Current through Register 1531, September 27, 2024
(1) The Commission has the authority to
administer the administrative hearing process under M.G.L. c. 94I, § 7 and
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:
(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 501.500.
(3)
Notice(s).
(a) Notice of Violation(s) includes a notice
issued in accordance with
935
CMR 501.360 or
935
CMR 501.370.
(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 or
registration, or HCA;
2. The
factual basis(es) for that action;
3. The alleged violation(s) of law;
4. The current restriction(s) on the
Licensee's or Registrant's operations or the sale or use of Marijuana,
Marijuana Products, or MIPs, 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)(c).
(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 a 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 501.500(7) or
935
CMR 501.500(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 501.500 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 a
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 501.500, 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 501.500(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 501.500(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 Adjudicatory Proceedings.
(b) In the case of an Order to Show Cause,
why a License or Registration 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 501.500(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 Commission's 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 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)
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 501.500(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 pursuant to 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, or Host Community or their attorney(s) of record and on request,
mail a copy of the recommended decision to each Licensee, Registrant, or 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.