§ 43-17-13 - Penalties; cease and desist orders; injunctions; restitution; appointment and powers of receiver; subpoenas - Georgia Statutes

O.C.G.A. 43-17-13 (2010)
43-17-13. Penalties; cease and desist orders; injunctions; restitution; appointment and powers of receiver; subpoenas

(a) Whenever it may appear to the Secretary of State, either upon complaint or otherwise, that any person has engaged in or is engaging in or is about to engage in any act, practice, or transaction which is prohibited by this chapter or by any rule, regulation, or order of the Secretary of State promulgated or issued pursuant to any Code section of this chapter or which is declared to be unlawful under this chapter, the Secretary of State may, at his discretion, act under any or all of the following paragraphs and may:

(1) Impose administrative sanctions as provided in this paragraph:

(A) Subject to notice and opportunity for hearing in accordance with Code Section 43-17-16, unless the right to notice is waived by the person against whom the sanction is imposed, the Secretary of State may:

(i) Issue a cease and desist order against any person;

(ii) Censure the person if the person is registered as a paid solicitor;

(iii) Bar or suspend the person from association with a paid solicitor or charitable organization; or

(iv) Issue an order against a paid solicitor who willfully violates this chapter, imposing a civil penalty up to a maximum of $2,500.00 for a single violation or up to $25,000.00 for multiple violations in a single proceeding or a series of related proceedings;

(B) Imposition of the sanctions under this paragraph is limited as follows:

(i) If the Secretary of State revokes the registration of a charitable organization or paid solicitor or bars a person from association with a charitable organization or paid solicitor under subparagraph (A) of this paragraph, the imposition of that sanction precludes imposition of the sanction specified in division (iv) of subparagraph (A) of this paragraph; and

(ii) The imposition by the Secretary of State of one or more sanctions under this paragraph with respect to a specific violation precludes the Secretary of State from later imposing any other sanctions under this paragraph with respect to the violation;

(C) For the purpose of determining the amount or extent of a sanction, if any, to be imposed under subparagraph (A) of this paragraph, the Secretary of State shall consider, among other factors, the frequency, persistence, and willfulness of the conduct constituting a violation of this chapter or a rule promulgated under this chapter or an order of the Secretary of State, the number of persons adversely affected by the conduct, and the resources of the person committing the violation;

(2) Seek civil sanctions by applying to any superior court of competent jurisdiction in this state, which court:

(A) Upon a showing by the Secretary of State that a person has violated this chapter, a rule promulgated under this chapter, or an order of the Secretary of State, may enter or grant:

(i) A temporary restraining order, permanent or temporary injunction, or a writ of prohibition or mandamus;

(ii) A civil penalty up to a maximum of $2,500.00 for a single violation or up to $25,000.00 for multiple violations in a single proceeding or a series of related proceedings;

(iii) A declaratory judgment;

(iv) Restitution to contributors;

(v) An order of disgorgement;

(vi) The appointment of a receiver, auditor, or conservator for the defendant or the defendant's assets; or

(vii) Other relief as the court deems just and equitable;

(B) May, upon a showing by the Secretary of State that the defendant is about to violate this chapter, a rule promulgated under this chapter, or an order of the Secretary of State, issue:

(i) A temporary restraining order;

(ii) A temporary or permanent injunction;

(iii) A writ of prohibition or mandamus; or

(iv) Such other relief as the court deems just and equitable;

(C) In determining the appropriate relief to grant, shall consider enforcement action taken and sanctions imposed by the Secretary of State under paragraph (1) of this subsection in connection with the transaction or transactions constituting a violation of this chapter, a rule promulgated under this chapter, or an order of the Secretary of State; or

(3) Transmit such evidence as may be available concerning such act, practice, or transaction to any district attorney or to the Attorney General, who may, at his individual discretion, institute the necessary criminal proceedings.

(b) In any proceedings for an injunction, the Secretary of State may apply for and be entitled to have issued the court's subpoena requiring:

(1) The appearance forthwith of any defendant and the defendant's agents, employees, partners, officers, or directors or the members of a defendant limited liability company; and

(2) The production of such documents, books, and records as may appear necessary for the hearing upon the petition for an injunction.

(c) In any action brought under subsection (a) of this Code section, the court, upon application of the state, may appoint a receiver for the assets of the defendant where it has been established:

(1) That the defendant has engaged in a pattern of willful violations of this chapter which has resulted in substantial actual damage to citizens of this state;

(2) That the defendant is outside this state or is actually removing or about to remove himself or his property outside the limits of this state or conceals himself or his property; or

(3) That the appointment of the receiver is necessary to preserve the assets of the defendant for the benefit of citizens of the state damaged by the defendant's violations of this chapter.

(d) When a receiver is appointed by the court pursuant to this chapter, he shall have the power to bring an action for, collect, receive, and take into his possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes, and property of every description, derived by any means in violation of this chapter, including property with which such property has been mingled. He shall have the power to sell, convey, and assign the same and to hold and dispose of the proceeds thereof under the direction of the court. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.

(e) In any criminal proceeding either the district attorney or the Attorney General or both may apply for and be entitled to have issued the court's subpoena requiring:

(1) The appearance forthwith of any defendant or the defendant's agents, employees, partners, officers, or directors or the members of a defendant limited liability company; and

(2) The production of such documents, books, and records as may appear necessary for the prosecution of such criminal proceedings.