9.2 Unlicensed Practice Civil & Criminal Penalties

Unlicensed Practice: Civil Penalty, Injunction, Crime, and the Fee Bar

Section 20-15(6) makes unlicensed or post-expiration practice a discipline ground against someone in the license system. 225 ILCS 407/20-5, 20-10, 20-85, and 20-100 are what happens when the person was never licensed, is crying after the card died, or still wants to be paid. PSI likes to mix the four tracks. An item that asks for the civil cap is not asking for the criminal class, and an item that asks who can get a TRO is not asking whether the cousin can sue for a commission.

20-5(a)–(c): civil penalty after a hearing, then 60 days

20-5(a) reaches any person who practices, offers to practice, attempts to practice, or holds oneself out to practice as an auctioneer, an auction firm, or any other licensee under the Act without being licensed. In addition to any other penalty provided by law, that person shall pay a civil penalty to the Department in an amount not to exceed $10,000 for each offense as determined by the Department.

Three exam locks sit in that sentence:

1. Each offense, not a lifetime cap. Two unlicensed farm sales can be two $10,000-class offenses.
2. The penalty is civil and paid to the Department. It is not the 20-100 crime and it is not a 20-15.1 CE citation.
3. The Department assesses the civil penalty after a hearing held in accordance with the Act's discipline-hearing provisions. There is no "mail-in $10,000 ticket" that skips 20-43 process when the Department is using 20-5(a).

20-5(b) gives the Department authority and power to investigate any and all unlicensed activity under the Act. Investigation does not require a pending license file.

20-5(c) is the collection clock. The civil penalty shall be paid within 60 days after the effective date of the order imposing it. The order shall constitute a judgment and may be filed and execution had thereon in the same manner as from any court of record. Sixty days, then it behaves like a court judgment. Do not import the 30-day answer clock from 20-43 or the 30-day citation-dispute clock from 20-15.1.

The $10,000 figure matches the 20-15 discipline fine cap, but the targets differ. 20-15 fines a licensee, applicant, or hold-out in the licensing relationship. 20-5(a) fines the unlicensed actor. A person who cries a sale on an expired card can see both: 20-15(6) against the (now-former) license, and 20-5 against the unlicensed conduct. Teach them as stacked remedies, not substitutes.

20-5(d): public nuisance, irreparable harm, and the no-bond TRO

20-5(d) is the injunction statute, and it is written to be easy to grant. Conducting an auction or providing an auction service in Illinois without holding a valid and current license is declared:

• adverse to the public welfare;
• a public nuisance; and
• to cause irreparable harm to the public welfare.

Those three labels are statutory conclusions. The plaintiff does not have to put on a separate "show us the harm" economics case to get in the courthouse door.

Who may sue. The Secretary, the Attorney General, the State's Attorney of any county in the State, or any other person may maintain an action in the name of the People of the State of Illinois and apply for injunctive relief in any circuit court to enjoin the unlicensed practice. "Any other person" is the surprise. A competing licensed auctioneer, a seller who was burned, or a neighbor can file in the name of the People. The caption is public, not private-vengeance.

TRO without notice or bond. Upon filing a verified petition, the court, if satisfied by affidavit or otherwise that the person or entity has been engaged in the practice of auctioning without a valid and current license, may enter a temporary restraining order without notice or bond enjoining further practice. Only the showing of non-licensure, by affidavit or otherwise, is necessary for a temporary injunction. That is an unusually thin TRO showing. The item writer will offer "the plaintiff must post a bond and prove lost profits." The statute says the opposite: no notice, no bond, and non-licensure is enough.

After the TRO, a copy of the verified complaint is served and the case proceeds as other civil cases except as 20-5 modifies them. If unlawful practice is established, the court may enter a perpetual injunction. The court may apportion costs among the parties, including filing, service of process, witness fees and expenses, court reporter charges, and reasonable attorneys' fees. Violation of the injunction may be punished as contempt. These injunction proceedings are in addition to, and not in lieu of, all penalties and other remedies in the Act — including the 20-5 civil penalty and the 20-100 crime.

20-100: Class A misdemeanor, then Class 4 felony

225 ILCS 407/20-100 is one sentence. A person who is found to have violated any provision of this Act is guilty of a Class A misdemeanor for the first offense and a Class 4 felony for the second and any subsequent offense.

That is all the Act says about the crime. For the PSI auctioneer exam:

• First Act violation that is prosecuted as a crime: Class A misdemeanor.
• Second and every later: Class 4 felony.
• The Act does not itself recast jail-day counts or felony-fine dollar amounts. Those live in the Unified Code of Corrections if a court is sentencing. Do not pick an option that invents "up to 364 days" or a dollar felony fine from this Act. If the question asks what the Auction License Act provides, the answer is the class of offense.

20-100 is not limited to unlicensed practice. It applies to a person found to have violated any provision. An escrow conversion that is also 20-15(13) can be a crime under 20-100. Unlicensed crying is the pattern PSI uses most often, because it pairs cleanly with 20-5.

20-10: one act is a violation

225 ILCS 407/20-10 kills the "I only did it once" defense. The commission of a single act prohibited by the Act or by the rules, or a violation of a disciplinary order issued under the Act, constitutes a violation of the Act.

One unlicensed bid call. One sale bill. One converted escrow check. One ignored suspension order. Each is enough. 20-10 also feeds 20-15(29) (violating a Department order) and 20-100 (any provision). When an option says the Department must prove a "course of conduct" or "at least three auctions," 20-10 is the statute that says no.

20-85: no license, no paycheck from a court

225 ILCS 407/20-85 is the private-law trap. No action or counterclaim shall be maintained by any person in any court in this State with respect to any agreement, contract, or services for which a license is required by this Act, or to recover the agreed price or any compensation under such an agreement or for such services, without alleging and proving that the person had a valid license at the time of making such agreement or doing such work.

Read it as a pleading-and-proof bar:

• The plaintiff (or counterclaimant) must allege a valid license.
• The plaintiff must prove a valid license.
• The license must have been valid at the time of the agreement or the work, not merely by the time of trial.

An unlicensed cousin who cried a farm sale cannot sue the seller for a 10 percent commission. A licensee whose card expired on December 31 cannot recover for the January 2 sale on that expired status. A defendant sued by a seller can raise 20-85 against an unlicensed auctioneer's counterclaim for fees. 20-85 does not legalize the work; it just keeps the courthouse from collecting the fee.

Four tracks, four wrong answers

Work every unlicensed-practice item by naming the track:

Scenario. Dana, who has never held an Illinois auctioneer license, advertises and cries a Saturday equipment auction in McLean County. IDFPR can investigate (20-5(b)), hold a hearing, and assess a civil penalty not to exceed $10,000 for that offense, due in 60 days as a judgment (20-5(a), (c)). The Secretary, the Attorney General, the McLean County State's Attorney, or a licensed competitor suing in the name of the People can seek a TRO without notice or bond on an affidavit of non-licensure (20-5(d)). A first criminal prosecution under the Act is a Class A misdemeanor (20-100). One Saturday is enough (20-10). If Dana later sues the consignor for a commission, 20-85 requires alleging and proving a valid license at the time of the agreement or the work — which Dana cannot do.

Stack those answers. Do not let a well-written option about Class 4 felonies become your answer to a 60-day civil-penalty question.