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§ 78A-47. Injunctions; cease and desist orders.

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§ 78A‑47.  Injunctions;cease and desist orders.(a)        Whenever it appearsto the Administrator that any person has engaged or is about to engage in anyact or practice constituting a violation of any provision of this Chapter orany rule or order hereunder, he may in his discretion bring an action in anycourt of competent jurisdiction to enjoin the acts or practices and to enforcecompliance with this Chapter or any rule or order hereunder. Upon a propershowing a permanent or temporary injunction, restraining order, or writ ofmandamus shall be granted and a receiver or conservator may be appointed forthe defendant or the defendant's assets. In addition to any other remediesprovided by this Chapter, the Administrator may apply to the court hearing thismatter for an order of restitution whereby the defendant in such action shallbe ordered to make restitution of those sums shown by the Administrator to havebeen obtained by him in violation of any of the provisions of this Chapter.Such restitution shall be payable, in the discretion of the court, to theAdministrator or receiver appointed pursuant to this section for the benefit ofthose persons whose assets were obtained in violation of this Chapter, ordirectly to those persons. The court may not require the Administrator to posta bond.(b)       (1)        Ifthe Administrator determines after giving notice of and opportunity for ahearing, that any person has engaged in or is about to engage in, any act orpractice constituting a violation of any provision of this Chapter or any ruleor order hereunder, he may order such person to cease and desist from suchunlawful act or practice and take such affirmative action as in the judgment ofthe Administrator will carry out the purposes of this Chapter.(2)        If the Administratormakes written findings of fact that the public interest will be irreparablyharmed by delay in issuing an order under G.S. 78A‑47(b)(1), theAdministrator may issue a temporary cease and desist order. Upon the entry of atemporary cease and desist order, the Administrator shall promptly notify inwriting the person subject to the order that such order has been entered, thereasons therefor, and that within 20 days after the receipt of a writtenrequest from such person the matter shall be scheduled for hearing inaccordance with Chapter 150B of the General Statutes to determine whether ornot the order shall become permanent and final. If no request for a hearing,other responsive pleading, or submission is received by the Administratorwithin 30 business days of receipt of service of notice of the order upon theperson subject to the order and no hearing is ordered by the Administrator, theorder shall become final and remain in effect unless it is modified or vacatedby the Administrator. If a hearing is requested or ordered, the Administrator,after giving notice of an opportunity for a hearing to the person subject tothe order, shall by written findings of fact and conclusion of law, vacate,modify, or make permanent the order.(3)        No order under subsection(b), except an order issued pursuant to G.S. 78A‑47(b)(2), may be enteredwithout prior notice of an opportunity for hearing. The Administrator mayvacate or modify an order under this subsection (b) upon his finding that theconditions which required such an order have changed and that it is in thepublic interest to so vacate or modify.(4)        A final order issuedpursuant to the provisions of subsection (b) shall be subject to review asprovided in G.S. 78A‑48.(c)        The Administratormay issue an order against an applicant, registered person, or other person whowillfully violates this Chapter or a rule or order of the Administrator underthis Chapter:(1)        Imposing a civilpenalty of up to two thousand five hundred dollars ($2,500) for a single violationor of up to twenty‑five thousand dollars ($25,000) for multipleviolations in a single proceeding or a series of related proceedings; and(2)        Requiringreimbursement of the costs of investigation.The clear proceeds of civilpenalties imposed under this subsection shall be remitted to the Civil Penaltyand Forfeiture Fund in accordance with G.S. 115C‑457.2. Any reimbursementimposed under this subsection shall be paid into the General Fund. No orderunder this subsection may be entered without prior notice and an opportunityfor a hearing conducted pursuant to Article 3 of Chapter 150B of the GeneralStatutes. (1925,c. 190, s. 16; 1927, c. 149, s. 16; 1973, c. 1380; 1983, c. 817, s. 18; 1991,c. 456, ss. 3, 4; 1997‑462, s. 4; 1998‑215, s. 120; 2001‑126,s. 4.)
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  • § 78A‑47.  Injunctions;cease and desist orders.

    (a)        Whenever it appearsto the Administrator that any person has engaged or is about to engage in anyact or practice constituting a violation of any provision of this Chapter orany rule or order hereunder, he may in his discretion bring an action in anycourt of competent jurisdiction to enjoin the acts or practices and to enforcecompliance with this Chapter or any rule or order hereunder. Upon a propershowing a permanent or temporary injunction, restraining order, or writ ofmandamus shall be granted and a receiver or conservator may be appointed forthe defendant or the defendant's assets. In addition to any other remediesprovided by this Chapter, the Administrator may apply to the court hearing thismatter for an order of restitution whereby the defendant in such action shallbe ordered to make restitution of those sums shown by the Administrator to havebeen obtained by him in violation of any of the provisions of this Chapter.Such restitution shall be payable, in the discretion of the court, to theAdministrator or receiver appointed pursuant to this section for the benefit ofthose persons whose assets were obtained in violation of this Chapter, ordirectly to those persons. The court may not require the Administrator to posta bond.

    (b)       (1)        Ifthe Administrator determines after giving notice of and opportunity for ahearing, that any person has engaged in or is about to engage in, any act orpractice constituting a violation of any provision of this Chapter or any ruleor order hereunder, he may order such person to cease and desist from suchunlawful act or practice and take such affirmative action as in the judgment ofthe Administrator will carry out the purposes of this Chapter.

    (2)        If the Administratormakes written findings of fact that the public interest will be irreparablyharmed by delay in issuing an order under G.S. 78A‑47(b)(1), theAdministrator may issue a temporary cease and desist order. Upon the entry of atemporary cease and desist order, the Administrator shall promptly notify inwriting the person subject to the order that such order has been entered, thereasons therefor, and that within 20 days after the receipt of a writtenrequest from such person the matter shall be scheduled for hearing inaccordance with Chapter 150B of the General Statutes to determine whether ornot the order shall become permanent and final. If no request for a hearing,other responsive pleading, or submission is received by the Administratorwithin 30 business days of receipt of service of notice of the order upon theperson subject to the order and no hearing is ordered by the Administrator, theorder shall become final and remain in effect unless it is modified or vacatedby the Administrator. If a hearing is requested or ordered, the Administrator,after giving notice of an opportunity for a hearing to the person subject tothe order, shall by written findings of fact and conclusion of law, vacate,modify, or make permanent the order.

    (3)        No order under subsection(b), except an order issued pursuant to G.S. 78A‑47(b)(2), may be enteredwithout prior notice of an opportunity for hearing. The Administrator mayvacate or modify an order under this subsection (b) upon his finding that theconditions which required such an order have changed and that it is in thepublic interest to so vacate or modify.

    (4)        A final order issuedpursuant to the provisions of subsection (b) shall be subject to review asprovided in G.S. 78A‑48.

    (c)        The Administratormay issue an order against an applicant, registered person, or other person whowillfully violates this Chapter or a rule or order of the Administrator underthis Chapter:

    (1)        Imposing a civilpenalty of up to two thousand five hundred dollars ($2,500) for a single violationor of up to twenty‑five thousand dollars ($25,000) for multipleviolations in a single proceeding or a series of related proceedings; and

    (2)        Requiringreimbursement of the costs of investigation.

    The clear proceeds of civilpenalties imposed under this subsection shall be remitted to the Civil Penaltyand Forfeiture Fund in accordance with G.S. 115C‑457.2. Any reimbursementimposed under this subsection shall be paid into the General Fund. No orderunder this subsection may be entered without prior notice and an opportunityfor a hearing conducted pursuant to Article 3 of Chapter 150B of the GeneralStatutes. (1925,c. 190, s. 16; 1927, c. 149, s. 16; 1973, c. 1380; 1983, c. 817, s. 18; 1991,c. 456, ss. 3, 4; 1997‑462, s. 4; 1998‑215, s. 120; 2001‑126,s. 4.)

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