§486-36 Remedies.

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

§486-36 Remedies. Notwithstanding other penalties provided in this chapter, including but not limited to penalties provided under section 486-32, the board may enforce this chapter in both administrative and judicial proceedings:

(1)Administrative. If the administrator determines that any person is violating any provision of this chapter or any rule adopted thereunder, or any variance or exemption or waiver issued pursuant thereto, the administrator may have that person served with a notice of violation and an order. The notice shall specify the alleged violation. The order may require that the alleged violator do any or all of the following:

(A)Cease and desist from the violation;

(B)Pay an administrative penalty not to exceed $2,000 for each day of violation;

(C)Correct the violation at the alleged violator's own expense; or

(D)Appear before the board at a time and place specified in the order and answer the charges complained of.

The order shall become final twenty calendar days after service unless within those twenty calendar days the alleged violator requests in writing a hearing before the board. Upon such request the board shall specify a time and place for the alleged violator to appear. After a hearing pursuant to this paragraph, the board may affirm, modify, or rescind the order as appropriate.

Factors to be considered in imposing the administrative penalty may include the nature and history of the violation and any prior violation and the opportunity, difficulty, and history of corrective action. It is presumed that the violator's economic and financial conditions allow payment of the penalty and the burden of proof to the contrary is on the violator; and

(2)Judicial. The board may institute a civil action in any court of competent jurisdiction for the enforcement of any order issued pursuant to this section. In any judicial proceeding to enforce the administrative penalty imposed pursuant to this chapter, the board shall be required to show that:

(A)Notice was given;

(B)A hearing was held or the time granted for requesting a hearing had expired without such a request;

(C)The administrative penalty was imposed; and

(D)The penalty imposed remains unsatisfied.

The board may also institute a civil action in any court of competent jurisdiction for injunctive relief to enjoin violation of any order issued or rule adopted pursuant to this chapter, in addition to any other remedy or penalty provided for under this chapter. [L 1991, c 153, §2; am L 1998, c 192, §2; am L 2005, c 22, §34]

Case Notes

Where plaintiff claimed that defendant, a snack food manufacturer, violated §486-119 by misrepresenting through deceptive advertising and labeling that its Hawaiian brand snacks originated from Hawaii, the court found that plaintiff did not have a private cause of action under this section, and the absence of a provision authorizing a private right of action suggested that the legislature did not contemplate one. Rather, the express provisions of this section limit causes of action to the board of agriculture. 390 F. Supp. 3d 1231 (2019).