§ 71-814. Violation of act - Orders - Penalties.

A.  Whenever it appears to the Administrator that any person has engaged in or is about to engage in any act or practice constituting a violation of any provision of the Oklahoma Business Opportunity Sales Act or any rule or order hereunder, the Administrator may:

1.  Issue an order directing each person to cease and desist from continuing the act or practice and/or issue an order imposing a civil penalty up to a maximum of Five Thousand Dollars ($5,000.00) for a single violation or transaction or of Fifty Thousand Dollars ($50,000.00) for multiple violations or transactions in a single proceeding or a series of related proceedings; or

2.  Prior to, concurrently with, or subsequent to an administrative proceeding pursuant to paragraph 1 of this subsection, bring an action in the district court of Oklahoma County or the district court in any other county where service can be obtained on one or more of the defendants to enjoin the acts or practices and to enforce compliance with the Oklahoma Business Opportunity Sales Act or any rule or order hereunder.  Upon a proper showing, a permanent or temporary injunction, restraining order or writ of mandamus shall be granted and a receiver or conservator may be appointed for the defendant or the defendant's assets or the court may order rescission, which shall include restitution plus the legal interest rate, for any sales of business opportunities determined to be unlawful pursuant to the Oklahoma Business Opportunity Sales Act or any rule or order hereunder.  The court shall not require the Administrator to post a bond.  No costs shall be assessed for or against the Administrator in a proceeding under the Oklahoma Business Opportunity Sales Act brought by or against the Administrator in any court except as otherwise provided by law.

B.  Except as provided in subsection D of this section or unless the right to notice and hearing is waived by the person against whom the sanction is imposed, the sanctions provided in paragraph 1 of subsection A of this section may be imposed only after notice and opportunity for hearing as required by the Administrative Procedures Act.  If the person to whom notice is addressed does not request a hearing within fifteen (15) days after the service of the notice, a final order as provided for in subsection A of this section may be issued.

C.  For purposes of determining any sanction to be imposed under subsection A of this section, the Administrator shall consider, among other factors, the frequency and persistence of the conduct constituting a violation of the Oklahoma Business Opportunity Sales Act or a rule or order of the Administrator under the Oklahoma Business Opportunity Sales Act, the number of persons adversely affected by the conduct, and the resources of the person committing the violation.

D.  1.  If the Administrator makes written findings of fact to support the conclusion that the public interest will be harmed by delay in issuing a cease and desist order pursuant to paragraph 1 of subsection A of this section, the Administrator may issue a summary order pending the hearing required by subsection B of this section.

Upon the entry of the summary order, the Administrator shall promptly notify the person subject to the summary order:

a.that the summary order has been entered and the reasons therefor,

b.that the person subject to the summary order, if desiring a hearing, must make written request for a hearing to the Administrator within fifteen (15) days after service of the notice is effective,

c.that within fifteen (15) days after receipt by the Administrator of a written request the matter will be set for hearing to determine whether the summary order should be modified, vacated or extended pending final determination of any proceeding under paragraph 1 of subsection A of this section, and

d.that a hearing shall be commenced within fifteen (15) days of the matter being set for hearing.

2.  The summary order shall remain in effect until the conclusion of the hearing on the summary order unless the Administrator or the Administrator’s designee extends the summary order pending a final determination of any proceeding under paragraph 1 of subsection A of this section.  If no hearing is requested and none is ordered by the Administrator, the summary order will remain in effect until it is modified or vacated by the Administrator or the Administrator’s designee.  If a request for hearing on the summary order is timely made and if the hearing is not commenced by the Administrator within the time limit set forth above, the summary order shall dissolve and a cease and desist order shall not be issued pursuant to paragraph 1 of subsection A of this section except upon reasonable notice and opportunity for a hearing as provided in subsection B of this section.

E.  When the Administrator has authority to institute an action or proceeding pursuant to this section, the Administrator may accept an assurance of discontinuance of an act or practice that is alleged to be unlawful under Section 819 of this title from the person who is alleged to have engaged or be about to engage in the act or practice.  The assurance shall not constitute an admission of guilt.  The assurance may include a stipulation for any or all of the following:

1.  The voluntary payment by the person for the costs of investigation;

2.  An amount to be held in escrow pending the outcome of an action; or

3.  An amount for restitution to an aggrieved person.

An assurance of discontinuance shall be in writing and filed with the Administrator.  Unless rescinded by the parties or voided by a court for good cause, the assurance may be enforced in the district court of Oklahoma County by the parties to the assurance.  The assurance may be modified by the parties or by a court for good cause.

Added by Laws 1985, c. 157, § 14, eff. Nov. 1, 1985.  Amended by Laws 1991, c. 79, § 4, eff. Sept. 1, 1991; Laws 1992, c. 169, § 5, eff. Sept. 1, 1992; Laws 1997, c. 279, § 27, eff. July 1, 1997; Laws 1999, c. 109, § 19, eff. July 1, 1999.