DOB: Digital In-Motion Consent Order

* * * * * * * * * * * * * * * * * *

IN THE MATTER OF:
 

DIGITAL IN-MOTION, LLC

PAUL H. COUTURE

(Collectively "Respondents")  

* * * * * * * * * * * * * * * * * *

*
*
*
*
*
*
*
*
*
*

CONSENT ORDER

DOCKET NO. CF-2010-874-B

I. PRELIMINARY STATEMENT

WHEREAS, the Banking Commissioner (“Commissioner”) is charged with the administration of Chapter 672c of the General Statutes of Connecticut, the Connecticut Business Opportunity Investment Act (“Act”);
 
WHEREAS, the Commissioner, through the Securities and Business Investments Division (“Division”) of the Department of Banking, conducted an investigation pursuant to Section 36b-71(a) of the Act into the activities of Respondents to determine whether they, or either of them, had violated, were violating or were about to violate provisions of the Act (“Investigation”);
 
WHEREAS, as a result of the Investigation, on October 22, 2010, the Commissioner, acting pursuant to Section 36b-72 of the 2010 Supplement to the General Statutes (“2010 Supplement”), issued an Order to Cease and Desist (“Order”), Notice of Intent to Fine and Notice of Right to Hearing against Respondents (collectively “Notice”), which Notice is incorporated by reference herein;
 
WHEREAS, the Notice alleged that Respondents offered and sold an unregistered business opportunity in or from Connecticut on at least two occasions to purchaser-investors in violation of Section 36b-67 of the Act;
 
WHEREAS, the Notice stated that the Order shall remain in effect and become permanent against any Respondent that fails to request a hearing within the prescribed time period or fails to appear at such hearing, and that the Commissioner may order that the maximum fine be imposed upon any Respondent that fails to request a hearing within the prescribed time period or fails to appear at any such hearing;
 
WHEREAS, on October 23, 2010, the Notice was received by Respondents;
 
WHEREAS, on November 2, 2010, Respondents requested a hearing on the matters alleged in the Notice (“Hearing”);
 
WHEREAS, Section 36b-72(d) of the 2010 Supplement provides, in relevant part, that “[a]ny time after the issuance of an order or notice provided for in subsection (a) or (b) of this section, the commissioner may accept an agreement by any respondent named in such order or notice to enter into a written consent order in lieu of an adjudicative hearing”;
 
WHEREAS, an administrative proceeding initiated under Section 36b-72 of the 2010 Supplement would constitute a “contested case” within the meaning of Section 4-166(2) of the General Statutes of Connecticut;
 
WHEREAS, Section 4-177(c) of the General Statutes of Connecticut and Section 36a-1-55(a) of the Regulations of Connecticut State Agencies provide that a contested case may be resolved by consent order, unless precluded by law;
 
WHEREAS, Respondents and the Commissioner now desire to resolve the matters alleged in the Notice without the need for further administrative proceedings;
 
WHEREAS, Respondents agree that the Notice may be used in construing the terms of this Consent Order and agree to the language in this Consent Order;
 
WHEREAS, Respondents represented that they have made only two sales of unregistered business opportunities from Connecticut, and that they have not made any sales of business opportunities to persons in Connecticut;
 
AND WHEREAS, Respondents have submitted evidence demonstrating economic hardship, such that the Commissioner believes that Respondents have limited capability of paying the fine that otherwise would have been assessed against them pursuant to the Notice.   

II. CONSENT TO WAIVER OF PROCEDURAL RIGHTS

WHEREAS, Respondents, through their execution of this Consent Order, voluntarily waive the following rights:

1. To be afforded an opportunity for a hearing within the meaning of Section 36b-72 of the 2010 Supplement and Section 4-177(a) of the General Statutes of Connecticut;
2. To present evidence and argument and to otherwise avail themselves of Section 36b-72 of the 2010 Supplement and Section 4-177c(a) of the General Statutes of Connecticut;
3. To present their position in a hearing in which they are represented by counsel;
4. To have a written record of the hearing made and a written decision issued by a hearing officer; and
5. To seek judicial review of, or otherwise challenge or contest the matters described herein, including the validity of this Consent Order.

III. ACKNOWLEDGEMENT OF THE COMMISSIONER'S ALLEGATIONS

WHEREAS, Respondents, through their execution of this Consent Order, acknowledge and admit the following allegations of the Commissioner, which are sufficient for the Commissioner to enter an order to cease and desist and an order imposing an administrative fine against Respondents:

1. From at least June 2007 to the present, Respondents sold Digital In-Motion, LLC’s unregistered business opportunities to at least two purchasers in violation of Section 36b-67 of the Act, which constitutes a basis for an order to cease and desist pursuant to Section 36b-72(a) of the 2010 Supplement, and an order imposing fine pursuant to Section 36b-72(b) of the 2010 Supplement.

WHEREAS, the Commissioner would have the authority to enter findings of fact and conclusions of law after granting Respondents an opportunity for a hearing;

AND WHEREAS, Respondents acknowledge the possible consequences of an administrative hearing and voluntarily consent to the entry of the sanctions described below.

IV. CONSENT TO ENTRY OF SANCTIONS

WHEREAS, Respondents, through their execution of this Consent Order, consent to the Commissioner’s entry of a Consent Order imposing on them the following sanctions:

1. The Order to Cease and Desist set forth in the Notice shall become permanent upon the issuance of this Consent Order;
2. No later than the date this Consent Order is issued by the Commissioner, Respondents shall remit to the Department of Banking, by cashier’s check, certified check or money order made payable to “Treasurer, State of Connecticut”, the sum of Two Hundred Fifty Dollars ($250) as an administrative fine;
3. For a period of five (5) years commencing on the date this Consent Order is issued by the Commissioner, Respondents are barred from offering or selling any “business opportunity”, as defined in Section 36b-61(2) of the 2010 Supplement, in this state within the meaning of Section 36b-75 of the Act; and
4. Prior to the offer or sale of a business opportunity in or from Connecticut by Respondents or their successors after the expiration of the five (5) year bar referenced in paragraph 3 of Section IV of this Consent Order, Respondents shall retain counsel familiar with the regulation of business opportunities to ensure compliance of their activities with business opportunity laws and regulations, including, but not limited to, the Act.

AND WHEREAS, Respondents specifically assure the Commissioner that none of the violations alleged in the Notice shall occur in the future.

V. CONSENT ORDER

NOW THEREFORE, the Commissioner enters the following:

1. The Sanctions set forth above be and are hereby entered;
2. Entry of this Consent Order by the Commissioner is without prejudice to the right of the Commissioner to take enforcement action against Respondents based upon a violation of this Consent Order or the matters underlying its entry, if the Commissioner determines that compliance with the terms herein is not being observed or if any representations made by Respondents and reflected herein are subsequently discovered to be untrue; and
3. This Consent Order shall become final when issued.


 
Issued at Hartford, Connecticut      _______/s/_________
this 9th day of December 2010.      Howard F. Pitkin 
    Banking Commissioner 


CONSENT TO ENTRY OF ORDER

I, Paul H. Couture, state on behalf of Digital In-Motion, LLC, that I have read the foregoing Consent Order; that I know and fully understand its contents; that I am authorized to execute this Consent Order on behalf of Digital In-Motion, LLC; that Digital In-Motion, LLC agrees freely and without threat or coercion of any kind to comply with the terms and conditions stated herein; and that Digital In-Motion, LLC voluntarily consents to the issuance of this Consent Order.     

 
    Digital In-Motion, LLC
   
              
By: ______/s/_____________
Paul H. Couture
  Managing Member


State of:  Connecticut

County of:  Fairfield

On this the 8 day of December 2010, before me, Alison Bookstone, the undersigned officer, personally appeared Paul H. Couture, who acknowledged himself to be the Managing Member of Digital In-Motion, LLC, a limited liability company, and that he, as such Managing Member, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of the limited liability company by himself as Managing Member.
 
In witness whereof I hereunto set my hand.


_______________/s/___________________________
Notary Public/Commissioner of the Superior Court
Date Commission Expires:  January 31, 2015

CONSENT TO ENTRY OF ORDER

I, Paul H. Couture, state that I have read the foregoing Consent Order; that I know and fully understand its contents; that I agree freely and without threat or coercion of any kind to comply with the terms and conditions stated herein; and I consent to the issuance of this Consent Order.     

 
 
         
______/s/_____________
Paul H. Couture


State of:  Connecticut

County of:  Fairfield

On this the 8 day of December 2010, before me, Alison Bookstone, the undersigned officer, personally appeared Paul H. Couture, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained.
 
In witness whereof I hereunto set my hand.


_______________/s/___________________________
Notary Public/Commissioner of the Superior Court
Date Commission Expires:  January 31, 2015



  

Administrative Orders and Settlements