HomeMy WebLinkAbout2006-116
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2006-116
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.D. 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;
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"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 Municipaljicence 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
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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 carry on 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 31st 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
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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 carry on 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;
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(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 Council or 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:
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(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 carry on 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.
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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 Council or
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.
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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 Council or 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.
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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.
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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.D. 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
29th day of May
2006
BY-LAW read a third time and finally passed this
29th day of May
2006
~~
John Mutton, Mayor
-,\
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SCHEDULE "A"
By-law 2006-
BUSINESS LICENCE FEES
AUCTIONEER (ANNUAL)
AUCTIONEER (SINGLE EVENT)
$75.00
$40.00