§5604. Administrative enforcement

Link to law: http://legislature.vermont.gov/statutes/section/09/150/05604
Published: 2015

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The Vermont Statutes Online



Title

09

:
Commerce and Trade






Chapter

150

:
SECURITIES ACT






Subchapter

006
:
ADMINISTRATION AND JUDICIAL REVIEW










 

§

5604. Administrative enforcement

(a) If the

Commissioner determines that a person has engaged, is engaging, or is about to

engage in an act, practice, or course of business constituting a violation of

this chapter or a rule adopted or order issued under this chapter or that a

person has materially aided, is materially aiding, or is about to materially

aid an act, practice, or course of business constituting a violation of this

chapter or a rule adopted or order issued under this chapter, the Commissioner

may:

(1) issue an

order directing the person to cease and desist from engaging in the act,

practice, or course of business or to take other action necessary or

appropriate to comply with this chapter;

(2) issue an

order denying, suspending, revoking, or conditioning the exemptions for a

broker-dealer under subdivision 5401(b)(1)(D) or (F) of this title or an

investment adviser under subdivision 5403(b)(1)(C) of this title; or

(3) issue an

order under section 5204 of this title.

(b) An order

under subsection (a) of this section is effective on the date of issuance. Upon

issuance of the order, the Commissioner shall promptly serve each person

subject to the order with a copy of the order and a notice that the order has

been entered. The order must include a statement of any civil penalty or costs

of investigation the Commissioner will seek, a statement of the reasons for the

order, and notice that, within 15 days after receipt of a request in a record

from the person, the matter will be scheduled for a hearing. If a person

subject to the order does not request a hearing and none is ordered by the

Commissioner within 30 days after the date of service of the order, the order,

including the imposition of a civil penalty or requirement for payment of the

costs of investigation sought in a statement in the order, becomes final as to

that person by operation of law. If a hearing is requested or ordered, the

Commissioner, after notice of and opportunity for hearing to each person

subject to the order, may modify or vacate the order or extend it until final

determination.

(c) If a hearing

is requested or ordered pursuant to subsection (b) of this section, a hearing

must be held in accordance with the provisions of 3 V.S.A. chapter 25

(Administrative Procedure Act). A final order may not be issued unless the

Commissioner makes findings of fact and conclusions of law in a record in

accordance with the requirements of 3 V.S.A. § 812. The final order may make

final, vacate, or modify the order issued under subsection (a) of this section.

(d) In a final

order under subsection (b) or (c) of this section, the Commissioner may impose

a civil penalty of not more than $15,000.00 for each violation and not more

than $1,000,000.00 for more than one violation. The Commissioner may also

require a person to make restitution or provide disgorgement of any sums shown

to have been obtained in violation of this chapter, plus interest at the legal

rate. The limitations on civil penalties contained in this subsection shall not

apply to settlement agreements.

(e) For purposes

of determining any sanction to be imposed under subsections (a) through (d) of

this section, the Commissioner shall consider among other factors, the

frequency and persistence of the conduct constituting a violation of this

chapter or a rule or order of the Commissioner under this chapter and the

number of persons adversely affected by the conduct, and the resources of the

person committing the violation.

(f) In a final

order, the Commissioner may charge the actual cost of an investigation or

proceeding for a violation of this chapter or a rule adopted or order issued

under this chapter.

(g) If a

petition for judicial review of a final order is not filed in accordance with

section 5609 of this title, the Commissioner may file a certified copy of the

final order with the clerk of a court of competent jurisdiction. The order so

filed has the same effect as a judgment of the court and may be recorded,

enforced, or satisfied in the same manner as a judgment of the court.

(h) If a person

does not comply with an order under this section, the Commissioner may petition

a court of competent jurisdiction to enforce the order. The Court may not

require the Commissioner to post a bond in an action or proceeding under this

section. If the Court finds, after service and opportunity for hearing, that

the person was not in compliance with the order, the Court may adjudge the

person in civil contempt of the order. The Court may impose a further civil

penalty against the person for contempt in an amount not less than $5,000.00

but not greater than $25,000.00 for each violation and may grant any other

relief the Court determines is just and proper in the circumstances. (Added

2005, No. 11, § 1, eff. July 1, 2006; amended 2011, No. 78 (Adj. Sess.), § 34.)
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