Current through Register 1531, September 27, 2024
(1) Pursuant to M.G.L. c. 94G, §§
4(a)(xii), (xiv), and 21(a), the Commission may make, in an exercise of its
discretion, a suitability or cure determination based on a factual
basis.
(2) The Commission may also
delegate suitability determinations to the Executive Director, who may appoint
a Suitability Review Committee (Committee) to advise the Executive
Director.
(3) All suitability
determinations will be made in accordance with the procedures set forth in
935
CMR 500.800.
(4)
Suitability Review
Process.
(a) Designated
Enforcement staff (staff) shall conduct background checks and gather
information and evidence applicable to a subject's suitability and make a
recommendation as to suitability and, as appropriate, a cure. Staff may make an
adverse suitability recommendation on finding information and evidence that
would result in a Mandatory Disqualification, Presumptive Negative Suitability
Determination or that would support a Negative Suitability
Recommendation.
(b) Before making
an adverse suitability recommendation, staff shall consult with the Executive
Director or the Executive Director's delegee(s). The Executive Director may
dispose of the matter or direct the Committee to institute a review of
suitability or take any action consistent with M.G.L. c. 94G.
(c) If the Executive Director institutes a
suitability review, the staff shall send the written notice of an adverse
suitability recommendation that identifies the Person or entity subject to
suitability review, the particular offenses or conduct relied on and whether
that the offenses or conduct results in a Mandatory Disqualification or
Presumptive Negative Suitability Determination, or supports a Negative
Suitability Recommendation, and reasons for that determination.
(d) The notice of an adverse suitability
recommendation shall provide an opportunity to cure the suitability issue by
removing the subject from its application. To the extent that an applicant can
propose a cure, for example, by removing a subject from an application, the
cure shall be done in a manner determined by the Commission.
(e) The notice of an adverse suitability
recommendation shall provide the subject with the opportunity to request an
informal proceeding before the Suitability Review Committee.
(f) A request for an informal proceeding
shall be submitted in a form and manner determined by the Commission and no
later than 14 business days following the effective date of the adverse
suitability recommendation. Requests received after 14 business days may be
considered at the discretion of the Executive Director or the
Committee.
(g) On notification of
an adverse suitability recommendation and receipt of an informal proceeding
request, the Committee shall initiate a proceeding, make a recommendation
and/or take other action(s) after consultation with the Executive
Director.
(h) If an applicant or a
subject does not make a timely request for an informal proceeding before the
Committee, the Executive Director may forward the adverse suitability
recommendation to the Committee for a review, make a suitability determination,
or take any action consistent with M.G.L. c. 94G.
(5) The Committee shall:
(a) Consider and review whether offense(s) or
information resulting in a Mandatory Disqualification or a Presumptive Negative
Suitability Determination under
935
CMR 500.801: Table A and
935
CMR 500.802: Tables B
through D and
935
CMR 500.803: Table E, as
applied to the subject, renders the subject unsuitable for licensure or
registration;
(b) Consider and
review whether offense(s) or information not otherwise set forth in
935
CMR 500.801: Table A and
935
CMR 500.802: Tables B
through D and
935
CMR 500.803: Table E would
result in a Negative Suitability Recommendation and renders the subject
unsuitable for licensure or registration; and
(c) Subsequent to its review of a suitability
matter, make recommendations to the Executive Director, or the Commission, or a
Commission Delegee(s).
(6) When reviewing an adverse suitability
recommendation by staff that there is an offense resulting in a Mandatory
Disqualification, the Commission shall consider credible and reliable
information demonstrating that:
(a) The
disqualifying event was based on erroneous information or evidence;
and
(b) The subject can demonstrate
that prior to the informal proceeding, the adverse suitability recommendation
can no longer be supported because the error was corrected.
(7) When reviewing an offense resulting in a
Presumptive Negative Suitability Determination, the committee shall take into
consideration the following factors:
(a)
Nature and Specific Circumstances of the Offense or Incident:
1. Time since the offense or
incident;
2. Number of offenses or
incidents;
3. If criminal, sentence
imposed and length, if any, of incarceration;
4. If criminal, sentence imposed and length,
if any, of parole or probation; and
5. Relationship of offense or incident to
nature of work to be performed.
(b) Mitigating Factors:
1. Age of the subject at the time of the
offense or incident; and
2. Whether
offenses or incidents were committed in association with dependence on drugs or
alcohol from which the subject has since recovered.
(c) Conduct Since Time of the Offense or
Incident:
1. If criminal, any relevant
evidence of rehabilitation or lack thereof, such as information about
compliance with conditions of parole or probation, including orders of no
contact with victims and witnesses;
2. The subject's conduct and experience since
the time of the offense including, but not limited to, professional or
educational certifications obtained; and
(d) Any other relevant information, including
information submitted by the subject to the Committee or requested by the
Commission.
(8) The
Committee may make a Negative Suitability Determination in the following
circumstances:
(a) On the receipt of the
staff's Negative Suitability Recommendation that there is credible and reliable
information:
1. The applicant's or Licensee's
prior actions posed or would likely pose a risk to the public health, safety,
or welfare if a License or registration is granted or renewed; and
2. The risk posed by the applicant's or
Licensee's actions relates or would likely relate to the operation of a
Marijuana Establishment.
(b) On review of this recommendation, the
Committee shall consider whether the staff has carried its burden of
demonstrating:
1. The applicant's or
Licensee's prior actions posed or would likely pose a risk to the public
health, safety, or welfare if a License or registration is granted or renewed;
and
2. The risk posed by the
applicant's or Licensee's actions relates or would likely relate to the
operation of a Marijuana Establishment.
(9) Where a Marijuana Establishment Agent
listed on the application for licensure in accordance with
935
CMR 500.101(1), is found to
have no suitability issue under
935
CMR 500.801: Table A, or to
have overcome any suitability issue, the agent shall not be subject to a
subsequent suitability review under
935
CMR 500.802: Tables B through
D and
935
CMR 500.803: Table E.
(a) Nothing in
935
CMR 500.800(9) relieves the
requirement that the applicant or Licensee conduct background checks on its
agents and disclose to the Commission's staff any suitability issue(s) that
arise as a result of those checks.
(b) Any subsequent disclosure of background
check information for a Marijuana Establishment Agent required to be listed and
evaluated pursuant to
935
CMR 500.101(1), will be
assessed pursuant to
935
CMR 500.801: Table A, or on
other grounds for a Negative Suitability Determination only.
(c) Nothing in
935
CMR 500.800(9) precludes the
Commission from initiating a suitability review based on background information
received after the Commission's initial suitability review.
(10) The Executive Director in consultation
with the Committee may determine that a subject's suitability warrants the
Commission's consideration. The Executive Director may also remand a matter to
staff for further investigation prior to making a determination. The Commission
may consider the determination when acting on the application or
renewal.
