Does a company running a time-limited eBay-style online auction of property located in a Minnesota county have to hold a Minnesota auctioneer's license?

Plain-English summary

Olmsted County's Vital Records Division received an inquiry from an out-of-state auction company that wanted to know whether a county auctioneer license was required before it could run an online auction of property physically located in the county. Senior Assistant Olmsted County Attorney Thomas M. Canan asked the Attorney General to clarify whether eBay-style time-limited internet auctions fall within "the business of an auctioneer" under Minn. Stat. ch. 330.

The AG answered no, on two independent grounds.

First, Minn. Stat. § 330.01, subd. 1(b) restricts auctioneer licensure to natural persons. The statute is explicit: "No copartnership, association or corporation may be licensed as an auctioneer." A corporate entity like the inquiring company therefore cannot be licensed even if it wanted to be.

Second, chapter 330 does not define the "business of an auctioneer," but prior AG opinions tracing back to 1920 consistently understood the activity as publicly crying out prices and soliciting competitive bids until the highest bidder is found. Time-limited online auctions, where the highest bid at the expiration of a preset window wins, do not involve any of the traditional auctioneer activities, and an eBay "Buy it Now" feature is a fixed-price sale rather than an auction at all. The AG found persuasive opinions from the Attorneys General of North Dakota (2005), Tennessee (2006), and Alabama (2008), all of which reached the same conclusion under similar state auctioneer statutes. The opinion footnoted that many other states had expressly excluded online auctions from licensing by statute, citing the Arkansas, Illinois, Louisiana, North Dakota, Ohio, Pennsylvania, and Tennessee codes.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context: what the AG concluded

The AG's analysis turned on two distinct features of Minnesota's auctioneer law as it stood in 2014.

The first was the natural-person limitation in § 330.01, subd. 1(b). That language, in some form, had been in Minnesota law since territorial days. A corporate entity could not be licensed under the chapter, full stop. The opinion's footnote did not soften this; it simply cited the statute. Anyone wanting to operate an online auction company as a corporation could not have complied with the licensing requirement even if it had applied.

The second was the meaning of "the business of an auctioneer." The chapter never defined the phrase. The AG looked to historical context. Op. Atty. Gen. 16-C (Mar. 26, 1920) referred to "a license to cry sales as an auctioneer," and Op. Atty. Gen. 16-C (June 22, 1951) discussed the auctioneer's authority to "cry sales." Both prior opinions read chapter 330 as targeting the traditional public-outcry auction format. Time-limited online auctions, where bids are submitted asynchronously over hours or days and the highest at the deadline wins, do not match that model. The "Buy it Now" feature, where a buyer pays a fixed price, is not an auction in any sense.

The AG also surveyed peer-state opinions. The North Dakota AG in 2005 had concluded that eBay was a "marketplace for individual eBay members to provide items for sale," not a seller offering property at public auction, and that the sales process did not match the traditional definition of an auction closing by highest bid. The Tennessee AG reached the same conclusion in 2006, and the Alabama AG in 2008. Several state legislatures had since written explicit online-auction exclusions into their statutes; the AG cited Arkansas, Illinois, Louisiana, North Dakota, Ohio, Pennsylvania, and Tennessee.

The result: an out-of-state auction company running a time-limited online auction of Minnesota property did not need to obtain a county auctioneer license under Minn. Stat. ch. 330.

Common questions

Q: What about a person who runs a traditional in-person auction in a Minnesota county? Does this opinion change that?
A: No. The opinion was narrowly about online time-limited auctions. The AG explicitly preserved the historical understanding that "crying sales" at a public-outcry auction is auctioneering activity within chapter 330. A natural person running a traditional auction in 2014 still needed a license.

Q: Was this opinion based on chapter 330 as it existed in 2014, or could the statute have changed since?
A: The opinion expressly cites the 2012 version of Minn. Stat. §§ 330.01-330.13. Anyone applying the analysis today must check whether the legislature has amended the chapter, including whether Minnesota has since adopted an explicit online-auction provision like the peer states the AG cited.

Q: Does the natural-person rule mean an estate sale company can't operate as an LLC?
A: Under the 2014 reading of § 330.01, subd. 1(b), only the licensed natural-person auctioneer could be licensed. A corporate entity could not be licensed itself. The opinion does not address how an estate company structured around a licensed individual auctioneer would operate, but that has historically been the workaround in states with similar statutes.

Q: What about hybrid auctions where bidders attend in person and online bidding runs simultaneously?
A: The opinion does not address simulcast or hybrid formats. Its facts described a pure online time-limited auction. A simulcast that includes a traditional in-person outcry component would likely fall within chapter 330's traditional definition of auctioneering activity for the in-person portion.

Q: How much weight does an AG opinion like this carry in court?
A: AG opinions in Minnesota are advisory. They do not have the force of law. A Minnesota court is not bound by them, though courts often find AG reasoning persuasive when statutory text is ambiguous and the AG has surveyed the relevant authorities.

Background and statutory framework

Minnesota's auctioneer licensing scheme is codified in Minn. Stat. ch. 330. As of the 2012 version cited in the opinion, the chapter required that auctioneers be licensed by the county in which they conducted sales and limited licensure to natural persons. The chapter never defined "auction" or "business of an auctioneer," so the practical scope of the licensing requirement turned on prior AG opinions and customary understanding.

The 1920 and 1951 AG opinions cited in this 2014 opinion treated auctioneering as the public outcry of prices and the solicitation of competitive bids. The 2014 opinion extended that reading by holding that an online time-limited auction lacks the defining features (public outcry, real-time competitive bidding closing by highest bid) and therefore is not within the chapter.

The opinion is signed by Assistant Attorney General Fiona B. Ruthven on behalf of AG Lori Swanson.

Citations and references

Statutes:
- Minn. Stat. §§ 330.01-330.13 (2012)
- Minn. Stat. § 330.01, subd. 1(a)-(b) (2012)
- Ark. Code Ann. § 17-17-104(a)(5)
- 225 Ill. Comp. Stat. 407/10-1(d)
- La. Rev. Stat. Ann. § 37:3103(4)
- N.D. Cent. Code § 51-05.1-04(1), (5)
- Ohio Rev. Code Ann. § 4707.02(B)(8)
- 63 Pa. Cons. Stat. § 734.2
- Tenn. Code Ann. § 62-19-103(9)

Other AG opinions referenced:
- Op. Atty. Gen. 16-B, Apr. 10, 1940
- Op. Atty. Gen. 16-C, Mar. 26, 1920
- Op. Atty. Gen. 16-C, June 22, 1951
- N.D. Op. Atty. Gen. 2005-L-40, Nov. 4, 2005
- Tenn. Op. Atty. Gen. 06-053, Mar. 27, 2006
- Ala. Op. Atty. Gen. 2008-109, July 16, 2008

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/16b-20141017.pdf

Original opinion text

AUCTIONEERS: LICENSES: COUNTIES: Time-limited online auction sales are not subject to auctioneer-licensing requirements. Minn. Stat. §§ 330.01-330.13 (2012).

16-b
October 17, 2014

Thomas M. Canan
Sr. Assistant Olmsted County Attorney
151 4th Street SE
Rochester, MN 55904-3710

Re: Application of Auctioneer Licensing Laws to Online Auctions

Dear Mr. Canan:

I thank you for your correspondence received on September 4, 2014 and speaking with me on October 7, 2014. You ask whether Minnesota law requires the issuance of an auctioneer's license by a county for the sale of property physically located within that county through an online auction website such as eBay.

BACKGROUND

You state that the Vital Records Division of the Olmsted County Property Records and Licensing Department recently had an inquiry from an out-of-state auction company asking whether it must obtain an auctioneer's license before conducting an online auction of property located in the county. You ask whether sales on eBay or similar internet auction sites that conduct online time-limited auctions constitute "the business of an auctioneer," such that Minnesota's auctioneer-licensing requirement applies.

In an online time-limited auction, the sale is made to the bidder who submits the highest bid before the expiration of the specified time limit. The time limit for such auctions on eBay can range from one to ten days. In addition, eBay offers a "Buy it Now" feature that allows a purchaser to pay a fixed price in lieu of bidding on an item.

LAW AND ANALYSIS

Minnesota's auctioneer-licensing laws are presently codified in Minnesota Statutes Chapter 330, but they have their origin in the territorial laws that existed prior to statehood. From its earliest days through the present, Minnesota law has consistently provided that only natural persons may be licensed auctioneers. See Minn. Stat. § 330.01, subd. 1(b) (2012) ("No copartnership, association or corporation may be licensed as an auctioneer."); see also Op. Atty. Gen. 16-B Apr. 10, 1940 (enclosed). Accordingly, corporate entities, like the out-of-state company referenced in your letter, are not subject to Minnesota's auctioneer-licensing requirements.

Chapter 330 does not define what specifically constitutes "the business of an auctioneer" that is subject to licensure. Prior opinions from this Office demonstrate an understanding that Minnesota's auctioneer-licensing requirements apply to the traditional activities of an auctioneer, e.g., publicly crying out prices and soliciting competitive bids until the highest bidder is found. See Op. Atty. Gen. 16-C, Mar. 26, 1920 (referring to "a license to cry sales as an auctioneer") (enclosed); Op. Atty. Gen 16-C, June 22, 1951 (discussing auctioneer's authority to "cry sales") (enclosed). These opinions involve interpretation of statutory language that includes the "business of an auctioneer" language that remains in Minn. Stat. § 330.01, subd. 1(a) (2012) today. Time-limited online auctions are conducted in a very different manner than conventional auctions; they do not involve crying sales and the bidding process concludes upon expiration of a predetermined time limit.

Other state Attorneys General who have examined similar auctioneering-licensing requirements have concluded that time-limited sales conducted through online auction sites such as eBay do not require an auctioneer license. For example, the North Dakota Attorney General issued an opinion concluding that eBay did not fit within that state's definition of "auctioneer" as "a person, who for a compensation or valuable consideration, sells or offers for sale either real or personal property at public auction as a whole or partial vocation." See N.D. Op. Atty. Gen. 2005-L-40, Nov. 4, 2005 (enclosed); N.D. Code § 51-05.1-04(1). The North Dakota Attorney General concluded that eBay does not sell or offer to sell property, but rather constitutes a marketplace for individual eBay members to provide items for sale. In addition, the North Dakota Attorney General noted that the eBay sales process does not fall within the traditional definition of auction as a sale closing by highest bid.

In 2006, the Tennessee Attorney General similarly concluded that transactions on eBay did not constitute "auctions" under that state's auctioneer-licensing requirements. Tenn. Op. Atty. Gen. 06-053, Mar. 27, 2006 (enclosed). The Alabama Attorney General reached the same conclusion under that state's auctioneer-licensing law, which limits the term "auctioneer" to an individual "who engages in bid calling or who sells at public outcry." Ala. Op. Atty. Gen. 2008-109, July 16, 2008 (enclosed).

[Footnote 1: I note that many states expressly exclude online auction sales from their auctioneer-licensing requirements. See Ark. Code Ann. § 17-17-104(a)(5); 225 Ill. Comp. Stat. 407/10-1(d); La. Rev. Stat. Ann. § 37:3103(4); N.D. Cent. Code. § 51-05.1-04(5); Ohio Rev. Code Ann. § 4707.02(B)(8); 63 Pa. Cons. Stat. § 734.2; Tenn. Code Ann. § 62-19-103(9).]

CONCLUSION

Based on the foregoing, including the reasoning of the various Attorney General Offices referenced above, time-limited online auction sales are not subject to the auctioneer-licensing requirements set forth in Minnesota Statutes Chapter 330.

I thank you again for your correspondence.

Very truly yours,

FIONA B. RUTHVEN
Assistant Attorney General
(651) 757-1248 (Voice)
(651) 297-1235 (Fax)

Enclosures: Op. Atty Gen. 16-B, Apr. 10, 1940
Op. Atty Gen. 16-C, Mar. 26, 1920
Op. Atty Gen. 16-C, June 22, 1951
N.D. Op. Atty. Gen. 2005-L-40, Nov. 4, 2005
Tenn. Op. Atty. Gen. 06-053, Mar. 27, 2006
Ala. Op. Atty. Gen. 2008-109, July 16, 2008