eBay Sellers Do NOT Need An Auctioneer's License!!!!

[BJGrolle]

Yes, please do! Wonderful news that they're acting so quickly!

All the publicity doesn't hurt, does it? I'm still reading new posts from today at the eBay boards where people who do not yet understand that the law is being changed are emailing their state reps.

I don't chime in to correct them for 2 reasons:

1. The more public outcry, the better.

2. I can't keep up with all the posting.

3. eBay pulled some of my initials posts from late last week and I got "moderated". Don't want to risk it again.
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Brenda’s Bookshelf

[hmh]

Brenda,
Thank you for your time and effect in this matter.Ive tried to reach Mr.Martin and Armbruster again today their Columbus offices must close early.thanks again,john

[Bobcat1804]

...and the news is not good. I have the document in Adobe Acrobat format, so I can't post it here, but the only relevant change in the amendment to the legislation is to exclude eBay sellers who sell their own merchandise. Anyone who sells other people's merchandise (i.e., eBay drop-off stores) will still be required to obtain the auctioneer license. The corrected bill was introduced yesterday by Sen. Mumper and is expected to move quickly and stand alone without additional amendments.

[BJGrolle]

You are right - that is only half the battle!

FWIW - and it may not be worth much, on Monday I sent another email to the PD reporter who covered the article that appeared on March 4th. During our conversation, he had wanted to know if I knew anyone who could look into the illegality of the states regulating interstate commerce - as he couldn't very well report that "the White House said so", understandably.

I emailed the info I found (which can also be found in the OTWA discussion).

I will repost here for your convenience:

First, a legal definition of "interstate commerce" from Law.com (paragraph bolding mine):

http://dictionary.law.com/default2.asp?typed=interstate+commerce&type=1

interstate commerce

n. commercial trade, business, movement of goods or money, or transportation from one state to another, regulated by the federal government according to powers spelled out in Article I of the Constitution. The federal government can also regulate commerce within a state when it may impact interstate movement of goods and services and may strike down state actions which are barriers to such movement under Chief Justice John Marshall's decision in Gibbons v. Ogden (1824). Theoretically commerce is regulated by the Interstate Commerce Commission (I.C.C.) under authority granted by the Interstate Commerce Act, first enacted by Congress in 1887. This authority has been diffused among various federal agencies, and the I.C.C. may soon be history.

Note the bolded part. This means that states cannot attempt to regulate intrastate commerce if doing so would prevent a seller from using the Internet to sell to the other 49 states. IOW, Ohio cannot say, well, so we can't prevent you from selling on eBay outside of Ohio without an auctioneer's license, but we can prevent you from selling on eBay to other Ohio residents without an auctioneer's license. Since eBay does not provide any means for sellers to block bidders on a statewide basis, that would be creating a barrier to interstate movement, which is addressed in the paragraph above.


Next, a link to the US Constitution:

http://www.house.gov/Constitution/Constitution.html

Here is the relevant part from Article I, (bolding mine):

Section. 8.

Clause 3: [url]To regulate Commerce [/url]with foreign Nations, and [url]among the several States[/url], and with the Indian Tribes;

This clause says the federal government has the power to regulate interstate commerce.

Here is another section from Article I that directly addresses interstate commerce and taxation:

Section. 9.

Clause 5: No Tax or Duty shall be laid on Articles exported from any State.

Here is a link to the Streamlined Sales Tax Project official site:

http://www.streamlinedsalestax.org/

Here is a link to Ohio's statements regarding their role in this project:

http://tax.ohio.gov/channels/business/streamline_ohio_law_changes.stm

Note the relevant portion of the paragraph from the Ohio site (bolding mine):

The ultimate goal of the SSTP is to encourage out-of-state vendors – primarily catalog and Internet companies – to collect the sales tax of Ohio and other states. Ohio’s state and local governments lose an estimated $600 million annually on untaxed sales by out-of-state vendors.

Here is another link from the Ohio site:

http://tax.ohio.gov/channels/business/ohio_sstp_ohio_request_to_amend_SSUTA.stm

The relevant portion (bolding mine):

Some Misconceptions regarding the Proposal

This proposal will require all the states to change their laws

The reality is that no state has to change any of its laws if this proposed amendment or a similar amendment is adopted. If states choose not to use this flexibility, there would be no negative impact upon them. [url]However, there could be a positive impact by it encouraging more small businesses to voluntarily collect other states’ taxes.[/url]

Yet, Article I, Section 9, Clause 5 of the US Constitution states:

No Tax or Duty shall be laid on Articles exported from any State.

This clause says the states cannot force online sellers to collect and remit any sales or use tax on goods being shipped out of the sellers' states! If I sell to any of the other 49 states, I am exporting the goods to those states, therefore I cannot legally collect and remit any taxes or dutys on the goods I am exporting.

I challenge that it also means the states cannot force their residents to voluntarily pay use tax on their mail order merchandise when filing their state income taxes annually. After all, if I buy something online from another state, that state is exporting the goods to me. Therefore, the inclusion of line 16 on IT 1040 and line 11 on IT 1040EZ on the Ohio State Income Tax forms should not even be there. Ohio is laying a tax on articles exported to me, which is unconstitutional.

The first paragraph of instructions on page 24 of the Ohio State Income Tax booklet make it clear that Ohio considers this mandatory, not voluntary.

I believe this constitutes enough evidence to substantiate the verbal statement that was made to me during my telephone conversation with the White House. I found no Amendments to the Constitution that contradict or amend the clauses quoted above.

As of this point, I have not been contacted by the reporter regarding this information. Perhaps he has decided not to pursue this matter. Or someone knows something that I don't.
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Brenda’s Bookshelf

[BJGrolle]

Here is a link to the new amendment sponsored by Senator Mumper:

http://www.legislature.state.oh.us/bills.cfm?ID=126_SB_99

I was not happy, namely that the top says this:

To amend sections 4707.01 and 4707.02 of the Revised Code to exclude persons who sell their own real or personal property by means of the Internet from having to obtain a license under the Auctioneers Law, to require persons to obtain auction firm licenses for taking and advertising personal property on consignment for sale by means of the Internet, and to declare an emergency.

And yet this section remains:

Sec. 4707.02. No person shall act as an auction firm, auctioneer, apprentice auctioneer, or special auctioneer within this state without a license issued by the department of agriculture. No auction shall be conducted in this state except by an auctioneer licensed by the department.

This section does not apply to:

(B) The owner of any real or personal property desiring to sell the property at auction, provided that the property was not acquired for the purpose of resale;

I just called Senator Mumper's office and spoke to Jack again. (He is the person who called me a week ago, assuring me they were going to change the law.) I told him that I have a problem with the fact that the opening paragraph and Sec. 4707.02 (B) contradict each other. I said that the phrase provided that the property was not acquired for the purpose of resale needs to be struck out.

He said that the Bill is not in its final form yet. They are getting imput from a variety of people on the wording of the bill, including the Agriculture Dept. and eBay representatives.

That's how it stands at this point on that issue.

I haven't forgotten about the other issues. And now Senator Mumper's office knows that I'm still keeping tabs on what they are doing.
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Brenda’s Bookshelf

[BJGrolle]

The latest news:

Cleveland Plain Dealer March 10, 2005
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Brenda’s Bookshelf

[Ranger]

Hi BJ:

I agree with you. This is all political mumbo jumbo and the bill the way it is written now does in fact contradict itself.

Why does it take people like you to tell OUR elected officials what we the people think should be done? Don't they have enough brains to sit done and think it all out before they pass legislature like this? I guess not, meaning next time they come up for election we should all think about who we are putting in office.

I also think that anyone who sells things for another such as the new upstart eBay stores that advertise for customers to sell their wares should be licensed. Same for the many Malls that I frequent who sell items for their booth owners.

I owned several stores in my lifetime and always I was licensed by the City or State.. That licensing also included a "COO" (Certificate of Occupancy) That was not in Ohio though.
What I have noticed since I moved to Ohio is that people operate businesses anywhere they want, no matter what the zoning is, and lots of times with no license.

Now I'm not saying the State, County, Town or City should crack down on these people, because apparently that is what has been going on here forever. BUT, I wouldn't want a Nightclub opening in the basement of the house down the road from me..

What the future holds for eBayers is beyond my imagination.
I think eBay has peaked and from what I can see, many people are looking for other options. I also know many people over the years that have quit their jobs are now back in the work force because eBay did not work out for them. This imo is because they were not very business oriented and did not know how to make the adjustments needed to put the bucks into their coffers.

Yes eBay was and still is a good idea for those who want or wanted to do business in their PJ's but now with all these fees that eBay charges, just for breathing, it makes it necessary to find other options.

eBay will never back any individuals like you or me because all eBay wants is money. At this point the "Top Guns" are all flush with money so imo I think they could care less what the future holds for eBay or its sellers..

[Ranger]

I also want to thank you for taking of your time to do all this.

[billyburke]

Dear BJ:

Thank you for all of your diligent efforts to make the public and media aware of the situation.

You have brought this issue to the attention of the National Auctioneers Association and State Auctioneers Associations.

They will take action and have members in every Congressional district in the Country.

It is the position of professional auctioneers that if you are performing the services of an auctioneer:

As an Ebay Drop Off Store or local auction barn.

As an Ebay Trading assistant or an auctioneer who sells items on consignment for private parties.

Then you are an auctioneer and should be regulated as such.

What is your answer to all of the people who were invloved with Door to Door Auctions?

Is it your opinion that if I advertise hamburgers on Ebay or another Internet website that I am not subject to health dept regulations in the service of preparation and delivery of the goods?

I support the right of any person to sell any item they personally own in any forum, venue, auction or format they choose without any government regulation.

It sounds like this is turning into a

"...we are acting as auctioneers by taking peoples property and selling it for a fee, but since we are not calling bids in the traditional sense we do not have to abide by the law..."

And if enough people yell loud enough the government will back down.

The bottom line is:

If you look like an auctioneer

Act like an auctioneer

Perform the services of an auctioneer

Take the property of others, offer it to others, set the bids, minimum or reserves, collect funds from buyers, deliver goods owned by others to people who have paid you, then deliver funds to the owner minus a fee...

Then you are an auctioneer...

Drop off stores and Trading Assistants are auctioneers.

Auctioneers were regulated when the consitution was written.

You sound very anti-consumer protection and that is what the regulation is about consumer protections in the handling of monies belonging to others.

What do you want from all of this?

Regards,
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William F. Burke, CAI - AARE Auctioneer

2,000 years of Auctioneer traditions combined with 21st Century Technology

[BJGrolle]

William,

Please reread all of the posts I have made regarding this subject.

I certainly am not anti-consumer protection.

[BJGrolle]

Hi Ranger,

Part of the problem is that eBay doesn't fit any traditional definitions. Is it an auction house? No, they claim not. Most often, they are compared to an online classified ad - yet that is not accurate either.

I could have kept quiet about the matter and simply gone to a total fixed priced format - which would not have fallen under the jurisdiction of SB 209 - and let everyone else worry about what they were going to do. After all, I don't even need to do this.

But what about the other people? The retired people trying to supplement their Social Security? The parents who are using eBay as a second income, so they can spend more time at home with the kids? The people who need their paychecks for all the necessities, and eBay gives them that little extra - maybe to fund their retirement a little bit. And on and on...

Someone had to speak up for them.

eBay and the rest of the world are changing too fast for any legislation to keep up with it all IMO. I do understand the need to try though. It has to be done in the right way, which means considering all the variables.
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Brenda’s Bookshelf

[BJGrolle]

Here's an interesting piece of information, direct from Senator Eric Fingerhut, dated March 4, 2005:

http://www.senatorfingerhut.com/site/pp.asp?c=bgKILTOzEoH&b=404851

Note this paragraph (bolding mine):

Case closed? Not quite. I do not believe that the sponsor of the bill, Senator Larry Mumper (R-26) intended to regulate eBay sellers. The state does, for good reason, regulate traditional auctioneers, who operate principally in the agricultural field (auctioning livestock, for example). Unscrupulous auctioneers can wreak havoc on the agricultural economy of the state, which is why this bill was heard in the Agriculture Committee. Because some of these auctioneers have been moving their business online, the state wanted to extend the existing regulations to cover their online activities. That is the way it was presented to us, and no one --- including me (a regular eBayer) --- caught the fact that the language was worded so broadly that it could be read to include auctioneers like eBay sellers and drop-off centers.

And here is Senator Eric Fingerhut's update dated today:

http://www.senatorfingerhut.com/site/pp.asp?c=bgKILTOzEoH&b=327285
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Brenda’s Bookshelf

[hmh]

Brenda,
Thank you for your time and effort again might see you at a sell sometime.Im going to still keep trying getting ahold of the state reps.Mr.Martin called while I was at work today.
Brenda you are right about e-bay being a different type venue if this law had passed why couldn't I not accept Ohio bids only out of state bids.I have my vendors license and i pay my sale taxes.I dont see how a state can make laws dealing with interstate commerce.
We are not auctioneers as I said before if i take an item to the auctioneer they are the auctioneer.(Ebay)All i do is put the information in place.All we can do now see want the state comes up with.They need to contact some e-bay salers.thanks Brenda,john

[BJGrolle]

Hi John,

I wish they wouldn't cluster the sales together so! I was at one yesterday, and there are 3 more this weekend. Oh, well, it's feast or famine.

The states can't make laws dealing with interstate commerce, and that is a big point that certain interested parties refuse to acknowledge.

Anyway, I was very impressed after reading Eric Fingerhut's March 4th posting. You might recall that he also made a statement that appeared in the March 4th PD print newspaper.

After reading his online entry today, I sent him an email, detailing the particulars and the proof I found via the Internet regarding the illegality of any state law requiring licensing from eBay sellers, as that interferes with interstate commerce. I told him in my email that I had also emailed the same to the PD reporter on March 7th.

I told Eric Fingerhut that regulation of the consignment sellers - if any - needs to be dealt with at the federal govt. level, perhaps with input from the various states.

I read a post on the eBay board. The poster said s/he called the Dept. of Agriculture. From what s/he said, only corporations are going to be required to be licensed and the Dept. of Agriculture is going to release new licensing requirements, but they are holding off until they see what the new law says.

Sounds like many changes are going to be taking place. Hopefully, they will be for the better.
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Brenda’s Bookshelf

[mbright1]

More than 10 years after online auctions take foot on the internet the NAA decides it has something to say. Hmmm, what changed to make them finally step up and speak out against this new phenomena?

It wouldn't be because they just recently started up their own online auction service for their members now would it?
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