Civil penalty
Encyclopedia
A civil penalty or civil fine is a term used to describe when a state
entity, government agency
, or private party seeks monetary relief against an individual as restitution for wrongdoing by the individual. The wrongdoing is typically defined by a codification of legislation
, regulation
s, and decree
s. The civil fine is not considered to be a criminal
punishment
, because it is primarily sought in order to compensate the state for harm done to it, rather than to punish the wrongful conduct. As such, a civil penalty, in itself, will not carry jail time or other legal penalties. For example, if a person were to dump toxic waste in a state park, the state would have the same right to seek to recover the cost of cleaning up the mess as would a private landowner, and to bring the complaint to a court
of law, if necessary.
Civil penalties occupy a strange place in some legal systems - because they are not criminal penalties, the state need not meet a burden of proof that is "beyond a reasonable doubt
"; but because the action is brought by the government, and some civil penalties can run into the millions of dollars, it would be uncomfortable to subject citizens to them by a burden of proof that is merely a "preponderance of the evidence." Therefore, the assessment of most civil penalties requires a finding of "clear and convincing evidence" before a civil defendant will be held liable. A defendant may well raise excuses, justifications
, affirmative defense
s, and procedural defense
s. An administrative law judge
or hearing officer may oversee the proceedings and render a judgment. Judgment is made on the balance of probabilities. Meaning, if it is more than 50% likely that the accused is responsible then the accused shall be found guilty
In some cases, a civil penalty may be supplemented by other legal process, including administrative sanctions or even criminal charges, and their respective appeal
s. For example, failure to pay a fine assessed for a traffic code
violation may result in administrative suspension of a driver's license
, and further driving after suspension may be a criminal offense. On the other hand, a minimal case may be "put on file", or otherwise suspended for a period during which the defendant may be required to avoid further violations, or carry out specific duties (such as making repairs or restitution, or attending supplemental education), after which the matter is dismissed.
In other cases, such as public safety
and consumer protection
violations, the local authorities may revoke permits and licenses, and seek injunction
to stop or remove non-conforming works or goods, in addition to the civil penalty.
Pending or admitted civil violations may also be used as evidence
of responsibility
in a civil suit
. One example is speeding
causing in a car accident
, resulting in a wrongful death claim
. However, the plaintiff may be required to prove causation
through a harm encompassed in the regulations.
It is well established that liquidated damages for breach of contract are void if they seek to punish rather than to compensate for loss. For a contractual "penalty" clause to be valid, one must show that it was drawn up after a bona fide attempt to estimate loss in advance of the breach. For example, a motorway construction contract may have an estimated finish date with a "penalty clause" for every day late; but provided that this date is realistic and the "penalty" is a reasonable approximation of loss, the clause will be valid. The validity of the clause will be advanced if there is an equivalent bonus for finishing early.
Difficulties can arise with fines for wrongful parking (parking in the wrong area, or overstaying). There are three scenarios: (i) parking on public streets; & parking in a private car park either (ii) with permission, or (iii) without permission. If a parking fine is imposed for type (i), since the powers exercised by the local authority have been delegated by Parliament, there is little that one can do, except to seek judicial review and allege disproportionality. If it is type (ii), such as in a supermarket car-park, then contract rules apply. If, say, the cost was £1 for an hour, and you got a £60 ticket for overstaying a further hour, you can legally send them an extra £1, plus (say) £5 as a contribution to their administration expenses. If they are not satisfied, they would have to issue a county court summons, which might not be cost effective.
In type (iii) where one has parked on private land without permission, a typical notice might read: "In parking on this land, you hereby accept that your vehicle will be clamped and a £100 release charged". Although this may seem a simple matter of trespass with an unavoidable fine, it may amount to a case of implied contract (i.e. "if you park here, you agree to pay a penalty"); and such a "penalty" (read "damages") must be proportionate or else the fine will be void. Also, since the penalty notice could have been attached to the windscreen, the clamping of the vehicle may itself be unlawful trespass.
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
entity, government agency
Government agency
A government or state agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of agency types...
, or private party seeks monetary relief against an individual as restitution for wrongdoing by the individual. The wrongdoing is typically defined by a codification of legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
, regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
s, and decree
Decree
A decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
s. The civil fine is not considered to be a criminal
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
, because it is primarily sought in order to compensate the state for harm done to it, rather than to punish the wrongful conduct. As such, a civil penalty, in itself, will not carry jail time or other legal penalties. For example, if a person were to dump toxic waste in a state park, the state would have the same right to seek to recover the cost of cleaning up the mess as would a private landowner, and to bring the complaint to a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
of law, if necessary.
Civil penalties occupy a strange place in some legal systems - because they are not criminal penalties, the state need not meet a burden of proof that is "beyond a reasonable doubt
Beyond a Reasonable Doubt
Beyond a Reasonable Doubt is a 1956 film directed by Fritz Lang and written by Douglas Morrow. The film, considered film noir, was the last American film directed by Lang.-Plot:...
"; but because the action is brought by the government, and some civil penalties can run into the millions of dollars, it would be uncomfortable to subject citizens to them by a burden of proof that is merely a "preponderance of the evidence." Therefore, the assessment of most civil penalties requires a finding of "clear and convincing evidence" before a civil defendant will be held liable. A defendant may well raise excuses, justifications
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
, affirmative defense
Affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
s, and procedural defense
Procedural defense
In jurisprudence, procedural defenses are a form of defense, via which a party argues that it should not be held liable for a legal charge or claim brought against it. In common law jurisdictions the term has applications in both criminal law and civil law...
s. An administrative law judge
Administrative law judge
An administrative law judge in the United States is an official who presides at an administrative trial-type hearing to resolve a dispute between a government agency and someone affected by a decision of that agency. The ALJ is usually the initial trier of fact and decision maker...
or hearing officer may oversee the proceedings and render a judgment. Judgment is made on the balance of probabilities. Meaning, if it is more than 50% likely that the accused is responsible then the accused shall be found guilty
In some cases, a civil penalty may be supplemented by other legal process, including administrative sanctions or even criminal charges, and their respective appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
s. For example, failure to pay a fine assessed for a traffic code
Traffic code
Traffic code refers to the collection of local statutes, regulations, ordinances and rules that have been officially adopted in the United States to govern the orderly operation and interaction of motor vehicles, bicycles, pedestrians and others upon the public ways.The traffic code generally...
violation may result in administrative suspension of a driver's license
Driver's license
A driver's license/licence , or driving licence is an official document which states that a person may operate a motorized vehicle, such as a motorcycle, car, truck or a bus, on a public roadway. Most U.S...
, and further driving after suspension may be a criminal offense. On the other hand, a minimal case may be "put on file", or otherwise suspended for a period during which the defendant may be required to avoid further violations, or carry out specific duties (such as making repairs or restitution, or attending supplemental education), after which the matter is dismissed.
In other cases, such as public safety
Public Safety
Public safety involves the prevention of and protection from events that could endanger the safety of the general public from significant danger, injury/harm, or damage, such as crimes or disasters .-See also:* By nation...
and consumer protection
Consumer protection
Consumer protection laws designed to ensure fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional...
violations, the local authorities may revoke permits and licenses, and seek injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
to stop or remove non-conforming works or goods, in addition to the civil penalty.
Pending or admitted civil violations may also be used as evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
of responsibility
Moral responsibility
Moral responsibility usually refers to the idea that a person has moral obligations in certain situations. Disobeying moral obligations, then, becomes grounds for justified punishment. Deciding what justifies punishment, if anything, is a principle concern of ethics.People who have moral...
in a civil suit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
. One example is speeding
Speed limit
Road speed limits are used in most countries to regulate the speed of road vehicles. Speed limits may define maximum , minimum or no speed limit and are normally indicated using a traffic sign...
causing in a car accident
Car accident
A traffic collision, also known as a traffic accident, motor vehicle collision, motor vehicle accident, car accident, automobile accident, Road Traffic Collision or car crash, occurs when a vehicle collides with another vehicle, pedestrian, animal, road debris, or other stationary obstruction,...
, resulting in a wrongful death claim
Wrongful death claim
Wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute...
. However, the plaintiff may be required to prove causation
Causation (law)
Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is...
through a harm encompassed in the regulations.
Civil Penalties in England
The concept of civil penalties in English is in a state of flux. In contract, damages is a remedy to provide monetary compensation for loss; and damages may be unliquidated (general damages), or liquidated (pre-determined). In the absence of an out-of court settlement, unliquidated damages must be ascertained by a court or tribunal, whereas liquidated damages will be determined by reference to the contract or to a mutually agreed arbitrator. The purpose of liquidated damages is to provide certainty and to avoid both the bother and cost of legal proceedings.It is well established that liquidated damages for breach of contract are void if they seek to punish rather than to compensate for loss. For a contractual "penalty" clause to be valid, one must show that it was drawn up after a bona fide attempt to estimate loss in advance of the breach. For example, a motorway construction contract may have an estimated finish date with a "penalty clause" for every day late; but provided that this date is realistic and the "penalty" is a reasonable approximation of loss, the clause will be valid. The validity of the clause will be advanced if there is an equivalent bonus for finishing early.
Difficulties can arise with fines for wrongful parking (parking in the wrong area, or overstaying). There are three scenarios: (i) parking on public streets; & parking in a private car park either (ii) with permission, or (iii) without permission. If a parking fine is imposed for type (i), since the powers exercised by the local authority have been delegated by Parliament, there is little that one can do, except to seek judicial review and allege disproportionality. If it is type (ii), such as in a supermarket car-park, then contract rules apply. If, say, the cost was £1 for an hour, and you got a £60 ticket for overstaying a further hour, you can legally send them an extra £1, plus (say) £5 as a contribution to their administration expenses. If they are not satisfied, they would have to issue a county court summons, which might not be cost effective.
In type (iii) where one has parked on private land without permission, a typical notice might read: "In parking on this land, you hereby accept that your vehicle will be clamped and a £100 release charged". Although this may seem a simple matter of trespass with an unavoidable fine, it may amount to a case of implied contract (i.e. "if you park here, you agree to pay a penalty"); and such a "penalty" (read "damages") must be proportionate or else the fine will be void. Also, since the penalty notice could have been attached to the windscreen, the clamping of the vehicle may itself be unlawful trespass.
See also
- Building codeBuilding codeA building code, or building control, is a set of rules that specify the minimum acceptable level of safety for constructed objects such as buildings and nonbuilding structures. The main purpose of building codes are to protect public health, safety and general welfare as they relate to the...
, as an example for public safety - Federal Trade CommissionFederal Trade CommissionThe Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
, which uses civil penalties for consumer protectionConsumer protectionConsumer protection laws designed to ensure fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional...