§412:2-609 Imposition of administrative fines; assessment. (a) Any Hawaii financial institution which, and any institution-affiliated party who:

(1) Commits a material violation of any law or rule for which a penalty or fine is not expressly provided herein;

(2) Commits a material violation of any order issued by the commissioner which has become effective;

(3) Commits a material violation of any condition imposed in writing by the commissioner in connection with the grant of any application or other request by the financial institution; or

(4) Commits a material violation of any written agreement between the financial institution and the commissioner;

may be ordered by the commissioner to forfeit and pay an administrative fine of not more than $1,000 for each day during which the violation continues.

(b) Notwithstanding subsection (a), any Hawaii financial institution which, and any institution-affiliated party who:

(1) Commits any violation described in any clause of subsection (a);

(2) Recklessly engages in an unsafe or unsound practice in conducting the affairs of the Hawaii financial institution; or

(3) Breaches any fiduciary duty owed to the financial institution;

which violation, practice, or breach is:

(1) Part of a pattern of misconduct;

(2) Causes or is likely to cause more than a minimal loss to the Hawaii financial institution; or

(3) Results in pecuniary gain or other benefit to such party;

may be ordered by the commissioner to forfeit and pay an administrative fine of not more than $5,000 for each day during which the violation, practice, or breach continues.

(c) Notwithstanding subsections (a) and (b), any Hawaii financial institution which, and any institution-affiliated party who:

(1) Knowingly commits any violation described in any clause of subsection (a); knowingly engages in any unsafe or unsound practice in conducting the affairs of the Hawaii financial institution; or knowingly breaches any fiduciary duty owed to the financial institution; and

(2) Knowingly or recklessly causes a substantial loss to the Hawaii financial institution or a substantial pecuniary gain or other benefit to such party by reason of such violation, practice, or breach;

may be ordered by the commissioner to forfeit and pay an administrative fine of not more than $100,000 for each day during which the violation, practice, or breach continues. The maximum administrative fine shall not exceed in the case of any person other than a Hawaii financial institution, the amount of $500,000 and in the case of any Hawaii financial institution, the lesser of $1,000,000 or one per cent of the total assets of the Hawaii financial institution.

(d) Any administrative fine imposed under subsection (a), (b), or (c) may be assessed and collected by the commissioner by service of written notice and order upon the Hawaii financial institution or institution-affiliated party by means of certified mail, return receipt requested. If, with respect to any such assessment, a hearing is not requested pursuant to section 412:2-610(c) within the period of time allowed under section 412:2-610(c), the assessment shall constitute a final and unappealable order. [L 1993, c 350, pt of §1; am L 1994, c 107, §5; am L 1998, c 196, §8]