191—106.2 (17A,523A,82GA,SF559) Penalties. Persons violating Iowa Code chapter 523A or rules adopted or orders issued pursuant thereto may be subject to one or more of the following penalties.
	 106.2(1) Criminal penalties. A person who willfully violates Iowa Code section 523A.501(1) as amended by 2007 Iowa Acts, Senate File 559, section 16, concerning the requirement for a preneed seller license, or Iowa Code section 523A.502(1) as amended by 2007 Iowa Acts, Senate File 559, section 17, concerning the requirement for a sales agent license, is guilty of a Class D felony. Licensed and unlicensed persons who violate other provisions of Iowa Code chapter 523A and rules adopted or orders issued pursuant to Iowa Code chapter 523A including, but not limited to, a failure to properly place trust funds into trust, pursuant to Iowa Code section 523A.201 as amended by 2007 Iowa Acts, Senate File 559, sections 6, 7 and 8, Iowa Code section 523A.202 as amended by 2007 Iowa Acts, Senate File 559, section 9, Iowa Code section 523A.404 as amended by 2007 Iowa Acts, Senate File 559, sections 14, 15 and 62, and Iowa Code section 523A.405 as amended by 2007 Iowa Acts, Senate File 559, sections 63 and 64, are subject to prosecution for crimes including, but not limited to, fraudulent practice under Iowa Code section 523A.703, theft under Iowa Code chapter 714, or ongoing criminal conduct under Iowa Code chapter 706A. 191—Chapters 100 through 106 do now limit the power of the state to punish any person for any conduct which constitutes a crime under any other statute.
	 106.2(2) Consumer fraud Act. A violation by a licensed or unlicensed person of Iowa Code chapter 523A, 2007 Iowa Acts, Senate File 559, 191—Chapters 100 through 106, or an order issued pursuant to those chapters, is a violation of the Iowa consumer fraud Act, Iowa Code sections 714.16 and 714.16A.
	 106.2(3) Administrative sanctions.
	  a.   	 Pursuant to Iowa Code section 523A.204(4) as amended by 2007 Iowa Acts, Senate File 559, section 11, and 2007 Iowa Acts, Senate File 559, section 18, the failure of a licensee to timely file an annual report shall result in an administrative penalty of $500. The license is suspended on the date the annual report was due until the overdue report is filed and the administrative penalty paid. The licensee is not authorized to solicit or execute any purchase agreement under Iowa Code chapter 523A and 2007 Iowa Acts, Senate File 559, until the license has been reinstated.
	  b.   	 If the commissioner issues or renews a license and subsequently determines that payment for the license or renewal was returned by a bank without payment to the commissioner, or that the credit card company does not approve or cancels or refuses amounts charged to the credit card, the license shall be immediately suspended until the payments are made and any fees or penalties charged by the commissioner are paid, at which time the license may be reinstated at the request of the applicant.
	  c.   	 If the commissioner issues or renews a sales agent license and subsequently determines that the sales agent is not appointed by a preneed seller, the license shall be immediately suspended until the sales agent obtains such an appointment and provides satisfactory evidence to the commissioner of the appointment, at which time the license may be reinstated at the request of the sales agent.
	  d.   	 The commissioner may impose the following disciplinary sanctions, alone or in combination, against a licensee or as a condition of licensure of an applicant for an initial or renewal license:
	 (1) 	 Issue a warning letter or a letter of reprimand;
	 (2) 	 Require additional education or training;
	 (3) 	 Order mediation pursuant to Iowa Code section 523A.804 as amended by 2007 Iowa Acts, Senate File 559, section 72;
	 (4) 	 Issue a cease and desist order pursuant to Iowa Code section 523A.805 or Iowa Code section 523A.807 as amended by 2007 Iowa Acts, Senate File 559, section 29;
	 (5) 	 Require certain specified procedures or methods of operation;
	 (6) 	 Order the payment of consumer restitution;
	 (7) 	 Place a licensee on probationary status with or without the imposition of reasonable conditions to control or monitor conduct, such as periodic reports;
	 (8) 	 Refuse to issue or renew a license;
	 (9) 	 Suspend a license for an indefinite or specific period of time;
	 (10) 	 Revoke a license;
	 (11) 	 Accept the voluntary surrender of a license;
	 (12) 	 Impose costs associated with the commissioner’s investigation and enforcement activities;
	 (13) 	 Impose civil penalties pursuant to 2007 Iowa Acts, Senate File 559, section 29, for violation of Iowa Code section 523A.201, 523A.202, 523A.401 to 523A.405, 523A.501 or 523A.502; or
	 (14) 	 Any other sanction allowed by law, as the commissioner deems appropriate.
	  e.   	 A person with an inactive, expired, or suspended license is subject to disciplinary action, injunctive action, criminal sanctions and any other available legal remedies in the event of any violation of Iowa Code chapter 523A, 2007 Iowa Acts, Senate File 559, or any rules or orders adopted thereto.
	  f.   	 In addition, or as an alternative to the administrative process described in these rules, the commissioner may seek an injunction in district court, refer the matter for criminal prosecution, enter into a consent agreement, issue an informal cautionary letter, refer the matter to the attorney general, or refer the matter to a licensing entity with regulatory authority and jurisdiction over the unlicensed person, such as the mortuary science board established under Iowa Code chapter 156.
	  g.   	 The following factors may be considered by the commissioner in determining the nature and severity of the disciplinary sanction to be imposed:
	 (1) 	 The facts of the particular violation, such as the circumstances leading to the violation, the severity of the infraction, and the clarity of the issues, laws and rules involved;
	 (2) 	 Evidence that the infraction is not an isolated event and is part of a widespread practice;
	 (3) 	 Evidence that the acts or practices were willful and intentional;
	 (4) 	 The economic benefits gained by the licensee or applicant as a result of the infraction;
	 (5) 	 Evidence that the infraction occurred while the licensee was on probation or had an inactive or suspended license;
	 (6) 	 The number of prior warning letters or reprimand letters;
	 (7) 	 The number of complaints;
	 (8) 	 The number of prior violations, especially evidence of repetitive violations of a like kind;
	 (9) 	 The seriousness of prior complaints or violations;
	 (10) 	 The length of time since the unlawful practice occurred;
	 (11) 	 Whether the violation involved an element of deception;
	 (12) 	 Whether the unlawful practice violated a prior order of the commissioner, court order, cease and desist agreement, consent order, or similar document;
	 (13) 	 Whether the person acted in bad faith;
	 (14) 	 The extent to which the licensee or applicant cooperated with the commissioner;
	 (15) 	 Evidence of reform or remedial action and whether reform or remedial action occurred prior to the commissioner’s involvement with the fact situation;
	 (16) 	 The amount of restitution paid or to be paid;
	 (17) 	 The risk of harm created by the acts or practices involved in the infraction;
	 (18) 	 The public interest in ensuring competency and a high standard of ethical and professional conduct by licensees;
	 (19) 	 The public interest in protecting consumers and preventing the acts or practices involved in the infraction;
	 (20) 	 Whether the penalty will act as a substantial deterrent and reduce the likelihood of future violations; and
	 (21) 	 Any other extenuating facts or other countervailing considerations.