Synopsis: Various securities matters. Makes various amendments to
the law concerning securities regulation. Provides that transactions
exempt from certain security registration requirements include the offer
or sale of securities involving certain mergers or share exchanges that
occur within or outside the United States. (Current law exempts the
offer or sale of securities involving certain mergers or share exchanges
that occur within the United States.) Changes the method of selection
of home and branch offices of registered broker-dealers for completion
of compliance reports. Provides that: (1) the chief deputy
commissioner and each designated attorney or investigator are police
officers of the state and members of the enforcement department of the
Effective: July 1, 2006.
January 9, 2006, read first time and referred to Committee on Rules and Legislative
Procedure.
January 9, 2006, amended; reassigned to Committee on Insurance and Financial
Institutions.
January 24, 2006, amended, reported favorably _ Do Pass.
January 30, 2006, read second time, ordered engrossed. Engrossed.
January 31, 2006, read third time, passed. Yeas 50, nays 0.
securities division; and (2) certain violations may be brought in the county where the violation allegedly occurred or Marion County. Requires the securities commissioner to send a certified copy of a final order suspending or revoking a person's license or an order to cease and desist to the insurance commissioner who may institute proceedings to revoke or suspend the person's insurance producer license. Changes the: (1) time a franchisor must renew a registration from 30 days before expiration of the registration to not later than the date the registration expires; and (2) time an employer who has an employee conducting origination activities must register from 15 days to five days after the employee first conducts origination activities. Provides that: (1) the securities commissioner may provide certain interpretive opinions or issue determinations under the law concerning loan brokers; and (2) certain individuals under the law concerning loan brokers may request an appeal from a denial of an application or a final order by the securities commissioner. Requires that a person who does not comply with an order of the court or judge under the law concerning loan brokers be punished for contempt of court.
A BILL FOR AN ACT to amend the Indiana Code concerning
business and other associations.
of, or guaranteed by a bank organized under the laws of the
United States, a bank, savings institution, or trust company
organized and supervised under the laws of a state, a federal
savings association, a savings association organized under the
laws of a state and authorized to do business in Indiana, a federal
credit union or a credit union, industrial loan association, or
similar association organized and supervised under the laws of
this state, or a corporation or organization whose issuance of
securities is required by any other law to be passed upon and
authorized by the department of financial institutions or by a
federal agency or authority.
(4) A security issued or guaranteed by a railroad or other common
or contract carrier, a public utility, or a common or contract
carrier or public utility holding company. However, an issuer or
guarantor must be subject to regulation or supervision as to the
issuance of its own securities by a public commission, board, or
officer of the government of the United States, of a state, territory,
or insular possession of the United States, of a municipality
located in a state, territory, or insular possession, of the District
of Columbia, or of the Dominion of Canada or a province of
Canada.
(5) A security listed or approved for listing upon notice of
issuance on the New York Stock Exchange, the American Stock
Exchange, the Chicago Stock Exchange, or on any other exchange
approved and designated by the commissioner, any other security
of the same issuer that is of senior rank or substantially equal
rank, a security called for by subscription rights or warrants so
listed or approved, or a warrant or right to purchase or subscribe
to any of the foregoing.
(6) A promissory note, draft, bill of exchange, or banker's
acceptance that is evidence of:
(A) an obligation;
(B) a guarantee of an obligation;
(C) a renewal of an obligation; or
(D) a guarantee of a renewal of an obligation;
to pay cash within nine (9) months after the date of issuance,
excluding grace days, that is issued in denominations of at least
fifty thousand dollars ($50,000) and receives a rating in one (1)
of the three (3) highest rating categories from a nationally
recognized statistical rating organization.
(7) A security issued in connection with an employee stock
purchase, savings, pension, profit-sharing, or similar benefit plan.
distribution of the securities by the issuer or by or through an
underwriter.
(C) Either:
(i) information consisting of the names of the issuer's
officers and directors, a balance sheet of the issuer as of a
date not more than eighteen (18) months prior to the date of
the sale, and a profit and loss statement for either the fiscal
year preceding that date or the most recent year of
operations is published in a securities manual approved by
the commissioner;
(ii) the issuer is required to file reports with the Securities
and Exchange Commission pursuant to sections 13 and 15
of the Securities Exchange Act of 1934 (15 U.S.C. 78m and
78o) and is not delinquent in the filing of the reports on the
date of the sale; or
(iii) information consisting of the names of the issuer's
officers and directors, a balance sheet of the issuer as of a
date not more than sixteen (16) months prior to the date of
the sale, and a profit and loss statement for either the fiscal
year preceding that date or the most recent year of
operations is on file with the commissioner. The information
required by this item to be on file with the commissioner
must be on a form and made in a manner as the
commissioner prescribes. The fee for the initial filing of the
form shall be twenty-five dollars ($25). The fee for the
annual renewal filing shall be fifteen dollars ($15). When a
filing is withdrawn or is not completed by the issuer, the
commissioner must retain the filing fee.
(D) There has been compliance with section 6(l) of this
chapter.
(E) Unless the issuer is registered under the Investment
Company Act of 1940, all the following must be true at the
time of the transaction:
(i) The security belongs to a class that has been in the hands
of the public for at least ninety (90) days.
(ii) The issuer of the security is a going concern, is actually
engaged in business, and is not in bankruptcy or
receivership.
(iii) Except as permitted by order of the commissioner, the
issuer and any predecessors have been in continuous
operation for at least five (5) years. An issuer or predecessor
is in continuous operation only if the issuer or predecessor
has gross operating revenue in each of the five (5) years
immediately preceding the issuer's or predecessor's claim of
exemption and has had total gross operating revenue of at
least two million five hundred thousand dollars ($2,500,000)
for those five (5) years or has had gross operating revenue of
at least five hundred thousand dollars ($500,000) in not less
than three (3) of those five (5) years.
The commissioner may revoke the exemption afforded by this
subdivision with respect to any securities by issuing an order:
(i) if the commissioner finds that the further sale of the
securities in this state would work or tend to work a fraud on
purchasers of the securities;
(ii) if the commissioner finds that the financial condition of
the issuer is such that it is in the public interest and is
necessary for the protection of investors to revoke or restrict
the exemption afforded by this subsection; or
(iii) if the commissioner finds that, due to the limited
number of shares in the hands of the public or due to the
limited number of broker-dealers making a market in the
securities, there is not a sufficient market for the securities
so that there is not a current market price for the securities.
(4) A transaction between the issuer or other person on whose
behalf the offering is made by an underwriter, or among
underwriters.
(5) A transaction in a bond or other evidence of indebtedness
secured by a real or chattel mortgage or deed of trust, or by
agreement for the sale of real estate or chattels, if the entire
mortgage, deed of trust, or agreement, together with all the bonds
or other evidences of indebtedness, is offered and sold as a unit.
(6) A transaction by an executor, administrator, personal
representative, sheriff, marshal, receiver, trustee in bankruptcy,
guardian, conservator, or a person acting in a trust or fiduciary
capacity where the transaction is effected pursuant to the authority
of or subject to approval by a court of competent jurisdiction.
(7) A transaction executed by a bona fide pledgee without any
purpose of evading this chapter.
(8) An offer or sale to a bank, a savings institution, a trust
company, an insurance company, an investment company (as
defined in the Investment Company Act of 1940 (15 U.S.C. 80a-1
through 80a-52)), a pension or profit-sharing trust, or other
financial institution or institutional buyer, or to a broker-dealer,
whether the purchaser is acting for itself or in a fiduciary capacity.
reasonable belief may include:
(i) obtaining a written representation signed by the
purchaser that the purchaser is acquiring the securities for
the purchaser's own investment and is aware of any
restrictions imposed on the transferability and resale of the
securities; and
(ii) placement of a legend on the certificate or other
document that evidences the securities stating that the
securities have not been registered under section 3 of this
chapter, and setting forth or referring to the restrictions on
transferability and sale of the securities.
(D) The issuer:
(i) files with the commissioner and provides to each
purchaser in this state an offering statement that sets forth
all material facts with respect to the securities; and
(ii) reasonably believes immediately before making a sale
that each purchaser who is not an accredited investor either
alone or with a purchaser representative has knowledge and
experience in financial and business matters to the extent
that the purchaser is capable of evaluating the merits and
risks of the prospective investment.
(E) If the aggregate offering price of the securities in an
offering pursuant to this subdivision (including securities sold
outside of Indiana) does not exceed five hundred thousand
dollars ($500,000), the issuer is not required to comply with
clause (D) if the issuer files with the commissioner and
provides to each purchaser in Indiana the following
information and materials:
(i) copies of all written materials, if any, concerning the
securities that have been provided by the issuer to any
purchaser; and
(ii) unless clearly presented in all written materials, a written
notification setting forth the name, address, and form of
organization of the issuer and any affiliate, the nature of the
principal businesses of the issuer and any affiliate, and the
information required in section 5(b)(1)(B), 5(b)(1)(C),
5(b)(1)(D), 5(b)(1)(E), 5(b)(1)(H), and 5(b)(1)(I) of this
chapter.
(F) The commissioner does not disallow the exemption
provided by this subdivision within ten (10) full business days
after receipt of the filing required by clause (D) or (E). The
issuer may make offers (but not sales) before and during the
ten (10) day period, if:
(i) each prospective purchaser is advised in writing that the
offer is preliminary and subject to material change; and
(ii) no enforceable offer to purchase the securities may be
made by a prospective purchaser, and no consideration in
any form may be accepted or received (directly or indirectly)
from a prospective purchaser, before the expiration of the
ten (10) day period and the vacation of an order disallowing
the exemption.
(G) The issuer need not comply with clause (D), (E), or (F) if:
(i) each purchaser has access to all the material facts with
respect to the securities by reason of the purchaser's active
involvement in the organization or management of the issuer
or the purchaser's family relationship with a person actively
involved in the organization or management of the issuer;
(ii) there are not more than fifteen (15) purchasers in Indiana
and each Indiana purchaser is an accredited investor or is a
purchaser described in item (i); or
(iii) the aggregate offering price of the securities, including
securities sold outside Indiana, does not exceed five hundred
thousand dollars ($500,000), the total number of purchasers,
including purchasers outside of Indiana, does not exceed
twenty-five (25) and each purchaser either receives all of the
material facts with respect to the security or is an accredited
investor or a purchaser described in item (i).
(H) If the issuer makes or is required to make a filing with the
commissioner under clause (D) or (E), the issuer must also file
with the commissioner at the time of the filing the consent to
service of process required by section 16 of this chapter. The
issuer shall also file with the commissioner, at the times and
in the forms as the commissioner may prescribe, notices of
sales made in reliance upon this subdivision.
(I) The commissioner may by rule deny exemption provided in
this subdivision to a particular class of issuers, or may make
the exemption available to the issuers upon compliance with
additional conditions and requirements, if appropriate in
furtherance of the intent of this chapter.
(11) An offer or sale of securities to existing security holders of
the issuer, including persons who at the time of the transaction are
holders of convertible securities, nontransferable warrants, or
transferable warrants exercisable within not more than ninety (90)
days of their issuance if no commission or other remuneration
(other than a standby commission) is paid or given for soliciting
a security holder in this state.
(12) An offer (but not a sale) of a security for which registration
statements or applications have been filed under this chapter and
the Securities Act of 1933 (15 U.S.C. 77a-77aa), if no stop order
or refusal order is in effect and no public proceeding or
examination looking toward an order is pending under either law.
(13) The deposit of shares under a voting-trust agreement and the
issue of voting-trust certificates for the deposit.
(14) The offer or sale of a commodity futures contract.
(15) The offer or sale of securities to or for the benefit of security
holders incident to a vote by the security holders pursuant to the
articles of incorporation or applicable instrument, on a merger or
share exchange under IC 23-1-40 or the laws of another state,
statutorily approved merger or share exchange,
reclassification of securities, exchange of securities under
IC 28-1-7.5, or sale of assets of the issuer in consideration of the
issuance of securities of the same or another issuer.
(16) A limited offering transactional exemption, which may be
created by rule adopted by the commissioner. The exemption
must further the objectives of compatibility with federal
exemptions and uniformity among the states.
(c) The commissioner may consider and determine if a proposed
sale, transaction, issue, or security is entitled to an exemption accorded
by this section. The commissioner may decline to exercise the
commissioner's authority as to a proposed sale, transaction, issue, or
security. An interested party desiring the commissioner to exercise the
commissioner's authority must submit to the commissioner a verified
statement of all material facts relating to the proposed sale, transaction,
issue, or security, which must be accompanied by a request for a ruling
as to the particular exemption claimed, together with a filing fee of one
hundred dollars ($100). After notice to the interested parties as the
commissioner determines is proper and after a hearing, if any, the
commissioner may enter an order finding the proposed sale,
transaction, issue, or security entitled or not entitled to the exemption
claimed. An order entered, unless an appeal is taken from it in the
manner prescribed in section 20 of this chapter, is binding upon the
commissioner and upon all interested parties, provided that the
proposed sale, transaction, issue, or security when consummated or
issued conforms in every relevant and material particular with the facts
as set forth in the verified statement submitted.
(d) The commissioner may by order deny or revoke an exemption
specified in subsection (a)(6), (a)(7), or (b) with respect to a specific
security or transaction, if the commissioner finds that the securities to
which the exemption applies would not qualify for registration under
sections 4 and 5 of this chapter. No order may be entered without
appropriate prior notice to all interested parties, opportunity for
hearing, and written findings of fact and conclusions of law, except that
the commissioner may by order summarily deny or revoke any of the
specific exemptions pending final determination of a proceeding under
this subsection. Upon the entry of a summary order, the commissioner
shall promptly notify all interested parties that it has been entered, of
the reasons for the order, and that within fifteen (15) days of the receipt
of a written request the matter will be set down for hearing. If no
hearing is requested and none is ordered by the commissioner, the
order will remain in effect until it is modified or vacated by the
commissioner. If a hearing is requested or ordered, the commissioner,
after notice of and opportunity for hearing to all interested persons,
may modify or vacate the order or extend it until final determination.
No order under this subsection may operate retroactively. No person
may be considered to have violated section 3 of this chapter by reason
of an offer or sale effected after the entry of an order under this
subsection if the person sustains the burden of proof that the person did
not know, and in the exercise of reasonable care could not have known,
of the order.
(e) If, with respect to an offering of securities, any notices or written
statements are required to be filed with the commissioner under
subsection (b)(10), the first filing made with respect to the offering
must be accompanied by a filing fee of one hundred dollars ($100).
(f) A condition, stipulation, or provision requiring a person
acquiring a security to waive compliance with this chapter or a rule or
order under this chapter is void.
commissioner may prescribe by rule or otherwise the period that an
investment adviser must retain records.
(c) All the records of a registered broker-dealer or an investment
adviser are subject at any time to reasonable periodic, special, or other
examinations by representatives of the commissioner, within or without
Indiana, as the commissioner deems necessary or appropriate in the
public interest or for the protection of investors. No charges or other
examination fees may be assessed against a registered broker-dealer or
an investment adviser as a result of an examination under this
subsection unless the examination results in an investigation or
examination made under section 16(d) of this chapter. To avoid
duplication of examinations of records, the commissioner may
cooperate with the securities administrators of other states, the
Securities and Exchange Commission, and any national securities
exchange or national securities association registered under the
Securities and Exchange Act of 1934 (15 U.S.C. 77b et seq.).
(d) Every registered broker-dealer and investment adviser shall file
financial reports and other reports as the commissioner by rule or order
prescribes. The commissioner's reporting requirements for registered
broker-dealers may not exceed the limitations provided in Section 15
of the Securities and Exchange Act of 1934 (15 U.S.C. 78o). The
commissioner's reporting requirements for investment advisers may not
exceed the limitations provided in Section 222 of the Investment
Advisers Act of 1940 (15 U.S.C. 80b-18a).
(e) If the information contained in a document filed with the
commissioner is or becomes inaccurate or incomplete in any material
respect, the registrant shall promptly file a correcting amendment.
(f) The commissioner may require investment advisers to furnish or
disseminate certain information necessary or appropriate for the public
interest or to protect investors or clients. The commissioner may
determine that the information furnished to clients or prospective
clients of an investment adviser under the Investment Advisors Act of
1940 (15 U.S.C. 80a-1 et seq.) and the rules adopted under the
Investment Advisers Act of 1940 may be used to satisfy this
requirement.
(g) The commissioner may annually select as many as twenty-five
percent (25%) of all Indiana home and branch offices of registered
broker-dealers for completion of compliance reports. The offices shall
be selected at random. Each broker-dealer office that is selected shall
file its compliance report according to rules adopted by the
commissioner under IC 4-22-2 not more than ninety (90) days after
being notified of selection under this subsection. No charges or other
examination fees may be assessed against a registered broker-dealer as
a result of the examination of a compliance report filed under this
subsection unless the examination results in an investigation or
examination made under section 16(d) of this chapter.
manner provided by law for the making of those appropriations.
However, costs of investigations recovered under sections 16(d) and
17.1(c) of this chapter shall be deposited with the treasurer of state to
be deposited by the treasurer of state in a separate account to be known
as the securities division enforcement account. The funds in the
account shall be available, with the approval of the budget agency, to
augment and supplement the funds appropriated for the administration
of this chapter. The funds in the account do not revert to the general
fund at the end of any fiscal year.
(d) In connection with the administration and enforcement of the
provisions of this chapter, the attorney general shall render all
necessary assistance to the securities commissioner upon the
commissioner's request, and to that end, the attorney general shall
employ legal and other professional services as are necessary to
adequately and fully perform the service under the direction of the
securities commissioner as the demands of the securities division shall
require. Expenses incurred by the attorney general for the purposes
stated in this subsection shall be chargeable against and paid out of
funds appropriated to the attorney general for the administration of the
attorney general's office.
(e) Neither the secretary of state, the securities commissioner, nor
an employee of the securities division shall be liable in their individual
capacity, except to the state, for an act done or omitted in connection
with the performance of their respective duties under this chapter.
(f) The commissioner, subject to the approval of the secretary of
state, may adopt rules, orders, and forms necessary to carry out this
chapter, including rules and forms concerning registration statements,
applications, reports, and the definitions of any terms if the definitions
are consistent with this chapter. The commissioner may by rule or order
allow for exemptions from registration requirements under sections 3
and 8 of this chapter if the exemptions are consistent with the public
interest and this chapter.
(g) The provisions of this chapter delegating and granting power to
the secretary of state, the securities division, and the securities
commissioner shall be liberally construed to the end that:
(1) the practice or commission of fraud may be prohibited and
prevented;
(2) disclosure of sufficient and reliable information in order to
afford reasonable opportunity for the exercise of independent
judgment of the persons involved may be assured; and
(3) the qualifications may be prescribed to assure availability of
reliable broker-dealers, investment advisers, and agents engaged
in and in connection with the issuance, barter, sale, purchase,
transfer, or disposition of securities in this state.
It is the intent and purpose of this chapter to delegate and grant to and
vest in the secretary of state, the securities division, and the securities
commissioner full and complete power to carry into effect and
accomplish the purpose of this chapter and to charge them with full and
complete responsibility for its effective administration.
(h) It is the duty of a prosecuting attorney, as well as of the attorney
general, to assist the securities commissioner upon the commissioner's
request in the prosecution to final judgment of a violation of the penal
provisions of this chapter and in a civil proceeding or action arising
under this chapter. If the commissioner determines that an action based
on the securities division's investigations is meritorious:
(1) the commissioner or a designee empowered by the
commissioner shall certify the facts drawn from the investigation
to the prosecuting attorney of the judicial circuit in which the
crime may have been committed;
(2) the commissioner and the securities division shall assist the
prosecuting attorney in prosecuting an action under this section,
which may include a securities division attorney serving as a
special deputy prosecutor appointed by the prosecuting attorney;
(3) a prosecuting attorney to whom facts concerning fraud are
certified under subdivision (1) may refer the matter to the attorney
general; and
(4) if a matter has been referred to the attorney general under
subdivision (3), the attorney general may:
(A) file an information in a court with jurisdiction over the
matter in the county in which the offense is alleged to have
been committed; and
(B) prosecute the alleged offense.
(i) The securities commissioner shall take, prescribe, and file the
oath of office prescribed by law. The securities commissioner, senior
investigator, the chief deputy commissioner, and each deputy
attorney or investigator designated by the commissioner are police
officers of the state and shall:
(1) have all the powers and duties of police officers in making
arrests for violations of this chapter, or in serving any process,
notice, or order connected with the enforcement of this chapter by
whatever officer or authority or court issued; The securities
commissioner, the deputy commissioners for enforcement, and
the investigators and
(2) comprise the enforcement department of the division;
chapter or a rule or order under this chapter. In addition to all other
remedies, the commissioner may bring an action in the name and on
behalf of the state against the person and any other person participating
in or about to participate in a violation of this chapter, to enjoin the
person from continuing or doing an act furthering a violation of this
chapter and may obtain the appointment of a receiver or conservator.
Upon a proper showing by the commissioner, the court shall enter an
order of the commissioner directing rescission, restitution, or
disgorgement to a person who has violated this chapter or a rule or
order under this chapter. In a court proceeding, the commissioner may
apply for and on due showing be entitled to have issued the court's
subpoena requiring the appearance of a defendant and the defendant's
employees or agents and the production of documents, books, and
records as may appear necessary for the hearing of the petition, to
testify and give evidence concerning the acts or conduct or things
complained of in the action. In the action, the circuit or superior courts
shall have jurisdiction of the subject matter. The court may not require
the commissioner to post a bond.
(b) Upon the issuance of an order or notice by the commissioner
under subsection (a), the commissioner shall promptly notify the
respondent that it has been issued and the reasons it has been issued
and that upon the receipt of a written request the matter will be set
down for a hearing to commence within forty-five (45) business days
after receipt of the request unless the respondent consents to a later
date. If no hearing is requested and none is ordered by the
commissioner, the order will remain in effect until it is modified or
vacated by the commissioner. If a hearing is requested or ordered, the
commissioner, after notice of an opportunity for hearing may modify
or vacate the order or extend it until final determination.
(c) In a proceeding in a circuit or superior court under this section,
the commissioner shall be entitled to recover all costs and expenses of
investigation to which the commissioner would be entitled in an
administrative proceeding under section 16(d) of this chapter, and the
court shall include the costs in its final judgment.
(d) The commissioner shall notify the insurance commissioner when
an administrative action or civil proceeding is filed under this section.
(e) In addition to the notice required under subsection (d), the
commissioner shall send a certified copy of every final order that:
(1) suspends or revokes a person's registration under this
chapter; or
(2) orders a person who is not registered under this chapter to
cease and desist from violating this chapter;
to the insurance commissioner appointed under IC 27-1-1-2. The
insurance commissioner shall act in accordance with
IC 27-1-15.6-29.5.
later date.
If a hearing is not requested and not ordered by the commissioner, an
order remains in effect until it is modified or vacated by the
commissioner. If a hearing is requested or ordered, the commissioner,
after notice of an opportunity for hearing, may modify or vacate the
order or extend it until final determination.
(c) The commissioner may deny, suspend, or revoke the license of
a licensee or the registration of a registrant if the licensee or the
registrant:
(1) fails to maintain the bond required under section 5 of this
chapter;
(2) is insolvent;
(3) has violated any provision of this chapter;
(4) has knowingly filed with the commissioner any document or
statement containing any false representation of a material fact or
omitting to state a material fact or if a representation becomes
false after the filing but during the term of a license or certificate
of registration as provided in subsection (g); or
(5) has been convicted, within ten (10) years before the date of the
application, renewal, or review, of any crime involving fraud or
deceit.
(d) The commissioner may not enter a final order denying,
suspending, or revoking the license of a licensee or the registration of
a registrant without prior notice to all interested parties, opportunity for
a hearing, and written findings of fact and conclusions of law.
However, the commissioner may by summary order deny, suspend, or
revoke a license or certificate of registration pending final
determination of any proceeding under this section. Upon the entry of
a summary order, the commissioner shall promptly notify all interested
parties that it has been entered, of the reasons for the summary order,
and that upon receipt by the commissioner of a written request from a
party, the matter will be set for hearing to commence within fifteen
(15) business days after receipt of the request. If no hearing is
requested and none is ordered by the commissioner, the order remains
in effect until it is modified or vacated by the commissioner. If a
hearing is requested or ordered, the commissioner, after notice of the
hearing has been given to all interested persons and the hearing has
been held, may modify or vacate the order or extend it until final
determination.
(e) IC 4-21.5 does not apply to a proceeding under this section.
(f) If:
(1) a licensee desires to have a previously unregistered employee
begin engaging in origination activities; or
(2) an individual who was previously registered under this chapter
is employed by another licensee who desires to have the registrant
engage in origination activities;
the employer licensee shall, within fifteen (15) five (5) business days
after the employee first conducts origination activities, submit to the
commissioner, on a form prescribed by the commissioner, notice of the
registrant's employment. If the employee has not previously been
registered, the licensee shall submit evidence that the employee has
completed the education requirements of section 21 of this chapter.
(g) If a material fact or statement included in an application under
this chapter changes after the application has been submitted, the
applicant shall provide written notice to the commissioner of the
change. The commissioner may revoke or refuse to renew the license
or registration of any person who:
(1) is required to submit a written notice under this subsection
and fails to provide the required notice within two (2) business
days after the person discovers or should have discovered the
change; or
(2) would not qualify for licensure or registration under this
chapter as a result of a change in material fact or statement.
subdivision (2). The commissioner may also bring an action on
behalf of the state to enjoin a person from violating this chapter.
The commissioner shall notify the person that an order or notice
has been issued, the reasons for it, and that a hearing will be set
within fifteen (15) days after the commissioner receives a written
request from the person requesting a hearing.
(5) Sign all orders, official certifications, documents, or papers
issued under this chapter or delegate the authority to sign any of
those items to a deputy.
(6) Hold and conduct hearings.
(7) Hear evidence.
(8) Conduct inquiries with or without hearings.
(9) Receive reports of investigators or other officers or employees
of the state of Indiana or of any municipal corporation or
governmental subdivision within the state.
(10) Administer oaths, or cause them to be administered.
(11) Subpoena witnesses, and compel them to attend and testify.
(12) Compel the production of books, records, and other
documents.
(13) Order depositions to be taken of any witness residing within
or without the state. The depositions shall be taken in the manner
prescribed by law for depositions in civil actions and made
returnable to the commissioner.
(14) Order that each witness appearing under the commissioner's
order to testify before the commissioner shall receive the fees and
mileage allowances provided for witnesses in civil cases.
(15) Provide interpretive opinions or issue determinations
that the commissioner will not institute a proceeding or an
action under this chapter against a specified person for
engaging in a specified act, practice, or course of business if
the determination is consistent with this chapter. The
commissioner may adopt rules to establish fees for individuals
requesting an interpretive opinion or a determination under
this subdivision. A person may not request an interpretive
opinion or a determination concerning an activity that:
(A) occurred before; or
(B) is occurring on;
the date the opinion or determination is requested.
(b) If a witness, in any hearing, inquiry, or investigation conducted
under this chapter, refuses to answer any question or produce any item,
the commissioner may file a written petition with the circuit or superior
court in the county where the hearing, investigation, or inquiry in
question is being conducted requesting a hearing on the refusal. The
court shall hold a hearing to determine if the witness may refuse to
answer the question or produce the item. If the court determines that
the witness, based upon the witness's privilege against
self-incrimination, may properly refuse to answer or produce an item,
the commissioner may make a written request that the court grant use
immunity to the witness. Upon written request of the commissioner, the
court shall grant use immunity to a witness. The court shall instruct the
witness, by written order or in open court, that:
(1) any evidence the witness gives, or evidence derived from that
evidence, may not be used in any criminal proceedings against
that witness, unless the evidence is volunteered by the witness or
is not responsive to a question; and
(2) the witness must answer the questions asked and produce the
items requested.
A grant of use immunity does not prohibit evidence that the witness
gives in a hearing, investigation, or inquiry from being used in a
prosecution for perjury under IC 35-44-2-1. If a witness refuses to give
the evidence after he the witness has been granted use immunity, the
court may find him the witness in contempt.
(c) In any prosecution, action, suit, or proceeding based upon or
arising out of this chapter, the commissioner may sign a certificate
showing compliance or noncompliance with this chapter by any person.
This shall constitute prima facie evidence of compliance or
noncompliance with this chapter and shall be admissible in evidence
in any action at law or in equity to enforce this chapter.
(d) If:
(1) a person disobeys any lawful:
(A) subpoena issued under this chapter; or
(B) order or demand requiring the production of any
books, accounts, papers, records, documents, or other
evidence or information as provided in this chapter; or
(2) a witness refuses to:
(A) appear when subpoenaed;
(B) testify to any matter about which the witness may be
lawfully interrogated; or
(C) take or subscribe to any oath required by this chapter;
the circuit or superior court of the county in which the hearing,
inquiry, or investigation in question is held, if demand is made or
if, upon written petition, the production is ordered to be made, or
the commissioner or a hearing officer appointed by the
commissioner, shall compel compliance with the lawful
requirements of the subpoena, order, or demand, compel the
production of the necessary or required books, papers, records,
documents, and other evidence and information, and compel any
witness to attend in any Indiana county and to testify to any matter
about which the witness may lawfully be interrogated, and to take
or subscribe to any oath required.
(e) If a person fails, refuses, or neglects to comply with a court
order under this section, the person shall be punished for contempt
of court.
with the items listed in subsection (b), the commissioner shall
make, certify, and deliver to the appellant the transcript, and the
appellant shall, not later than five (5) days after the date the
appellant receives the transcript, file the transcript and a copy of
the notice of appeal with the clerk of the court. The notice of appeal
serves as the appellant's complaint. The commissioner may appear
and file any motion or pleading and form the issue. The cause shall
be entered on the trial calendar for trial de novo and given
precedence over all matters pending in the court.
(d) The court shall receive and consider any pertinent oral or
written evidence concerning the order of the commissioner from
which the appeal is taken. If the order of the commissioner is
reversed, the court shall in its mandate specifically direct the
commissioner as to the commissioner's further action in the
matter. The commissioner is not barred from revoking or altering
the order for any proper cause that accrues or is discovered after
the order is entered. If the order is affirmed, the appellant is not
barred after thirty (30) days from the date the order is affirmed
from filing a new application if the application is not otherwise
barred or limited. During the pendency of the appeal, the order
from which the appeal is taken is not suspended but remains in
effect unless otherwise ordered by the court. An appeal may be
taken from the judgment of the court on the same terms and
conditions as an appeal is taken in civil actions.