Section 32: Violations; revocation of registration; fines and penalties; injunctions
Section 32. (a) If any registered charitable organization, professional fund-raising counsel, commercial co-venturer or professional solicitor fails to file any registration application or statement, annual report or other information required to be filed by the division under sections eighteen to thirty-five, inclusive, the division may notify the delinquent charitable organization, professional fund-raising counsel or professional solicitor by mailing a notice by registered mail to its last known address. If the required registration application or statement, annual report or other information is not filed within two weeks after the formal notification of receipt of such notice, the division may cancel or suspend the registration of such delinquent charitable organization, professional fund-raising counsel, commercial co-venturer or professional solicitor.
(b) If as the result of an investigation the division finds that any information contained in any application required under sections eighteen to thirty-five, inclusive, is false or misleading or that a registrant under said sections has violated said sections, it may, subject to the provisions of section thirteen of chapter thirty A of the General Laws, suspend or cancel the registration and revoke the certificate of registration.
(c) The registration of any charitable organization, professional fund-raising counsel, commercial co-venturer or professional solicitor which or who knowingly makes a false statement in any registration application or statement, annual report or other information required to be filed by the division or sections eighteen to thirty-five, inclusive, may, subject to the provisions of section thirteen of chapter thirty A of the General Laws, be revoked by the division.
(d) Any person who knowingly violates any provision of sections nineteen to thirty-five, inclusive, or who willfully and knowingly gives false or incorrect information to the division in filing statements or reports required by said sections, whether such report or statement is verified or not, may be fined not more than one thousand dollars or by imprisonment for not more than one year, or both.
(e) Whenever the attorney general or any district attorney has reason to believe that any charitable organization, professional fund-raising counsel, commercial co-venturer or professional solicitor is operating in violation of the provisions of sections eighteen to thirty-five, inclusive, or has knowingly and willfully made any false statement in any registration application or statement, report or other information required to be filed under said sections, or whenever a charitable organization has failed to file a registration statement required under said sections, or whenever there is employed or is about to be employed in any solicitation or collection of contributions for a charitable organization any unfair or deceptive acts or practices, as defined by chapter ninety-three A, or any device, scheme or artifice to defraud or to obtain money or property by means of any false pretense, representation or promise, or whenever any of the principal officers of any charitable organization have refused or failed after notice to produce any records of such organization, in addition to all other actions authorized by law, the attorney general or district attorney may bring an action in the name of the commonwealth against such charitable organization and its officers, such professional fund-raising counsel, commercial co-venturer or professional solicitor or any other person who has violated said sections or who has participated or is about to participate in any solicitation or collection by employing any unfair or deceptive acts or practices, as defined by said chapter ninety-three A, or any device, scheme, artifice, false representation or promise, to defraud or obtain money or other property, to enjoin such charitable organization or professional fund-raising counsel, commercial co-venturer or professional solicitor or other person from continuing such violation, solicitation or collection or engaging therein or doing any acts in furtherance thereof and for such other relief as to the court seems appropriate.
(f) In addition to any remedies or actions authorized or permitted under subsections (a) to (e), inclusive, if any charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor violates one or more applicable provisions of section 19, 22 or 24, the director shall notify the delinquent charitable organization, professional fundraising counsel, commercial co-venturer, professional solicitor, or any responsible officer or agent of any of the foregoing by mailing a notice thereof by United States certified or registered mail or by any other courier or service found by the director to be sufficiently reliable to generate written documentation of delivery, to its last known address or that of the responsible officer or agent. The notice mailed by the division shall be considered a sufficient notice, and a certificate of the person mailing the notice that it has been mailed in accordance with this section, together with a post office, courier or service receipt of the mailing, shall be considered prima facie evidence thereof and shall be admissible in any court of the commonwealth as to the facts contained therein. Refusal of delivery of the mailing shall not be a defense to the receipt of the notice.
(g) If the charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor fails to correct the violation within 30 days of the day the notice is mailed, the director may assess a civil penalty against the charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor unless the failure is for good cause. Notice of the assessment of the penalty shall be mailed to the charitable organization, professional fundraising counsel, commercial co-venturer, professional solicitor or responsible officer or agent in the manner provided above for the initial notice. For charitable organizations the civil penalty shall be in an amount of up to $50 per day for each day subsequent to the end of the 30 day period until the violation is cured; provided, however, that the maximum aggregate penalty shall not be greater than $10,000. For a professional fundraising counsel, commercial co-venturer or professional solicitor, the civil penalty shall be in an amount of up to $500 per day for each day subsequent to the end of the 30 day period until the violation is cured; provided, however, that the maximum aggregate penalty shall not be greater than $25,000.
(h) A charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor aggrieved by the imposition of a civil penalty pursuant to this section may bring a civil action in the nature of certiorari under section 4 of chapter 249; provided, however, that the action shall be commenced within 60 days of the date of the notice of the civil penalty. If a charitable organization, professional fundraising counsel, commercial co-venturer, professional solicitor or responsible officer or agent fails to pay any civil penalty provided herein, the attorney general may initiate a civil action in the superior court to enforce the penalty or to obtain any other relief so required. The action by the attorney general may be initiated, if no action is commenced under section 4 of chapter 249, upon the expiration of the 60 day period to bring the action or, if an action is commenced under said section 4 of said chapter 249, the issuance of a final judicial determination thereon.
(i) The penalty that may be imposed on the charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor may be assessed against a responsible officer or agent of the charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor, upon a finding by the director that the responsible officer or agent has the authority to cause the charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor to comply with the requirements of this chapter, but has neglected or refused to do so after notice and demand. The president and treasurer of the charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor, and any person authorized in its by-laws, operating agreement, articles of organization, charter, organizational documents or by resolution of its board of trustees or directors to sign documents or filings on behalf of the charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor, shall be rebuttably presumed to have the authority to cause the charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor to comply with the requirements of this chapter.
(j) Before the assessment, the director shall provide the responsible officer or agent with notice of the director's intention to find the person to be a responsible officer or agent and to assess that person the penalties provided for hereunder. Notice shall be delivered by United States certified or registered mail or by any other courier or service found by the director to be sufficiently reliable to generate written documentation of mailing, to the last known address of the person as set forth in any filing made by the public charity or shown in its records or as otherwise determined by the director. The notice shall be considered a sufficient notice of the division's intention to assess the penalties and a certificate of the person mailing the notice that it has been mailed in accordance with this section, together with a post office, courier or service receipt of the mailing, shall be considered prima facie evidence thereof and shall be admissible in any court of the commonwealth as to the facts contained therein. Refusal of delivery of the mailing shall not be a defense to the receipt of the notice.
(k) A person served with notice under clause (j) may, within 60 days from the date of the notice, request an opportunity to be heard by the division to present reasons why he should not be determined to be a responsible officer or agent within the meaning of this section. Upon a finding by the division that the person is a responsible officer or agent and has failed, without good cause, to cause the charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor to comply with the requirements of this chapter, any civil penalty that may be assessed against the charitable organization, professional fundraising counsel, commercial co-venturer or professional solicitor may, in the alternative, be assessed against that person. In the case of a charitable organization, the person shall not be entitled to indemnification or reimbursement by or from the charitable organization for the civil penalty.
(l) A person aggrieved by the imposition of a civil penalty under this section may bring a civil action in the nature of certiorari under section 4 of chapter 249; provided, however, that the action shall be commenced within 60 days of the date of the notice of the civil penalty. If a person fails to pay the civil penalty provided herein, the attorney general may initiate a civil action in the superior court to enforce the penalty or to obtain any other relief so required. The action by the attorney general may be initiated, if no action is commenced under section 4 of chapter 249, upon the expiration of the 60 day period to bring such action or, if an action is commenced under said section 4 of said chapter 249, the issuance of a final judicial determination thereon.