-!lJgton REPORT CLERKS DEPARTMENT PUBLIC MEETING Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Monday, May 8, 2006 Report #: CLD-013-06 File #: By-law #: (:-,90 -9 n "-/- 0 6 '. Subject: PROPOSED AUCTIONEER'S LICENCING BY-LAW RECOMMENDATIONS: It is respectfully recommended to Council:: 1 . THAT Report CLD-O 13-06 be received; 2. THAT, provided there are no significant issues raised at the public meeting, the By-law attached to Report CLD-013-06 be forwarded to Council; and, 3. THAT the interested parties listed in this report and any delegations be advised of Council's decision. O JQ.-J/n'i7 Reviewed by. ~ _'-\J ~ Franklin Wu, Chief Administrative Officer PLB/LC CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 REPORT NO.: CLD-013-06 PAGE 2 1.0 STATUTORY REQUIREMENT FOR MEETING Section 150 of the Municipal Act, 2001 requires municipalities to hold at least one public meeting prior to the passing of any licencing by-law. The meeting is to allow any individual with concerns or comments on the proposed provisions of the by-law to have their chance to be heard. Notices were placed in the local media over the past month advising the public of the impending meeting. 2.0 BACKGROUND Auctioneers have been traditionally relied upon by the public to assist in the sale of goods and the disposition of property. The potential for monetary harm to the public from an unlicensed, unregulated auction industry is substantial. The licencing of these companies establishes a uniform set of requirements for the industry within Clarington and protects the consumer from possible fraud from an unscrupulous operator. The current Auctioneer's By-law was passed in July 1974 with only minor amendments over the years. The Municipal Act, 2001 now requires that any licencing by-law will expire five years after it was enacted or within five years of the passage of the new Act. This requires the municipality to continually review and update its by-laws. 3.0 STAKEHOLDERS NOTICE In the first week of April of this year Staff placed the advertisement notice for the public meeting in the local media. Since that time there have been two enquiries as to the contents and intent of the by-law. A draft copy of the by-law has been available through the Clerk's Department since April 24th. 4.0 STAFF COMMENTS The proposed by-law has expanded on some of the existing licence requirements and recognizes the reality of the current marketplace. The Municipality will not limit the number of auctioneers permitted to operate. The proposed by-law does establish a licence fee for those companies that wish to operate for a one time sale only. The price for this is high enough to encourage the purchase of an annual licence but if the company is adamant that it wishes to only sell on one occasion, the facility exists to allow this to take place. The by-law has been expanded in the areas of recordkeeping and recording of items sold. Since it is not always apparent to the auctioneer that an item was stolen or fraudulently obtained, these requirements will assist the police in the tracking and recovery of these items thus protecting both the auctioneer and the buying public. REPORT NO.: CLD-013-06 PAGE 3 5.0 LICENCING FEES When originally passed the fee for a licence was $50.00. This was increased to $60.00 in 1996. It is now proposed that the licence fee be increased to $75 for an annual licence and $40.00 for a licence for a one time event. The Annual licence is valid for the calendar year with no provision to pro-rate late year applicants. The Municipal Act 2001 sets fines for non-compliance with the by-law. Convictions carry a maximum penalty of $25,000 for an individual and $50,000 for a corporation. Enforcement has traditionally been done by both the Municipal Law Enforcement Officers and the Regional Police. 6.0 CONCLUSIONS The purpose of this report is to satisfy the requirements of the Public Meeting under the Municipal Act 2001. After hearing the comments received, it is respectfully recommended that, provided there are no significant issues raised at the public meeting, the By-law attached to Report CLD-013-06 be forwarded to Council for approval. Attachments: Attachment 1 proposed by-law List of interested parties to be advised of Council's decision: Gary Hill Auctions Donald A. Stephenson Arnot Wotten Sr. John Berry Frank Stapleton John Sharpe Michael MacGregor Carl Hickman Scott Hall Terrance Jacobs THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY.LAW NO. Being a by-law to license, regulate and govern Auctioneers in the Municipality of Clarington and to repeal By-law 74-54 of the former Town of Newcastle and all of its amendments WHEREAS it is deemed expedient to exercise the powers conferred on Council by the Municipal Act, 2001, S.O. 2001, c. 25; AND WHEREAS Council has determined that requiring auctioneers to meet certain record keeping, accounting and financial requirements with respect to proceeds of auctions protects consumers who have left goods to be auctioned; AND WHEREAS Council has determined that requiring certain records to be kept by auctioneers will assist the police in locating items that may have been stolen and thereby protect consumers from purchasing stolen items; AND WHEREAS Council has determined that licensing auctioneers protects consumers as there is a record of licence holders and the ability to hold them accountable where the business is not conducted in accordance with the law or with honesty and integrity; AND WHEREAS Council has determined that the ability to add conditions to, suspend, revoke or refuse licences encourages licensees to comply with the by- law requirements; NOW THEREFORE the Council of the Corporation of the Municipality of Clarington enacts as follows: DEFINITIONS "auction" means any public sale in which item(s) are sold or offered for sale to the highest bidder whether in person or by newspaper, television, radio, or other media. "auctioneer" means a person who sells or puts up for sale item(s) by auction and shall specifically include a person placing any item(s) for sale to the highest bidder in any local media. "Clerk" means Municipal Clerk of the Corporation of the Municipality of Clarington or the Deputy Clerk acting in place of the Clerk; "Committee" means the General Purpose and Administration Committee of the Council of the Corporation of the Municipality of Clarington; "Council" means the Council of the Corporation of the Municipality of Clarington; 2 "Item(s)" shall include any goods, wares, merchandise, services, effects, or property; "Municipality" shall mean the Corporation of the Municipality of Clarington; 1.0 GENERAL PROVISIONS 1.1 The fees for a licence under this By-law shall be as set out in Schedule "A" attached hereto and forming part of this By-law. 1.2 No person shall act as an auctioneer without having made application and having received a licence issued in the name of Council by the Clerk or his/her delegate. 1.3 No person shall permit any other person to place an advertisement in any local newspaper to auction any item(s) within the Municipality unless the person placing the advertisement is licenced under this By-law. 1.4 No person shall permit or assist a person to act as an auctioneer within the Municipality without a Municipal licence having been issued to that person prior to the commencement of the auction. 1.5 No person shall broadcast an auction from the Municipality unless the auctioneer acting therein has a licence issued under this By-law. 1.6 Every person who has received a licence shall allow any Police officer, and any other person duly authorized, including any Municipal Law Enforcement Officer to inspect at any reasonable time: (a) the premises where an auction is being held; and (b) the books kept in accordance with this By-law. 1.7 Every auctioneer shall keep good order in his/her auction room and offices and shall keep proper books of account of the business transacted by him/her as auctioneer, which books shall give the names and addresses of persons depositing goods with him/her for sale, the description of the goods, the price for which same may be sold and the names and addresses of persons purchasing such goods or any portion thereof. 1.8 No auctioneer shall conduct or permit to be carried on in his/her premises any mock auction or shall knowingly or willfully make, or permit to be 3 made, any misrepresentation as to the quality or value of the goods, wares, merchandise or effects which may be offered for sale by him/her. 1.9 Every auctioneer's licence shall be automatically suspended upon the holder or one of the holders thereof making an assignment under any statute respecting bankruptcy or any other assignment for the general benefit of his/her creditors or upon his/her being declared or adjudged a bankrupt, or upon his/her taking advantage of any other statute for the benefit of insolvent debtors and he/she shall not again carryon the business of an auctioneer without the express consent of Council. 1.10 Nothing in this By-law shall apply to a sheriff or bailiff offering for sale goods or chattels seized under an execution or distrained for rent. 1.11 No person shall act as an auctioneer while a licence issued under this By- law is suspended or revoked by Council. 1.12 No person shall violate any condition that Council places on a licence issued under this By-law. 1.13 No licence shall be required for an auctioneer or auction conducted by or on behalf of a religious or charitable organization. 2.0 LICENCING PROCEDURE 2.1. Upon receipt of a complete licence application the Clerk shall either issue or renew a licence hereunder or shall refer the matter to Councilor a Committee of Council where appropriate under the provisions of this By- law or any other by-law of Council. 2.2 Unless otherwise specified in this by-law, every licence issued or renewed pursuant to this By-law shall be valid for a period of one calendar year and shall expire on December 31 5t of each year. The licence fee shall not be pro-rated or reduced in any way regardless of when the initial licence is issued. 2.2.1 Notwithstanding Section 2.2, a licence may be granted for a single individual auction event. Such licence shall be valid for the one auction event only. 2.2.2 An applicant who has been licenced pursuant to section 2.2.1 may apply for any number of single event auction licences. The procedure for each 4 application shall be the same as for an annual licence and the fees to be paid shall be as set out in Schedule A of this By-law. 2.3 The Clerk shall not process an application where that application is incomplete. An application will be deemed incomplete where: (a) required information has not been provided on the application form; (b) information or documentation required by the Clerk as part of the application process has not been provided; (c) the prescribed licence fee is unpaid; or (d) the Clerk has received an unsatisfactory report regarding an investigation carried out pursuant to this By-law or any other by-law of the Municipality and the conditions causing the report to be unsatisfactory have not been remedied. 2.4 Where the Clerk receives an incomplete application, the Clerk shall, where an address or other contact information has been provided, notify the applicant that the application is incomplete and of the steps required to complete the application. 2.5 Where the Clerk decides an application is incomplete, the applicant shall have the right to appeal that decision to Council or a Committee of Council. 2.6 If the Clerk is unable to determine whether an application is incomplete, he/she may refer the matter to Councilor a Committee of Council for consideration. 2.7 Where: (a) the applicant or licensee does not meet the requirements of this By- law or any other applicable law or by-law; (b) there are reasonable grounds for belief that an application or other document provided to the Clerk by or on behalf of an applicant or licensee contains a false statement or provides false information; (c) the past or present conduct of any person, including the officers, directors, employees or agents of a corporation, affords reasonable cause to believe that the person will not carryon or engage in the business in accordance with the law or with honesty and integrity; (d) without limiting the generality of Section 2.7(c), any person, including the officers, directors, employees or agents of a corporation, has contravened this By-law or any other by-law or federal or provincial statute or regulation while engaged in or conducting the business; 5 (e) any special conditions placed on a former or current licence of the applicant or licensee under this By-law have not been met; or (f) the provisions of this By-law provide grounds not to issue or renew in the circumstances; (g) the applicant is in breach of this or some other Municipal by-law or law of Ontario or Canada; (h) the applicant has been convicted of an offence pursuant to a similar by-law in another municipality; or (i) the applicant has a prior Criminal record, for which he has not received a Pardon, the Clerk shall deny the application. 2.8 Notwithstanding section 2.7(i), if more than seven years have elapsed since the final disposition date of the Criminal Record, and it is, in the opinion of the Clerk, of a minor nature, the Clerk may approve the application. 2.9 An applicant who has been denied a licence by the Clerk pursuant to Section 2.7 may request that his application be heard by Committee or Council, which may, in its discretion, issue the licence in question. Upon request, the Clerk shall refer the matter to the Councilor to Committee. 2.10 Councilor Committee shall consider the matter and the rules in Section 3 shall apply with necessary modifications. 2.11 In considering an application under Section 2.10, Councilor Committee may impose any conditions it sees fit as a requirement of obtaining, continuing to hold or renewing a licence, including any condition which would otherwise contravene any other provisions of the By-law. 2.12 When any matter has been referred or appealed to Councilor a Committee of Council, the applicant or licensee shall be given reasonable notice of the time and place of the hearing and shall be invited to make submissions. 2.13 When any matter has been referred or appealed to Councilor a Committee of Council, after due consideration of the application or licence and after Councilor a Committee of Council has heard such representations as the applicant or licensee and staff may care to make, Council may direct that the licence be issued or renewed, or may refuse, suspend, revoke or add conditions to a licence where: 6 (a) the applicant or licensee does not meet the requirements of this By- law or any other applicable law or by-law; (b) information or documentation required by the Clerk as part of the application process has not been provided; (c) the application is incomplete or the prescribed licence fee is unpaid; (d) the Clerk receives an unfavourable report regarding an investigation carried out pursuant to Section 2.7 of this By-law; (e) there are reasonable grounds for belief that an application or other document provided to the Clerk by or on behalf of an applicant or licensee contains a false statement or provides false information; (f) the past or present conduct of any person, including the officers, directors, employees or agents of a corporation, affords reasonable cause to believe that the person will not carryon or engage in the business in accordance with the law or with honesty and integrity; (g) without limiting the generality of Section 2.13(f), any person, including the officers, directors, employees or agents of a corporation, has contravened this By-law or any other by-law or federal or provincial statute or regulation while engaged in or conducting the business; (h) any special conditions placed on a former or current licence of the applicant or licensee under this By-law have not been met; (i) the provisions of this By-law provide grounds not to issue or renew in the circumstances; or U) the applicant or licensee has consented to the refusal, suspension, revocation or adding of conditions to the licence. 2.14 Where a licensee is convicted of an offence under any federal or provincial Act, any regulation made thereunder, or any by-law of the Municipality in relation to or during the carrying on of the trade, calling, business or occupation licensed hereunder, the licence may be suspended forthwith by Council until such time as the matter can be heard and finally determined by Council. 3.0 REVOCATION AND SUSPENSION 3.1 Councilor Committee may revoke, suspend, impose any conditions upon, or refuse to issue or renew any licence to any person under this By-law. 3.2 The Clerk is authorized to suspend any license issued to any person under this by-law pending a review by Councilor Committee. 7 3.3 Councilor Committee may, in exercising the discretion mentioned in Section 2.10, consider any matter raised under paragraph 2.7 or any other matter that relates to the general welfare, health or safety of the public. 3.4 Hearing by Councilor Committee: a) The applicant will be advised of the date, place and time fixed for such hearing at least five days prior to the hearing. b) At such hearing, Councilor Committee shall receive a written report from the Clerk and from such other persons, officers or agencies who may be involved in the matter being considered by Councilor Committee. c) Councilor Committee shall not make a decision under Section 13.1 without first affording the person or applicant the opportunity to be heard before the Councilor Committee. d) After such opportunity to be heard is afforded the person or applicant, Councilor Committee may make any decision in respect of which the hearing was held or the opportunity for hearing afforded without holding a further hearing or affording further opportunity for a hearing in such matter. e) Where the Councilor Committee conducts a hearing in respect of any matter in this subsection, the rules set out in The Statutory Powers Procedure Act shall apply to Councilor Committee in the exercise of its power of decision in respect to such matter. 3.5 Where Councilor Committee has exercised it authority under section 3.1, the decision of Councilor Committee shall be binding only on the licence as issued for the Municipality and shall not be deemed to affect a licence as issued by another municipality. 4.0 FINANCIAL 4.1 The books maintained by the auctioneer shall be in sufficient detail to show: (a) all money received in trust for clients; (b) all disbursements out of money held in trust; (c) the unexpended balance of money held in trust for each person for whom such money is held; and (d) all other money received and disbursed in connection with his/her business. 8 4.2 Every auctioneer shall pay the proceeds of any goods sold by him/her on behalf of a client into an account designated as a trust account at a chartered bank, trust company or a credit union. 4.3 Section 4.2 shall not apply to: (a) money which is forthwith paid over to the client; (b) money which is paid into a separate account opened or to be opened in the name of the client or some person named by that client as the duly authorized agent of that client; (c) money which, with the client's authority, is paid to a third party; or (d) the auctioneer's reasonable fees and disbursements. 4.4 The auctioneer shall not pay any of his/her own monies into the trust account provided that where he/she receives money or security for money representing in part money belonging to a client and in part money belonging to him/her and it is not practical to split the money, he/she shall pay the whole of such money into the trust account and thereafter withdraw that part of the money therefrom that belongs to him/her. 4.5 At all times, the auctioneer shall maintain sufficient balances on deposit in the trust account or accounts to meet all his/her obligations with respect to funds held in trust for clients. 4.6 No money shall be drawn from the trust account other than money required for payment to or on behalf of a client or money drawn to be paid to the auctioneer in respect of a liability of the client to the auctioneer, provided that money so drawn shall not in any case exceed the total amount of the money held for the client. 4.7 All the records and books as referred to in this By-law shall be made available for inspection upon request of a police officer or Municipal Law Enforcement Officer. Failure to provide the records and books as required by this section shall constitute an offence. 5.0 ENFORCEMENT 5.1 Every person other than a corporation who contravenes any provision of this By-law and every director or officer of a corporation who concurs in such contravention by the corporation is guilty of an offence and is liable, upon conviction, to a fine as set out in the Municipal Act, 2001, S.O. 2001, c.25. 9 5.2 Every corporation that contravenes any provision of this By-law is guilty of an offence and is liable, upon conviction, to a fine as set out in the Municipal Act, 2001, S.O. 2001, c. 25. 6.0 VALIDITY 6.1 It is hereby declared that each and every of the foregoing Sections of this By-law is severable and that, if any provisions of this By-law should for any reason be declared invalid by any court, it is the intention and desire of Council that each and every of the then remaining provisions hereof shall remain in full force and effect. 7.0 REPEAL. ENACTMENT 7.1 By-law 74-54 of the former Town of Newcastle and its amendments are hereby repealed. 7.2 This By-law comes into force and effect on the date of its passage By-law read a first and second time this day of May, 2006. By-law read a third time and finally passed this day of May, 2006. John Mutton, Mayor C. Anne Greentree, Deputy Clerk 10 SCHEDULE "A" By-law 2006- BUSINESS LICENCE FEES AUCTIONEER (ANNUAL) $75.00 AUCTIONEER (SINGLE EVENT) $40.00