Current through Register Vol. 35, No. 6, March 26, 2024
A.
Notice of disciplinary
action: The department may issue notice of an immediate disciplinary
action, as specified in this rule, or notice of contemplated disciplinary
action. Notice shall be served upon a licensee's contact person of record.
Notice shall be served via certified U.S. postal mail. A notice shall be deemed
to have been served on the date borne by the return receipt showing delivery or
the last attempted delivery of the notice or decision to the addressee or
refusal of the addressee to accept delivery of the notice or
decision.
B.
Grounds for
disciplinary action: Disciplinary action may be taken against a
producer-applicant, a licensed producer, a manufacturer-applicant or approved
manufacturer, a laboratory applicant or approved laboratory, or an approved
courier or courier-applicant. Disciplinary action may include revocation,
suspension, or denial of an application, license, or department approval,
monetary penalties, immediate suspensions and revocations in accordance with
this rule, and other action. Disciplinary actions may be imposed in any
combination, and the actions described in this paragraph, including suspension
and monetary fines, are not exclusive of one another. Disciplinary action may
be imposed for:
(1) A major violation
implicating public safety, including:
(a)
failure to comply with or satisfy any provision of this rule that implicates
public safety;
(b) diversion,
inversion, or attempted diversion or inversion, of cannabis or a
cannabis-derived product, as determined by the department;
(c) threatening or harming a patient, a
medical practitioner, or an employee of the department;
(d) intentionally destroying, damaging,
altering, removing or concealing evidence of a violation under this rule,
attempting to do so, or asking or encouraging another person to do
so;
(e) deliberately purchasing
usable cannabis, cannabis-derived products or cannabis plants from out of state
or outside the legal medical cannabis system; or
(f) other conduct that shows willful or
reckless disregard for health or safety;
(2) A major violation not implicating public
safety, including:
(a) failure to pay a
required monetary penalty;
(b)
failure to comply with the department's requested access to premises or
materials;
(c) failure to allow or
impedance of a visit by authorized representatives or designees of the
department;
(d) falsification or
misrepresentation of any material or information submitted to the
department;
(e) failure to adhere
to any acknowledgement, verification, or other representation made to the
department;
(f) failure to submit
or disclose information required by this rule or otherwise requested by the
department;
(g) failure to correct
any violation of this rule cited as a result of a review or audit of financial
records or other materials, or cited as a result of a monitoring visit or site
inspection;
(h) a pattern of
non-major license violations;
(i)
non-compliance with tax obligations as determined by a taxation regulatory
authority;
(j) exceeding the plant
limit of the license; and
(3) Any other violation, including:
(a) failure to comply with or satisfy any
provision of this rule that does not implicate public safety;
(b) failure to take a video recording of the
wastage of usable cannabis, in accordance with this rule; and
(c) selling or transferring to a qualified
patient or primary caregiver a quantity of usable cannabis greater than the
maximum amount permitted by department rule.
C.
Fines: Disciplinary actions
against a licensed non-profit producer, approved manufacturer, approved
laboratory, or approved courier may include the imposition of monetary
penalties, which may be assessed by the department in the amount of:
(1) up to $50,000 for each major violation
implicating public safety;
(2) up
to $20,000 for each major violation not implicating public safety;
(3) up to $5,000 for each other
violation.
D.
Persons and entities who may request a hearing: The following persons or
entities may request a hearing to contest an action or proposed action of the
department, in accordance with this rule:
(1)
a licensed producer whose license has been summarily suspended or who has
received a notice of contemplated action to suspend, revoke, or take other
disciplinary action;
(2) a personal
production licensure applicant whose application is denied for any reason other
than failure to submit a completed application or failure to meet a submittal
requirement of this rule;
(3) an
approved manufacturer whose approval status has been summarily suspended or who
has received a notice of contemplated action to suspend, revoke, or take other
disciplinary action;
(4) a
manufacturer-applicant whose application is denied for any reason other than
failure to submit a completed application or failure to meet a submittal
requirement of this rule;
(5) an
approved laboratory whose approval status has been summarily suspended or who
has received a notice of contemplated action to suspend, revoke, or take other
disciplinary action;
(6) a
laboratory-applicant whose application is denied for any reason other than
failure to submit a completed application or failure to meet a submittal
requirement of this rule;
(7) an
approved courier whose approval status has been summarily suspended or who has
received a notice of contemplated action to suspend, revoke, or take other
disciplinary action;
(8) a
courier-applicant whose application is denied for any reason other than failure
to submit a completed application or failure to meet a submittal requirement of
this rule; and
(9) a person whose
participation with a licensed producer or approved entity is prohibited based
on a criminal background check.
E.
Closure of applications
period: A hearing may not be requested by a person or entity whose
application for licensure is denied solely on the basis that the applicable
applications period is closed.
F.
Timing and content of request for hearing: The appellant shall
mail the request for hearing within 30 calendar days of the date that the
notice of contemplated action is received, or in the case of an immediate
action, within 30 days of the action. The request shall:
(1) be properly addressed to the medical
cannabis program;
(2) be mailed to
the medical cannabis program via certified U.S. postal mail;
(3) state the requestor's name, address, and
telephone number(s); and
(4)
include a statement of the issue(s) that the appellant considers relevant to
the review of the action.
G.
Hearing process:
(1) All hearings held pursuant to this
section shall be conducted by a hearing officer appointed by the
secretary.
(2) Hearings shall be
conducted in Santa Fe, NM or, with the consent of the parties, in another
location.
(3) Due to federal and
state confidentiality laws, hearings held pursuant to this section that concern
qualified patients, patient-applicants, licensed producers or
producer-applicants, shall be closed to the public. Portions of hearings may
further be closed to prevent the disclosure of confidential
information.
(4) The hearing shall
be recorded on audiotape or other means of sound reproduction.
(5) Any hearing provided for in this rule may
be held telephonically, with the consent of the parties.
H.
Scheduling: The department
shall schedule and hold the hearing as soon as practicable, however; in any
event no later than 60 calendar days from the date the department receives the
appellant's request for hearing. The hearing examiner shall extend the 60 day
time period upon motion for good cause shown or the parties may extend the 60
day time period by mutual agreement. The department shall issue notice of
hearing, which shall include:
(1) a statement
of the location, date, and time of the hearing;
(2) a short and plain statement of the legal
authority under which the hearing is to be held; and
(3) a short and plain statement of the
subject of the hearing.
I.
Presentation of evidence: All
parties shall be given the opportunity to respond and present evidence and
argument on all relevant issues.
J.
Record of proceeding: The record of the proceeding shall include
the following:
(1) all pleadings, motions,
and intermediate rulings;
(2)
evidence and briefs received or considered;
(3) a statement of matters officially
noticed;
(4) offers of proof,
objections, and rulings thereon;
(5) proposed findings and conclusions;
and
(6) any action recommended by
the hearing examiner.
K.
Audio recording: A party may request a copy of the audio recording
of the proceedings.
L.
Procedures and evidence:
(1) A
party may be represented by a person licensed to practice law in New Mexico or
a non-lawyer representative, or may represent himself or herself.
(2) The rules of evidence as applied in the
courts do not apply in these proceedings. Any relevant evidence shall be
admitted. Irrelevant, immaterial, or unduly repetitious evidence may be
excluded.
(3) The experience,
technical competence, and specialized knowledge of the hearing examiner, the
department or the department's staff may be used in the evaluation of
evidence.
(4) An appellant's
failure to appear at the hearing at the date and time noticed for the hearing
shall constitute a default.
M.
Conduct of proceeding: Unless
the hearing examiner determines that a different procedure is appropriate, the
hearing shall be conducted in accordance with the procedures set forth in this
rule. The following procedures shall apply:
(1) the appellant shall present an opening
statement and the department may present an opening statement or reserve the
statement until presentation of the department's case;
(2) after the opening statements, if made,
the appellant shall present its case;
(3) upon the conclusion of the appellant's
case, the department shall present its case;
(4) upon conclusion of the appellee's case,
the appellant may present rebuttal evidence; and
(5) after presentation of the evidence by the
parties, the parties may present closing argument.
N.
Burden of proof: The
appellant shall bear the burden of establishing by a preponderance of the
evidence that the decision made or proposed by the department should be
reversed or modified.
O.
Continuances: The hearing examiner may grant a continuance for good
cause shown. A motion to continue a hearing shall be made at least 10 calendar
days before the hearing date.
P.
Telephonic hearings:
(1) Any
party requesting a telephonic hearing shall do so no less than 10 business days
prior to the date of the hearing. Notice of the telephonic hearing shall be
given to all parties and shall include all necessary telephone
numbers.
(2) The appellant is
responsible for ensuring the telephone number to the appellant's location for
the telephonic hearing is accurate and the appellant is available at said
telephone number at the time the hearing is to commence. Failure to provide the
correct telephone number or failure to be available at the commencement of the
hearing shall be treated as a failure to appear and shall subject the appellant
to a default judgment.
(3) The
in-person presence of some parties or witnesses at the hearing shall not
prevent the participation of other parties or witnesses by telephone with prior
approval of the hearing examiner.
Q.
Recommended action and final
decision:
(1) The parties may submit
briefs including findings of fact and conclusions of law for consideration by
the hearing examiner.
(2) No later
than 30 calendar days after the last submission by a party, the hearing
examiner shall prepare and submit to the secretary a written recommendation of
action to be taken by the secretary. The recommendation shall propose
sustaining, modifying, or reversing the action or proposed action of the
department.
(3) The secretary shall
issue a final written decision accepting or rejecting the hearing examiner's
recommendation in whole or in part no later than 30 calendar days after receipt
of the hearing examiner's recommendation. The final decision shall identify the
final action taken. Service of the secretary's final decision shall be made
upon the appellant by registered or certified mail.
(4) The final decision or order shall be
included in a producer's file with the medical cannabis program.
