§1490s. Enforcement provisions
(a) Equity skimming
(1) Criminal penalty
Whoever, as an owner, agent, employee, or manager, or is otherwise in custody, control, or possession of property that is security for a loan made or guaranteed under this subchapter, willfully uses, or authorizes the use, of any part of the rents, assets, proceeds, income, or other funds derived from such property, for any purpose other than to meet actual, reasonable, and necessary expenses of the property, or for any other purpose not authorized by this subchapter or the regulations adopted pursuant to this subchapter, shall be fined under title 18 or imprisoned not more than 5 years, or both.
(2) Civil sanctions
An entity or individual who as an owner, operator, employee, or manager, or who acts as an agent for a property that is security for a loan made or guaranteed under this subchapter where any part of the rents, assets, proceeds, income, or other funds derived from such property are used for any purpose other than to meet actual, reasonable, and necessary expenses of the property, or for any other purpose not authorized by this subchapter or the regulations adopted pursuant to this subchapter, shall be subject to a fine of not more than $25,000 per violation. The sanctions provided in this paragraph may be imposed in addition to any other civil sanctions or civil monetary penalties authorized by law.
(b) Civil monetary penalties
(1) In general
The Secretary may, after notice and opportunity for a hearing, impose a civil monetary penalty in accordance with this subsection against any individual or entity, including its owners, officers, directors, general partners, limited partners, or employees, who knowingly and materially violate, or participate in the violation of, the provisions of this subchapter, the regulations issued by the Secretary pursuant to this subchapter, or agreements made in accordance with this subchapter, by-
(A) submitting information to the Secretary that is false;
(B) providing the Secretary with false certifications;
(C) failing to submit information requested by the Secretary in a timely manner;
(D) failing to maintain the property subject to loans made or guaranteed under this subchapter in good repair and condition, as determined by the Secretary;
(E) failing to provide management for a project which received a loan made or guaranteed under this subchapter that is acceptable to the Secretary; or
(F) failing to comply with the provisions of applicable civil rights statutes and regulations.
(2) Conditions for renewal or extension
The Secretary may require that expiring loan or assistance agreements entered into under this subchapter shall not be renewed or extended unless the owner executes an agreement to comply with additional conditions prescribed by the Secretary, or executes a new loan or assistance agreement in the form prescribed by the Secretary.
(3) Amount
(A) In general
The amount of a civil monetary penalty imposed under this subsection shall not exceed the greater of-
(i) twice the damages the Department of Agriculture, the guaranteed lender, or the project that is secured for a loan under this section suffered or would have suffered as a result of the violation; or
(ii) $50,000 per violation.
(B) Determination
In determining the amount of a civil monetary penalty under this subsection, the Secretary shall take into consideration-
(i) the gravity of the offense;
(ii) any history of prior offenses by the violator (including offenses occurring prior to the enactment of this section);
(iii) the ability of the violator to pay the penalty;
(iv) any injury to tenants;
(v) any injury to the public;
(vi) any benefits received by the violator as a result of the violation;
(vii) deterrence of future violations; and
(viii) such other factors as the Secretary may establish by regulation.
(4) Payment of penalties
No payment of a penalty assessed under this section may be made from funds provided under this subchapter or from funds of a project which serve as security for a loan made or guaranteed under this subchapter.
(5) Remedies for noncompliance
(A) Judicial intervention
If a person or entity fails to comply with a final determination by the Secretary imposing a civil monetary penalty under this subsection, the Secretary may request the Attorney General of the United States to bring an action in an appropriate United States district court to obtain a monetary judgment against such individual or entity and such other relief as may be available. The monetary judgment may, in the court's discretion, include the attorney's fees and other expenses incurred by the United States in connection with the action.
(B) Reviewability of determination
In an action under this paragraph, the validity and appropriateness of a determination by the Secretary imposing the penalty shall not be subject to review.
(July 15, 1949, ch. 338, title V, §543, as added
Editorial Notes
References in Text
Enactment of this section, referred to in subsec. (b)(3)(B)(ii), means enactment of