CO Code § 6-1-112 (2021)
2021 Colorado Code|Title 6 - Consumer and Commercial Affairs|Article 1 - Colorado Consumer Protection Act|Part 1 - Consumer Protection - General|§ 6-1-112. Civil Penalties

  The attorney general or a district attorney may bring a civil action on behalf of the state to seek the imposition of civil penalties as follows:   Any person who violates or causes another to violate any provision of this article 1 shall forfeit and pay to the general fund of this state a civil penalty of not more than twenty thousand dollars for each such violation. For purposes of this subsection (1)(a), a violation of any provision shall constitute a separate violation with respect to each consumer or transaction involved.    Any person who violates or causes another to violate any court order or injunction issued pursuant to this article shall forfeit and pay to the general fund of this state a civil penalty of not more than ten thousand dollars for each such violation. For the purposes of this section, the court issuing the order or injunction shall retain jurisdiction, and the cause shall be continued. Upon violation, the attorney general or a district attorney may petition the court for the recovery of the civil penalty. Such civil penalty shall be in addition to any other penalty or remedy available for the enforcement of the provisions of this article and any court order or injunction.    Any person who violates or causes another to violate any provision of this article 1, where such violation was committed against an elderly person, shall forfeit and pay to the general fund of the state a civil penalty of not more than fifty thousand dollars for each such violation. For purposes of this subsection (1)(c), a violation of any provision of this article 1 is a separate violation with respect to each elderly person involved.    Any person who violates or causes another to violate the provisions of section 6-1-105 (1)(fff) by distributing, dispensing, displaying for sale, offering for sale, attempting to sell, or selling any product that is labeled as a “bath salt” or any other trademark if the product contains any amount of any cathinones, as defined in section 18-18-102 (3.5), C.R.S., shall forfeit and pay to the general fund of the state a civil penalty of not less than ten thousand dollars and not more than five hundred thousand dollars for each such violation; except that the person shall forfeit and pay to the general fund of the state a civil penalty of not less than twenty-five thousand dollars and not more than five hundred thousand dollars for each such violation if the person distributes, dispenses, displays for sale, offers for sale, attempts to sell, or sells the product to a minor under the age of eighteen and the person is at least eighteen years of age and at least two years older than the minor.    Any person who violates or causes another to violate the provisions of section 6-1-105 (1)(ggg) by distributing, dispensing, displaying for sale, offering for sale, attempting to sell, or selling any product that contains any amount of any synthetic cannabinoid, as defined in section 18-18-102 (34.5), C.R.S., shall forfeit and pay to the general fund of the state a civil penalty of not less than ten thousand dollars and not more than five hundred thousand dollars for each violation; except that the person shall forfeit and pay to the general fund of the state a civil penalty of not less than twenty-five thousand dollars and not more than five hundred thousand dollars for each violation if the person distributes, dispenses, displays for sale, offers for sale, attempts to sell, or sells the product to a minor under the age of eighteen and the person is at least eighteen years of age and at least two years older than the minor.      Any person who violates section 6-16-111 (1)(a) to (1)(g) shall forfeit and pay a civil penalty of up to ten thousand dollars for each violation, with a cap of three million dollars for a related series of violations. In determining a civil penalty under this subsection (1)(f), the court shall adjust the limitations cap for inflation based on the cumulative annual adjustment for inflation for each full year since August 10, 2016. The adjustments made under this subsection (1)(f)(I) are rounded upward or downward to the nearest ten-dollar increment. As used in this subsection (1)(f)(I), “inflation” means the annual percentage change in the United States department of labor's bureau of labor statistics consumer price index for Denver-Aurora-Lakewood for all items paid by all urban consumers, or its applicable predecessor or successor index. (f) (I) Any person who violates section 6-16-111 (1)(a) to (1)(g) shall forfeit and pay a civil penalty of up to ten thousand dollars for each violation, with a cap of three million dollars for a related series of violations. In determining a civil penalty under this subsection (1)(f), the court shall adjust the limitations cap for inflation based on the cumulative annual adjustment for inflation for each full year since August 10, 2016. The adjustments made under this subsection (1)(f)(I) are rounded upward or downward to the nearest ten-dollar increment. As used in this subsection (1)(f)(I), “inflation” means the annual percentage change in the United States department of labor's bureau of labor statistics consumer price index for Denver-Aurora-Lakewood for all items paid by all urban consumers, or its applicable predecessor or successor index.    Any civil penalty recovered under this paragraph (f) is paid to the attorney general and held as custodial money. The attorney general shall petition the district court having jurisdiction over the underlying civil enforcement action for approval to grant the custodial money to a charity in accordance with the cy pres doctrine within two years after receipt by the attorney general.          For accounting purposes, a fine or penalty received by the state under this article 1 is a damage award.      History. Source: L. 69: P. 376, § 9. C.R.S. 1963: § 55-5-9. L. 77: Entire section amended, p. 351, § 8, effective July 1. L. 87: Entire section amended, p. 359, § 8, effective July 1. L. 2000: (3) added, p. 1107, § 2, effective August 2. L. 2009: Entire section amended,(SB 09-054), ch. 138, p. 596, § 1, effective August 5. L. 2012: (1)(d) added,(HB 12-1310), ch. 268, p. 1406, § 33, effective June 7. L. 2014: (1)(d) amended and (1)(e) added,(HB 14-1037), ch. 358, p. 1682, § 3, effective August 6. L. 2016: (1)(f) added,(HB 16-1129), ch. 262, p. 1075, § 1, effective August 10. L. 2018: (1)(f)(I) amended,(HB 18-1375), ch. 274, p. 1694, § 1, effective May 29. L. 2019: (1)(a) and (1)(c) amended and (2) added,(HB 19-1289), ch. 268, p. 2516, § 3, effective May 23. History. Source: L. 69: P. 376, § 9. C.R.S. 1963: § 55-5-9. L. 77: Entire section amended, p. 351, § 8, effective July 1. L. 87: Entire section amended, p. 359, § 8, effective July 1. L. 2000: (3) added, p. 1107, § 2, effective August 2. L. 2009: Entire section amended,(SB 09-054), ch. 138, p. 596, § 1, effective August 5. L. 2012: (1)(d) added,(HB 12-1310), ch. 268, p. 1406, § 33, effective June 7. L. 2014: (1)(d) amended and (1)(e) added,(HB 14-1037), ch. 358, p. 1682, § 3, effective August 6. L. 2016: (1)(f) added,(HB 16-1129), ch. 262, p. 1075, § 1, effective August 10. L. 2018: (1)(f)(I) amended,(HB 18-1375), ch. 274, p. 1694, § 1, effective May 29. L. 2019: (1)(a) and (1)(c) amended and (2) added,(HB 19-1289), ch. 268, p. 2516, § 3, effective May 23.    ANNOTATION   The general assembly expressly stated its intent that penalties imposed under subsection (1) are civil in nature. Moreover, the fact that the legislature provided that civil enforcement proceedings are to be governed by the Colorado rules of civil procedure reinforces the legislature's intent to create a civil penalty. Duncan v. Norton, 974 F. Supp. 1328 (D. Colo. 1997 ).   Subsection (1) aids the Colorado Consumer Protection Act's (CCPA's) overall remedial purpose of protecting the state's consumers against deceptive trade practices and is therefore properly characterized as serving primarily a remedial, and also a punitive, purpose. Duncan v. Norton, 974 F. Supp. 1328 (D. Colo. 1997 ).   Federal court declined to find that any amount of penalty imposed in the civil enforcement proceeding under subsection (1) would be so far criminal in nature as to preclude the attorney general from seeking penalties by use of plaintiff's prior compelled testimony. Duncan v. Norton, 974 F. Supp. 1328 (D. Colo. 1997 ).   Civil penalties based on the dissemination of misleading information rather than on the receipt of the information or on a consumer acting on the information effectuate the purpose of the statute. May Dept. Stores v. State, 863 P.2d 967 (Colo. 1993).   Statute is intended to punish wrongdoer not compensate injured party. May Dept. Stores v. State, 863 P.2d 967 (Colo. 1993).   In a civil enforcement action, the state must prove the first three elements of a private right of action: (1) an unfair or deceptive practice; (2) in the course of defendant's business; (3) that significantly impacted the public as actual or potential consumers. State ex rel. Weiser v. Castle Law Group, 2019 COA 49 , 457 P.3d 699.   The sole fact that a law firm's clients included quasi-public entities Fannie Mae and Freddie Mac did not establish a significant impact to the public. The deceptive practice was not directed to the market generally; the taxpayers did not hire the law firm to perform the services involved; the misrepresentation was made to the entities only in the context of a private agreement between the firm and the entities; and the entities are not the type of consumers the statute was intended to protect. State ex rel. Weiser v. Castle Law Group, 2019 COA 49 , 457 P.3d 699.   “Each consumer or transaction” contemplates two separate violations, one involving a consumer and one involving a transaction. A consumer relying or acting upon an advertisement is a separate and distinct violation from the act of advertising. Consumer involvement almost necessarily involves injury while a transaction does not have to cause actual injury to the consumer to be a violation. May Dept. Stores v. State, 863 P.2d 967 (Colo. 1993).   Borrower's affidavits were inadmissible hearsay and could not be used to determine the remedy under the CCPA. Witnesses' testimony supported finding of a violation of the CCPA, but court's reliance on the affidavits to determine awards was in error. Though defendant had an opportunity to depose the affiants, this fact alone does not make the affidavits admissible, and no hearsay exception existed. People v. Shifrin, 2014 COA 14 , 342 P.3d 506.   This section does not require an actual injury or loss to a customer before a civil penalty may be awarded. State v. May Dept. Stores Co., 849 P.2d 802 (Colo. App. 1992).   In determining the amount of a civil penalty award, the court should apply the following concepts: (a) The good or bad faith of the defendant; (b) the injury to the public; (c) the defendant's ability to pay; and (d) the desire to eliminate the benefits derived by violations of the CCPA. State v. May Dept. Stores Co., 849 P.2d 802 (Colo. App. 1992).   Because the court should consider several factors in its determination of the amount of civil penalties under this section, an evidentiary hearing is required. People v. Wunder, 2016 COA 46 , 371 P.3d 785.   Civil penalties awarded under subsection (1) are nondischargeable under 11 U.S.C. § 523(a)(7). The amounts awarded are penalties within the meaning of 11 U.S.C. § 523(a)(7). In re Jensen, 395 B.R. 472 (Bankr. D. Colo. 2008 ).   Three-year statute of limitations in § 6-1-115 applies to a claim under this section. The more specific statute controls over the more general provisions of § 13-80-103 (1)(d) . State ex rel. Weiser v. Castle Law Group, 2019 COA 49 , 457 P.3d 699.