Print
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.)