§ 58-13C-604 — Administrative enforcement

New Mexico § 58-13C-604

• Jurisdiction: New Mexico
• Ch. 58: Financial Institutions and Regulations
• Art. 6: Administration and Judicial Review

Text

A. If the director 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 the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act 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 the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act, the director 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 the New Mexico Uniform Securities Act; (2) issue an order denying, suspending, revoking or conditioning the exemptions for a broker-dealer pursuant to Subparagraph (d) or (f) of Paragraph (1) of Subsection B of Section 401 [58-13B-401 NMSA 1978] [of] the New Mexico Uniform Securities Act or an investment adviser pursuant to Subparagraph (c) of Paragraph (1) of Subsection B of Section 403 [58-13B-403 NMSA 1978] of that act; or (3) issue an order pursuant to Section 204 [58-13B-204 NMSA 1978] of the New Mexico Uniform Securities Act. B. For any administrative proceeding authorized by the New Mexico Uniform Securities Act, including proceedings related to notices and orders pursuant to Section 204 of that act, Subsection E of Section 306 [58-13C-306 NMSA 1978] of that act, Subsection F of Section 412 [58-13C-412 NMSA 1978] of that act or Subsection A of this section: (1) the director may commence an administrative proceeding by entering either a notice of intent to do a contemplated act or a summary order. The notice of intent or summary order may be entered without notice and without opportunity for hearing and need not be supported by findings of fact or conclusions of law, but shall be in a record; (2) upon entry of a notice of intent or summary order, the director shall promptly notify in a record all parties against whom action is taken or contemplated that the notice or summary order has been entered and the reasons for the notice or summary order. The director shall send parties against whom action is taken or contemplated a notice of opportunity for hearing on the matters set forth in the order or notice of intent. The notice shall state that the parties have fifteen days from receipt of the notice to file with the director a request in a record for a hearing. The director shall set the matter for hearing no more than sixty nor less than fifteen days from receipt of the request for hearing and shall promptly notify the parties of the time and place for hearing; (3) the director, whether or not a request in a record for hearing is received from any interested party, may set the matter down for hearing on the director's own motion; (4) the director may by order take the action contemplated in the notice of intent or make a summary order final: (a) fifteen days after the parties against whom action is taken or contemplated receive notice of the right to request a hearing if those parties fail to request a hearing; or (b) one day following the date set for a hearing requested by a party if the party fails to appear at the hearing; (5) if a hearing is requested or ordered, the director, after notice of the opportunity for hearing to all persons against whom action is taken or contemplated, may modify or vacate the order or extend the order until final determination; (6) for the purpose of conducting any hearing pursuant to this section, the director shall have the power to call any party to testify under oath at such hearing to require the attendance of witnesses and the production of books, records and papers and to take the depositions of witnesses; and for that purpose the director is authorized, at the request of the person requesting such hearing or upon the director's own initiative, to issue a subpoena for any witness or a subpoena duces tecum to compel the production of any books, records or papers. At the director's option or when state law or court rules require such process, the subpoena may be directed to the sheriff or other law enforcement agency in the county where such witness resides; (7) a party entitled to a hearing pursuant to this section may appear on the party's own behalf or may be represented by an attorney. A party has the right to present all relevant evidence and to examine all opposing witnesses who appear on any matter relevant to the issues; (8) upon making a request in a record to another party, any party is entitled to: (a) obtain the names and addresses of witnesses who will or may be called by the other party to testify at the hearing; and (b) inspect and copy any documents or items that the other party will or may introduce in evidence at the hearing; (9) the director shall pass upon the admissibility of evidence and may exclude evidence that is incompetent, irrelevant, immaterial or unduly repetitious; (10) the director may conduct the hearing, or the director may appoint a hearing officer to conduct the hearing. A hearing officer shall have the same powers and authority in conducting a hearing as the director. The hearing officer shall be admitted to the practice of law in this state and shall be possessed of such additional qualifications as the director may require. The director may direct the hearing officer to submit to the director a report setting forth in a record proposed findings of fact and conclusions of law and a recommendation of the action to be taken by the director. The director may order additional testimony to be taken or permit the introduction of further documentary evidence; and (11) a final order or order after hearing shall include entry of findings of fact and conclusions of law in a record. C. In a final order pursuant to Subsection B of this section, the director may impose a civil penalty of up to ten thousand dollars ($10,000) for each violation. For purposes of determining the amount of a civil penalty imposed pursuant to this subsection, the director shall consider, among other factors, the frequency and persistence of the conduct constituting a violation of the New Mexico Uniform Securities Act or a rule or order of the director pursuant to that act, the number of persons adversely affected by the conduct and the resources of the person committing the violation. D. If a person violates a provision of the New Mexico Uniform Securities Act and the violation is directed toward, targets or is committed against a person who, at the time of the violation, is sixty-two years of age or older, the director, in addition to any other administrative penalties provided for pursuant to the New Mexico Uniform Securities Act or a rule issued pursuant to that act, may impose an additional administrative penalty not to exceed ten thousand dollars ($10,000) for each violation. E. In a final order, the director may charge the actual cost of an investigation or proceeding for a violation of the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act. F. If a petition for judicial review of a final order is not filed in accordance with Section 609 [58-13C-609 NMSA 1978] of the New Mexico Uniform Securities Act, the director may file a certified copy of the final order with the clerk of the appropriate district court. 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. G. If a person does not comply with an order pursuant to this section, the director may petition the district court of Santa Fe county or other appropriate district court or a court of another state, a federal court or a court of a foreign jurisdiction to enforce the order. The court shall not require the director to post a bond in an action or proceeding pursuant to 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 greater than ten thousand dollars ($10,000) for each violation and may grant any other relief the court determines is just and proper in the circumstances.

Legislative History

Laws 2009, ch. 82, § 604.