Current through Register 1531, September 27, 2024
(1) The Commission has the authority to
administer the administrative hearing process under M.G.L. c. 94G, §
4(a)(xxiv) and (g).
(2) A Licensee
or Host Community shall be afforded a hearing on any adverse action taken
pursuant to:
(a)
935
CMR 500.360;
(b)
935
CMR 500.370;
(c)
935
CMR 500.450; or
(d) Any other notice of the Commission that
specifies that the Licensee, Registrant, or Host Community has a right to
challenge the findings of fact and conclusions of law set forth in the
Commission's notice using the process set forth in
935
CMR 500.500.
(3)
Notice(s).
(a) Notice of Violation(s) includes a notice
issued in accordance with
935
CMR 500.360 and
500.370.
(b)
Notice of Other
Action(s). The Commission or a Commission Delegee shall send
written notice of the action including, but not limited to, a denial of a
renewal License, taken against a Licensee, Registrant, or Host Community and
the basis(es) for that action which shall include, but not be limited to, the
following information:
1. The Commission's
statutory and regulatory authority, including its jurisdiction over the subject
matter and its authority to take action with regards to the License,
registration, or HCA;
2. The
factual basis(es) for that action;
3. The alleged violation(s) of law, including
its jurisdiction over the subject matter and its authority to issue the order
with regards to the License or registration;
4. The current restriction(s) on the
Licensee's operations or the sale or use of Marijuana or Marijuana Products, if
any;
5. The potential for further
disciplinary action(s), sanction(s) or fine(s); and
6. The Licensee, Registrant, or Host
Community's right to a hearing, if any.
(c) The Commission or a Commission Delegee
may modify, amend or rescind a notice issued under
935
CMR
500.500(3).
(4)
Hearing Request.
The hearing request shall be submitted in a form and a manner determined by the
Commission or a Commission Delegee including, but not limited to, the request
shall be made no later than 30 days after the effective date of the notice. A
request for a hearing is filed on the date the request is received by the
Commission.
(a) A timely request for a
hearing shall specifically identify each issue and fact in dispute and state
the position of the Licensee, Registrant, or Host Community, the pertinent
facts to be adduced at the hearing, and the reasons supporting that
position.
(b) The failure to timely
file a request for a hearing or to state the basis of the hearing request will
result in dismissal of the challenge to the findings set forth in the notice of
violation(s) or action(s).
(c) If a
timely request for an hearing is made, the Licensee, Registrant, or Host
Community may also seek to stay any action until there has been a final agency
action pursuant to
935
CMR 500.500(7) or (12);
provided, however, that if the Commission issues an order or notice on the
basis of information that ongoing operations pose an immediate or serious
threat to the public health, safety or welfare, and that operations without
restrictions during the pendency of the administrative appeal could reasonably
be expected to endanger the health, safety or welfare of the public, there will
be no stay.
(d) Nothing in
935
CMR 500.500 shall preclude the Commission or
a Commission Delegee from issuing a stay.
(5)
Hearing Officer.
The Commission shall designate a Hearing Officer or delegate this designation
to the Executive Director.
(6)
Hearing Officer's Authority to Take Action in the Event of Waiver,
Default or Summary Decision.
(a)
Waiver. If a Licensee, Registrant, or Host Community
fails to request a hearing in a timely manner or otherwise waives their right
to a hearing, the Hearing Officer may assume the truth of the allegations set
forth in the notice and recommend to the Commission disciplinary action(s),
sanction(s) or fine(s) or an informal disposition of the matter.
(b)
Default. If a
Licensee, Registrant, or Host Community defaults, the Hearing Officer or other
Commission Delegee may assume the truth of the allegations set forth in the
notice and recommend to the Commission appropriate disciplinary action(s),
sanction(s) or fine(s) or an informal disposition of the matter.
(c)
Summary
Decision. If there is no genuine issue of fact to be determined by
a hearing, the Hearing Officer may assume the truth of the allegations set
forth in the notice and recommend to the Commission disciplinary action(s),
sanction(s) or fine(s) or an informal disposition of the matter.
(d) For actions without a hearing under
935
CMR 500.500(6)(a) through
(c), the Hearing Officer may conduct an
evidentiary hearing on the appropriateness of disciplinary action(s),
sanction(s) or fine(s).
(7)
Commission's Authority to
Review, Approve or Reject Informal Dispositions. At any time, the
Commission or a Commission Delegee may, in its discretion, review, approve or
reject an informal disposition, but only on a showing that the alleged
violations have been corrected, and a submission of a written waiver of its
right to judicial review.
(8)
Hearing Notice. If a hearing is requested in a timely
manner under
935
CMR 500.500(4) the Hearing
Officer shall provide notice and a hearing within a reasonable time after that
request, or as soon as is practicable, or at a time mutually agreed by the
parties.
(a) The hearing notice should comply
with M.G.L. c. 30A, § 11(1).
(b) Prior to the commencement of a
proceeding, a Hearing Officer may conduct conference(s) and refer or require
the parties to participate in settlement negotiations. If the parties reach a
settlement, the Hearing Officer shall suspend the proceedings pending
Commission consideration of the matter under
935
CMR
500.500(7).
(9)
Conduct of the
Hearing
(a) To the extent that a
Hearing Officer conducts a proceeding, it shall be conducted pursuant to M.G.L.
c. 30A and the Standard Adjudicatory Rules of Practice and Procedure, which
includes
801
CMR 1.01: Formal Rules,
801
CMR 1.02: Informal/Fair Hearing
Rules, and/or
801
CMR 1.03: Miscellaneous Provisions
Applicable to All Administrative Proceedings.
(b) In the case of an Order to Show Cause why
a License should not be suspended or revoked, the hearing shall be conducted
pursuant to M.G.L. c. 30A, §§ 10, 11 and 12.
(c) If after the commencement of the hearing,
the parties reach a settlement, the Hearing Officer shall suspend the
proceedings pending Commission consideration of the matter under
935
CMR
500.500(7).
(10)
Reopening of
Hearings. At any time before the Commission's Final Decision is
issued, on the motion of any party or on their own initiative, the Commission
by a majority vote or the Hearing Officer may on good cause shown reopen the
hearing for the purpose of receiving new evidence.
(11)
Hearing Officer's
Recommended Decision.
(a)
Burden of Proof.
1.
For a notice of violation(s), the Commission or a Commission Delegee bears the
burden of proving the violation(s) of law.
2. For a notice of action(s) including, but
not limited to, the denial of a renewal License, the Licensee bears the burden
of proving the qualifications for licensure.
(b) The Hearing Officer will make a
recommended decision to the Commission.
1. The
recommended decision may affirm, modify, or overturn the actions proposed in
the notice of violation(s) or action(s).
2. The recommended decision shall be in
writing to the Commission for its consideration which shall include, but not be
limited to, a statement of reasons, including a determination of each issue of
fact or law necessary to the decision.
3. The Hearing Officer may recommend
disciplinary action(s), sanction(s) or fine(s) or an informal disposition of
the matter and provide reasons for the recommendation, including whether the
recommendation is consistent with the notice of violation(s) or action(s) and
the Commission's prior disciplinary action(s), sanction(s) or
fine(s).
4. The Hearing Officer
shall electronically mail a copy of the recommended decision to each party or
their attorney(s) of record and on request, mail a copy of the recommended
decision to each party or their attorney(s) of record.
(c) Within 21 calendar days of the issuance
of the recommended decision, the parties may submit to the Commission written
objections and arguments regarding the Hearing Officer's recommended
decision.
(12)
Commission's Final Decision.
(a) The Commission may affirm, adopt, modify,
amend, or reverse the recommended decision of the Hearing Officer or remand the
matter for further consideration.
(b) The Commission's decision shall be
considered the Final Decision, unless its authority to render a Final Decision
is delegated.
1. The Final Decision shall be
in writing. The drafting of the decision may be delegated to the General
Counsel so long as the Commission votes on the substance of the Final
Decision.
2. The Final Decision may
incorporate by reference the Hearing Officer's recommended decision in whole or
in part. The Commission shall consider the parties' written objections and
arguments regarding the Hearing Officer's recommended decision under
935
CMR 500.500(11)(c), but is
not required to respond to these submissions.
3. The Final Decision shall include, but not
be limited to, the following:
a. A statement
of reasons including determination of each issue of fact or law necessary to
the decision; and
b. Any
disciplinary action(s), sanction(s) or fine(s) or an informal disposition of
the matter.
(c)
The vote on the Final Decision shall be supported and signed by at least three
Commissioners. As part of its vote, the Commission may delegate to the General
Counsel action(s) needed to finalize the decision including, but not limited
to, the stamping of Commissioners' signatures.
(d) The Commission's Final Decision is a
final agency action reviewable under M.G.L. c. 30A, § 14.
(e) The Commission or a Commission Delegee
shall electronically mail a copy of the recommended decision to each Licensee,
Registrant, Host Community or their attorney(s) of record and on request, mail
a copy of the recommended decision to each Licensee, Registrant, Host Community
or their attorney(s) of record.
(13)
Appeals. Any
Person aggrieved by a Final Decision may appeal that decision to the Superior
Court in accordance with M.G.L. c. 30A, § 14. The filing of an appeal
shall not operate as a stay of enforcement of the Commission's decision, but
the Commission may, in its discretion, stay enforcement.
