(1) Any public utility that violates or fails to comply with any provision of the state constitution or of articles 1 to 7 of this title 40 or that fails, omits, or neglects to obey, observe, or comply with any order, decision, decree, rule, direction, demand, or requirement of the commission or any part or provision thereof, except an order for the payment of money, in a case in which a penalty has not been provided for the public utility, is subject to a penalty of not more than twenty thousand dollars per offense for each day that the offense continues. (1.5) (a) Any proposed penalty is subject to a finding by the commission of customer harm that is commensurate with the amount of the penalty levied. In determining the amount of a penalty or whether any penalty is levied, the commission shall also consider factors including: (I) The size of the utility; (II) Factors influencing the violation; (III) The utility's previous history of any similar violations; (IV) Remedial measures; and (V) Any other factors that may mitigate any harm to customers. (b) The commission shall adopt rules to annually adjust the maximum per-day penalty amount set forth in subsection (1) of this section based on the annual percentage change in the United States department of labor's bureau of labor statistics consumer price index for the Denver-Aurora-Lakewood area for all items paid by all urban consumers, or its successor index. (2) Every violation of the provisions of articles 1 to 7 of this title or of any order, decision, decree, rule, direction, demand, or requirement of the commission or any part or portion thereof, except an order for the payment of money, by any corporation or person is a separate and distinct offense, and, in case of a continuing violation, each day's continuance thereof shall be deemed a separate and distinct offense. (3) In construing and enforcing the provisions of articles 1 to 7 of this title relating to penalties, the act, omission, or failure of any officer, agent, or employee of any public utility, acting within the scope of his official duties or employment, in every case shall be deemed the act, omission, or failure of such public utility. (4) Any penalty that the commission assesses against a utility under this section is not recoverable as an expense payable by the utility's ratepayers.
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