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TRIBAL CANNABIS COMPLIANCE REGULATIONS

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 REGULATION 4

DISCIPLINARY AND OTHER PROCEEDINGS BEFORE THE BOARD

 

4.010     Applicability.

4.020     Grounds for disciplinary action.

4.030     Imposition of civil penalty; revocation or suspension of license or cannabis establishment agent registration card; corrective action.

4.035     Category I Violations.

4.040     Category II Violations.

4.050     Category III Violations.

4.055     Category IV Violations.

4.060     Category V Violations.

4.065     Imminent health hazard.

4.070     Complaint.

4.075     Service of complaint.

4.080     Prohibition of ex parte communications.

4.085     Hearing Officer

4.090     Appearance through counsel.

4.095     Answer and early case conference and hearing.

4.098     Hearings: Procedure; use of affidavit.  

4.100     Reinstatement of license or cannabis establishment agent registration card: Application; conditions, limitations or restrictions upon reinstatement; denial.

4.105     Grounds for summary suspension; notice; request for hearing.

4.110     Discovery: exchanges.

4.115     Continuances and recesses.

4.120     Burden and standard of proof. 

4.125     Motions.

4.135     Disposition of charges: Adjudication by Hearing Officer.

4.140     Appeals

4.010 Applicability. TCCR 4 shall apply to disciplinary proceedings governed by the Tribe’s Cannabis Ordinance. Unless otherwise ordered by the Chair, this regulation shall apply to all such proceedings that are pending on the effective date of this regulation.

 

4.020 Grounds and procedure for disciplinary action. 

1. A violation of any of the provisions of the Tribe’s Cannabis Ordinance or TCCR is grounds for disciplinary action by the Board or Department, including, without limitation, immediate revocation of a license for a cannabis establishment.

2. A violation of any of the provisions of the Tribe’s Cannabis Ordinance or TCCR is grounds for disciplinary action by the Board or Department, including, without limitation, immediate revocation of a cannabis establishment agent registration card.

3.  The Department may impose disciplinary action as stated herein, subject to review through a hearing as stated herein.  The Board may impose disciplinary action on its own motion or following a hearing initiated by a complaint.

4.  The Commission shall appoint a hearing officer to hear and make final decisions on disciplinary actions initiated by the Department, and those initiated by a Board complaint.

 

4.030 Imposition of civil penalty; revocation or suspension of license or cannabis establishment agent registration card; corrective action. 

1. The Board/Department may:

(a) Subject to the provisions of TCCR 4, impose a civil penalty of not more than $5,000 per violation on any person who fails to comply with or violates any provision of the TCCR and the Tribe’s Cannabis Ordinance. Such a civil penalty must be paid to the Tribe for deposit in the Tribe’s General Fund;

(b) Except as otherwise provided in paragraph (c), suspend or revoke a license or cannabis establishment agent registration card. If the Board/Department orders the suspension of a license or cannabis establishment agent registration card, the Board/Department shall prescribe the time period of the suspension in the written decision. If the Board/Department orders the revocation of a license or cannabis establishment agent registration card, the Board/Department shall prescribe a period of not less than 1 year and not more than 10 years during which the person may not apply for reinstatement of the license or cannabis establishment agent registration card; and

(c) If corrective action approved by the Board/Department will cure the noncompliance or violation but will not be completed within 30 days after issuance of the order, suspend for more than 30 days the license of a cannabis establishment or the cannabis establishment agent registration card of a person who fails to comply with or violates the provisions of the TCCR and the Tribe’s Cannabis Ordinance.

2. To determine the amount of a civil penalty assessed pursuant to this section, the Board/Department will consider the gravity of the violation, the economic benefit or savings, if any, resulting from the violation, the size of the business of the violator, the history of compliance with the TCCR and the Tribe’s Cannabis Ordinance by the violator, action taken to remedy the violation, the effect of the penalty on the ability of the violator to continue in business and any other matter as justice may require.

 

 

4.035 Category I Violations.

1. The Board/Department will determine a category I violation of the TCCR and the Tribe's Cannabis Ordinance as follows: 

(a) Category I violations are of a severity that make a person ineligible to receive, renew, or maintain a license, including, without limitation:

(1) Conviction of an excluded felony offense;

(2) Operating without all required permits, certificates, registrations and/or licenses;

(3) Making an intentionally false statement to the Board, Department or their agents;

(4) Intentionally destroying or concealing evidence;

(5) Intentionally failing to pay taxes to the Tribe;

(6) Allowing noisy, disorderly or unlawful activity that results in death or serious physical injury, that involves the unlawful use or attempted use of a deadly weapon against another person or that results in a sexual offense which is a category A felony;

(7) Operating a cannabis establishment while the license for the cannabis establishment is suspended or revoked; 

(8) Transporting cannabis outside of the boundaries of the Reservation or State of Nevada, except where authorized by an agreement between the Nevada Governor and the Tribe or another participating tribal government;

(9) Making verbal or physical threats to a Board or Department agent or Board member;

(10) Failing to immediately admit regulatory or law enforcement personnel into the premises of a cannabis establishment;

(11) Refusing to allow an inspection or obstructing regulatory personnel or law enforcement officer from performing his or her official duties;

(12) Purchasing or selling cannabis that has not passed the analysis required by a cannabis independent testing laboratory without written approval from the Board or Department;

(13) Purchasing or selling cannabis not found in the seed-to-sale tracking system;

(14) Failure to properly collect taxes; or

(15) Transporting or storing cannabis from an unlicensed source, other than patient or consumer samples stored at a cannabis independent testing laboratory, or diversion of cannabis or cannabis products.

2. Before consideration of the factors described in subsection 1(a), the Board/Department will presume that the following are appropriate penalties for violations of the TCCR and the Tribe's Cannabis Ordinance:

(a) For a category I violation which is the:

(1) First violation in the immediately preceding 3 years, a civil penalty of not more than $5,000 and a suspension for not more than 30 days or revocation of a license or cannabis establishment agent registration card.

(2) Second or subsequent violation in the immediately preceding 3 years, revocation of a license or cannabis establishment agent registration card.

(b) Notwithstanding the foregoing, a single violation of TCCR 4.035(1)(a)(15) for diversion of cannabis or cannabis products requires revocation of a license, certificate, and/or cannabis establishment agent registration card.

 

4.040 Category II Violations.

1. The Board/Department will determine a category II violation of the TCCR and the Tribe's Cannabis Ordinance as follows:

(a) Category II violations are violations of a severity that create a present threat to public health or safety, including, without limitation:

(1) Making an unintentional false statement or representation of fact to the Board or Department or their Agents;

(2) Unintentionally destroying or concealing evidence;

(3) Failing to verify the age of, or selling or otherwise providing cannabis or cannabis paraphernalia to, a person who is less than 21 years of age;

(4) Allowing a person who is less than 21 years of age to enter or remain in a cannabis establishment or transport vehicle unless the person holds a registry identification card or letter of approval;

(5) Permitting sales by a person without a cannabis establishment agent registration card unless that person is deemed to be temporarily registered;

(6) Effecting a change in ownership and/or ownership interest without complying with all the requirements of TCCR and/or any additional Board guidance and orders regarding transfers of interest.;

(7) Allowing noisy, disorderly or unlawful activity that involves use of a dangerous weapon against another person with intent to cause death or serious physical injury;

(8) Allowing a person who is less than 21 years of age to work or volunteer at the cannabis establishment;

(9) Failing to cease operation and notify the Board, Department or their Agents during an imminent health hazard;

(10) Purchasing, cultivate, produce or otherwise use cannabis from an unapproved source;

(11) Not properly segregating medical patient retail sales from adult use retail sales;

(12) Operating an unapproved extraction unit;

(13) Selling an amount of cannabis in excess of transaction limits; 

(14) Failing to maintain required security alarm and surveillance systems;

(15) Any intentional variance from approved procedures in a laboratory;

(16) Failing to notify the Board, Department or their Agents  of a loss of possession or control of a cannabis facility within 24 hours; 

(17) Transferring, moving, or disturbing cannabis or cannabis product which has been quarantined by the Board or Department without Board or Department approval;

(18) Failing to renew the cannabis establishment license on time; or

(19) Any violation of TCCR 11.070.

2. Before consideration of the factors described in subsection 1(a), the Board/Department will presume that the following are appropriate penalties for violations of the TCCR and the Tribe's Cannabis Ordinance:

(a) For a category II violation which is the:

(1) First violation in the immediately preceding 3 years, a civil penalty of not more than $2,500 and a suspension for not more than 20 days of a license or cannabis establishment agent registration card.

(2) Second violation in the immediately preceding 3 years, a civil penalty of not more than $5,000 and a suspension for not more than 30 days of a license or cannabis

establishment agent registration card.

(3) Third or subsequent violation in the immediately preceding 3 years, revocation of a license or cannabis establishment agent registration card.

 

4.050 Category III Violations.

1. The Board/Department will determine a category III violation of the TCCR and the Tribe's Cannabis Ordinance as follows:

(a) Category III violations are violations of a severity that create a potential threat to public health or safety, including, without limitation:

(1) Transporting cannabis in an unauthorized vehicle;

(2) Allowing consumption by any person of alcohol, cannabis (except at a consumption lounge) or other intoxicants on the premises of the cannabis establishment or in areas adjacent to the premises of the cannabis establishment which are under the licensee’s control, including, without limitation, a parking lot;

(3) Failing to keep any required records, including seed-to-sale tracking requirements;

(4) Failing to tag plants as required;

(5) Failing to follow an approved security plan;

(6) Allowing disorderly activity;

(7) Allowing any activity which violates applicable laws;

(8) Failing to notify the Board, Department or their agents within 24 hours after discovery of a serious incident or criminal activity on the premises of the cannabis establishment;

(9) Unintentionally failing to pay taxes to the Tribe;

(10) Selling unauthorized products or using unauthorized ingredients;

(11) Failing to notify the Board, Department or their agents of a modification or expansion of the facilities of the cannabis establishment or a change in equipment or menu of the cannabis establishment;

(12) Violating packaging or labeling requirements including seed-to-sale tracking system requirements;

(13) Storing or delivering an unapproved cannabis product or a cannabis product outside the seed-to-sale tracking system;

(14) Failing to meet requirements for the disposal of cannabis waste;

(15) Using unauthorized pesticides, soil amendments, fertilizers or other crop production aids;

(16) Exceeding the maximum serving requirements for cannabis products;

(17) Exceeding a reasonable time frame for delivery without approval from the Board, Department or their agents;

(18) Picking up, unloading or delivering cannabis at an unauthorized location;

(19) Failing to comply with requirements for hand washing and employee hygiene,

including, without limitation, using a bare hand on a cannabis product;

(20) Failing to maintain proper temperature of potentially hazardous food or cannabis products;

(21) Selling or failing to dispose of cannabis, cannabis products or food items that are spoiled or contaminated; 

(22) Failing to tag cannabis or a cannabis product as required;

(23) Failing to follow seed-to-sale tracking system requirements while transporting or delivering cannabis or cannabis products 

(24) Failing to properly update the licensee’s point of contact with the Board or Department;

(25) Failure to maintain quality assurance/quality control program in a laboratory; or

(26) Failure to maintain updated standard operating procedures.

(27)  Allowing sales of any products at a cannabis consumption lounge that are not permitted to be sold at a cannabis consumption lounge;

(28)  Allowing the removal of any single-use cannabis products or ready-to-consume cannabis products from a cannabis consumption lounge;

(29)  Permitting the use or consumption of cannabis by any person displaying any visible signs of overconsumption at a cannabis consumption lounge; 

(30) Failing to develop, implement, and/or maintain a plan to mitigate the risk of impaired driving at a cannabis consumption lounge; or

(31) Failing to maintain a separate room in a cannabis consumption lounge for cannabis smoking, vaping, and inhalation in a cannabis consumption lounge, unless all such activities are prohibited in the cannabis consumption lounge.

2. Before consideration of the factors described in subsection 1(a), the Board/Department will presume that the following are appropriate penalties for violations of the TCCR and the Tribe's Cannabis Ordinance:

(a) For a category III violation which is the:

(1) First violation in the immediately preceding 3 years, a civil penalty of not more

than $1,000.

(2) Second violation in the immediately preceding 3 years, a civil penalty of not more

than $2,000 and/or a suspension for not more than 10 days of a license or cannabis

establishment agent registration card.

(3) Third violation in the immediately preceding 3 years, a civil penalty of not more 

than $3,000 and/or a suspension for not more than 20 days of a license or cannabis

establishment agent registration card.

(4) Fourth violation in the immediately preceding 3 years, a civil penalty of not more

than $5,000 and a suspension for not more than 60 days of a license or cannabis

establishment agent registration card.

(5) Fifth or subsequent violation in the immediately preceding 3 years, revocation of

a license or cannabis establishment agent registration card.

4.055 Category IV Violations.

1. The Board/Department will determine a category IV violation of the TCCR and   the       Tribe's Cannabis Ordinance as follows:

(a) Category IV violations create a climate which is conducive to abuses associated with

the sale or production of cannabis or cannabis products, including, without limitation:

(1) Failing to display or have in the immediate possession of each cannabis

establishment agent a cannabis establishment agent registration card or proof of 

temporary registration;

(2) Removing, altering or covering a notice of suspension of a license or any other

required notice or sign;

(3) Violating advertising requirements;

(4) Displaying products in a manner visible to the general public from a public right 

of way;

(5) Failing to respond to an administrative notice of a violation or failing to pay fines;

(6) Violating restrictions on sampling;

(7) Failing to maintain a standardized scale as required;

(8) Improper storing of cannabis, cannabis products or other foods;

(9) Failing to properly wash, rinse and sanitize product contact surfaces as required;

(10) Failing to maintain hand-washing facilities that are stocked, accessible and limited to hand washing only;

(11) Infestation by pests that are not multigenerational or on contact surfaces;

(12) Failing to properly use sanitizer as required; 

(13) Violating any transportation or delivery requirements not described in another

category of violations;

(14) Failing to properly respond to a Board or Board Agent’s request for

documentation, information, video, or other records; or

(15) Any violation of TCCR 11.015(2).

(16)Failing to comply with required employee training;

(17)Failing to offer required consumer education, support materials, warnings, and/or notices to a cannabis consumption lounge consumer;

(18)Failing to comply with any laws or regulations related to on-site food preparation at a cannabis consumption lounge; or

(19)Failing to comply with ventilation requirements at a cannabis consumption lounge.

2. Before consideration of the factors described in subsection 1(a), the Board/Department will presume that the following are appropriate penalties for violations of the TCCR and the Tribe's Cannabis Ordinance: 

(a) For a category IV violation which is the:

(1) First violation in the immediately preceding 3 years, a civil penalty of not more than $500.

(2) Second violation in the immediately preceding 3 years, a civil penalty of not more than $1,000 and/or a suspension for not more than 7 days of a license or cannabis establishment agent registration card.

(3) Third violation in the immediately preceding 3 years, a civil penalty of not more than $2,000 and/or a suspension for not more than 10 days of a license or cannabis establishment agent registration card.

(4) Fourth violation in the immediately preceding 3 years, a civil penalty of not more than $4,000 and/or a suspension for not more than 20 days of a license or cannabis establishment agent registration card.

(5) Fifth violation in the immediately preceding 3 years, a civil penalty of not more than $5,000 and a suspension for not more than 30 days of a license or cannabis establishment agent registration card.

(6) Sixth or subsequent violation in the immediately preceding 3 years, revocation of a license or cannabis establishment agent registration card.

4.060 Category V Violations.

1. The Board/Department will determine a category V violation of the TCCR and the Tribe's Cannabis Ordinance as follows:

(a) Category V violations are inconsistent with the orderly regulation of the sale or

production of cannabis or cannabis products, including, without limitation:

(1) Failing to submit monthly tax or sales reports or payments;

(2) Failing to notify the Board, Department or their agents of a temporary closure of the cannabis establishment within 24 hours of the closure; 

(3) Failing to post any required signs;

(4) Failing to notify the Board or Department of a change in the name of the cannabis establishment;

(5) Making a payment with a check returned for insufficient funds; 

(6) Failing to comply with any other requirements not described in another category

of violations;

(7) Failing to properly submit quarterly inventory reports, monthly sales reports, or

other reports required by the Board or Department; or

(8) Failure to pay for all costs involved in screening or testing related to quality

assurance compliance checks within 30 days.

(9)  Operating a cannabis consumption lounge, or cannabis sales facility, outside of its designated hours of operation or failing to properly post the hours of operation of a cannabis consumption lounge, or cannabis sales facility; 

(10)  Failing to provide required water service at a cannabis consumption lounge; or 

(11) Failing to comply with requirements regarding visibility of consumption from the public at a cannabis consumption lounge. 

2. Before consideration of the factors described in subsection 1(a), the Board/Department will presume that the following are appropriate penalties for violations of the TCCR and the Tribe's Cannabis Ordinance:

(a) For a category V violation which is the:

(1) First violation in the immediately preceding 3 years, a warning.

(2) Second violation in the immediately preceding 3 years, a civil penalty of not more

than $2,000.

(3) Third violation in the immediately preceding 3 years, a civil penalty of not more

than $3,000 and/or a suspension for not more than 3 days of a license or cannabis

establishment agent registration card.

(4) Fourth violation in the immediately preceding 3 years, a civil penalty of not more

than $4,000 and/or a suspension for not more than 7 days of a license or cannabis

establishment agent registration card.

(5) Fifth violation in the immediately preceding 3 years, a civil penalty of not more 

than $5,000 and/or a suspension for not more than 10 days of a license or cannabis

establishment agent registration card.

(6) Sixth or subsequent violations in the immediately preceding 3 years, a civil penalty

of not more than $6,000 and/or a suspension for not more than 20 days of a license or cannabis establishment agent registration card.

4.065 Imminent health hazard.

1. The Board or Department, through their Agents, will determine whether an event is an imminent health hazard that requires immediate correction or cessation of operations to prevent injury or serious illness based on the nature, severity and duration of any anticipated injury, illness or disease and the number of injuries or illnesses to members of the public which may occur.  Events that are presumed to be imminent health hazards include, without limitation:

(a) Interruption of electrical service;

(b) Lack of potable water or hot water;

(c) Grossly unsanitary occurrences or conditions including, without limitation, pest

infestation or sewage or liquid waste not being disposed of in an approved manner;

(d) Lack of adequate refrigeration;

(e) Lack of adequate toilet and hand-washing facilities for employees;

(f) Misuse of poisonous or toxic materials;

(g) A suspected outbreak of foodborne illness;

(h) A fire or flood; 

(i) Tribal emergency directives; or 

(j) Any other condition or circumstance which endangers public health.

2. If a cannabis facility becomes aware of any such condition listed above, independently and not through the Board’s or Department’s agent, it must report said hazard to the Board, Department or their agents within two hours of the hazard’s discovery.

 

4.070 Complaint. The Department shall and the Board may initiate a disciplinary matter by preparing a complaint.  The complaint must contain the following information:

1. The date of the violation or, if the date of the violation is unknown, the date that the violation was identified;

2. The address or description of the location where the violation occurred;

3. The section of the TCCR and the Tribe's Cannabis Ordinance that was violated and a description of the violation;

4. The amount of the civil penalty that the Board/Department will impose or a description of the action the Board/Department will take for the violation;

5. A description of the payment process, including a description of the time within which and the place to which any civil penalty must be paid if the respondent does not wish to dispute the complaint;

6. An order prohibiting the continuation or repeated occurrence of the violation described in the complaint;

7. A brief description of the complaint process, including, without limitation, the time within which respondent must serve an answer to the complaint and the place to which the answer must be served; and

8. The name of the Board or Department agent who performed the investigation.

 

4.075 Service of complaint. The Board/Department shall serve the complaint upon the respondent either personally, by registered or certified mail at the respondent’s address on file with the Board or Department, or by referring the complaint to a Board or Department agent or law enforcement officer for personal service. Proof of service may be provided by a certificate or affidavit of service, which shall be signed by the person effecting service and which shall specify the date and manner of service.

 

4.080 Prohibition of ex parte communications.

1. Unless required for the disposition of ex parte matters authorized by law:

(a) A party or the party’s representative shall not communicate, directly or indirectly, in connection with any issue of fact or law related to a proceeding under this regulation, with the Hearing Officer or any member of the Board, except upon notice and opportunity to all parties to participate; and

(b) The Hearing Officer and each member of the Board shall not communicate, directly or indirectly, in connection with any issue of fact or law related to a proceeding under 

this regulation, with any party or any party’s representative, except upon notice and opportunity to all parties to participate.

2. This section shall not preclude:

(a) The Hearing Officer or any member of the Board from consulting with Board counsel or supervisory counsel concerning any matter before the Board; or

(b) A party or a party’s representative from conferring with the Hearing Officer or Board counsel concerning procedural matters that do not involve issues of fact or law related to the proceeding.

3. A party or a party’s representative may discuss, with counsel only, issues of fact or law in conjunction with potential case settlement.

4.085 Hearing Officer.

1. The Hearing Officer may issue rulings on discovery matters, scheduling matters, protective orders, the admissibility of evidence, and other procedural or pre hearing matters that are not dispositive of the case or any portion thereof. 

2. The Hearing Officer may alter any of the time periods provided by this regulation, upon the Hearing Officer’s own initiative or upon motion by a party or other person affected, for good cause shown.
 

4.090 Appearance through counsel.

1. Parties to proceedings governed by this regulation may appear personally or through an attorney, except that the parties must personally attend any hearing on the merits unless such attendance has been waived by the Hearing Officer.

2. When a party has appeared through an attorney, service of all notices, motions, orders, decisions, and other papers shall thereafter be made upon the attorney.

3. When a party is represented by an attorney, the attorney shall sign all motions, oppositions, notices, requests, and other papers on behalf of the party, including requests for subpoenas.

4. An attorney may withdraw from representing a person upon notice to the person or licensee, the Hearing Officer, the Board and Department. 

5. If the Hearing Officer finds that an attorney has violated any provision of this section, the Hearing Officer may bar the attorney from participating in the case or may impose such other sanctions as the Hearing Officer deems appropriate.

6. A person or licensee subject to a hearing pursuant to this chapter is responsible for all costs related to the presentation of the defense.

 

4.095 Answer, early case conference and hearing. 

1.  Unless granted an extension, the respondent must answer within 20 days after the service of the complaint.  In the answer, the respondent must:

(a)  Must state in short and plain terms the defenses to each claim asserted;

(b)  Must admit or deny the facts alleged in the complaint;

(c)  Must state which allegations the respondent is without knowledge or information to form a belief as to their truth.  Such allegations shall be deemed denied.

(d)  Must affirmatively set forth any matter which constitutes an avoidance or affirmative defense.

(e)  May demand a hearing.  Failure to demand a hearing constitutes a waiver of the right to a hearing and to judicial review of any decision or order of the Hearing Officer, but the Hearing Officer may order a hearing even if the respondent so waives his or her right.

2.  Failure to answer or to appear at the hearing constitutes an admission by the respondent of all facts alleged in the complaint.  The Hearing Officer may take action based on such an admission and on other evidence without further notice to the respondent.  If the Hearing Officer takes action based on such an admission, the Hearing Officer shall include in the record which evidence was the basis of the action.   The Hearing Officer may revise the penalty or other action stated in the complaint.  

3.  The Hearing Officer shall determine the time and place of the hearing as soon as is reasonably practicable after receiving the respondent’s answer.  The Hearing Officer shall deliver or send by registered or certified mail a notice of hearing to all parties at least ten days before the hearing.  The hearing must be held within 60 days after the respondent’s answer, except if the Hearing Officer extends this deadline for reasonable cause.

4.  If a hearing will be held, the Hearing Officer shall have the option to hold a pre-hearing conference to address any matters that should be resolved prior to the hearing, including discovery issues, if any.  

5. The hearing will be conducted as set forth in TCCR 4.098.  The hearing officer shall issue, within 30 days of the last date of the hearing, findings of fact and conclusions of law.

 

4.098  Hearings: Procedure; use of affidavit.        

1.  At all hearings, formal rules of civil procedure and the formal rules of evidence shall not apply, but the hearing shall be conducted in a manner to provide the decision maker with sufficient information to make a decision on the matter.    

(a) Oral evidence may be taken only upon oath or affirmation by the witness.  

(b) Every party has the right to:

(1) Call and examine witnesses;

(2) Introduce exhibits relevant to the issues of the case; 

(3) Cross-examine opposing witnesses on any matters relevant to the issues of the case, even though the matter was not covered in a direct examination;

(4) Impeach any witness regardless of which party first called the witness to testify; and 

(5) Offer rebuttal evidence. 

(c) If the respondent does not testify in his or her own behalf, the respondent may be called and examined as if under cross-examination.

(d) The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence may be admitted and is sufficient in itself to support a finding if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in a civil action.

(e) The parties or their counsel may by written stipulation agree that certain specified evidence may be admitted even though such evidence might otherwise be subject to objection.

2.  The Hearing Officer may take official notice of any generally accepted information or technical or scientific matter within the field of cannabis, and of any other fact which may be judicially noticed by the Tribal Court. The parties must be informed of any information, matters or facts so noticed, and must be given a reasonable opportunity, on request, to refute such information, matters or facts by evidence or by written or oral presentation of authorities, the manner of such refutation to be determined by the Hearing Officer.

3.  Affidavits may be received in evidence at any hearing of the Hearing Officer in accordance with the following:

(a) The party wishing to use an affidavit must, not less than 10 days before the day set for hearing, serve upon the opposing party or counsel, either personally or by registered or certified mail, a copy of the affidavit which the party proposes to introduce in evidence together with a notice as provided in paragraph (c).

(b) Unless the opposing party, within 7 days after such service, mails or delivers to the proponent a request to cross-examine the affiant, the opposing party’s right to cross-examine the affiant is waived and the affidavit, if introduced in evidence, must be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not afforded after request therefore is made in accordance with this paragraph, the affidavit may be introduced in evidence, but must be given only the same effect as other hearsay evidence.

(c) The notice referred to in paragraph (a) must be substantially in the following form:          

The accompanying affidavit of (here insert name of affiant) will be introduced as evidence at the hearing set for the ........ day of the month of ………. of the year …… (Here insert name of affiant) will not be called to testify orally and you will not be entitled to question (here insert name of affiant) unless you notify the undersigned that you wish to cross-examine (here insert name of affiant). To be effective your request must be mailed or delivered to the undersigned on or before 7 days from the date this notice and the enclosed affidavit are served upon you.  

                                                                    .......................................................................(Party or Counsel)

                                                                    ...................................................................... (Address)

 

4.100 Reinstatement of license or cannabis establishment agent registration card: Application; conditions, limitations or restrictions upon reinstatement; denial. 

1. If a person applies for reinstatement of a license or cannabis establishment agent registration card that has been revoked pursuant to this chapter, the person shall:

(a) Submit an application on a form supplied by the Board or Department.

(b) Satisfy all the current requirements for the issuance of an initial license or cannabis establishment agent registration card.

(c) Attest that, in this State or any other jurisdiction:

(1) The person has not, during the period of revocation, violated any tribal, state or federal law relating to cannabis, and no criminal or civil action involving such a violation is pending against the person; and

(2) No other regulatory body has, during the period of revocation, taken disciplinary action against the person, and no such disciplinary action is pending against the person.

(d) Satisfy any additional requirements for reinstatement of the license or cannabis establishment agent registration card prescribed by the Board or Department.

2. The Board will consider each application for reinstatement of a license or cannabis establishment agent registration card submitted pursuant to this section. In determining whether to reinstate the license or cannabis establishment agent registration card, the Board will consider the following criteria:

(a) The severity of the act resulting in the revocation of the license or cannabis establishment agent registration card.

(b) The conduct of the person after the revocation of the license or cannabis establishment agent registration card.

(c) The amount of time elapsed since the revocation of the license or cannabis establishment agent registration card.

(d) The veracity of the attestations made by the person pursuant to subsection 1.

(e) The degree of compliance by the person with any additional requirements for reinstatement of the license or cannabis establishment agent registration card prescribed by the Board.

(f) The degree of rehabilitation demonstrated by the person.

3. If the Board reinstates the license or cannabis establishment agent registration card, the Board may place any conditions, limitations or restrictions on the license or cannabis establishment agent registration card as it deems necessary.

4. The Board may deny reinstatement of the license or cannabis establishment agent   registration card if the person fails to comply with any provisions of this section.

5. This section shall not be interpreted to give any party or other person a right to reinstatement of the license or cannabis establishment agent registration card.

 

4.105 Grounds for summary suspension; notice; request for hearing. 

1. If, due to the actions of a cannabis establishment, there could be an impairment of the health and safety of the public, and the Board Chairman or the Department finds that the public health, safety or welfare imperatively requires emergency action, the Board Chairman or Department may issue an order of summary suspension of the license of a cannabis establishment or a cannabis establishment agent registration card pending proceedings for revocation or other action. An order of summary suspension issued by the Board Chairman or Department must contain findings of the exigent circumstances which warrant the issuance of the order of summary suspension, and a suspension under such an order is effective immediately.

2. The Board Chairman or Department will give notice to a licensee or person that is subject to an order of summary suspension of the facts or conduct that warrant the order and the deficiencies that must be corrected to lift the order. A cannabis establishment whose license has been suspended pursuant to section 2 shall develop a plan of correction for each deficiency and submit the plan to the Board Chairman or Department (whichever issued the suspension) for approval within 10 business days after receipt of the order of summary suspension. The plan of correction must include specific requirements for corrective action, which must include times within which the deficiencies are to be corrected. A licensee or person that is subject to an order of summary suspension shall not operate until the Board Chairman or Department has confirmed that the deficiencies identified in the order have been corrected.

3. If the plan submitted pursuant to section 3 is not acceptable to the Board Chairman or Department, either may direct the cannabis establishment to resubmit a plan of correction or the Board Chairman or Department may develop a directed plan of correction with which the cannabis establishment must comply. The Board Chairman’s or Department’s acceptance of a plan of correction does not preclude the Board Chairman or Department from assessing fines and/or pursuing disciplinary action against the licensee for any violations connected with the suspension.

4. A licensee or person that is subject to an order of summary suspension may request a hearing regarding the order within 10 business days after the order is issued.  A hearing on the summary suspension must be held within 30 days after that request for hearing.

 

 

4.110 Discovery: exchanges.

1. Except as stated herein, any party may request discovery from the opposing side only upon approval of the requested discovery by the Hearing Officer, and such request must be made in a timely manner so as not to delay any scheduled hearing.  

2.  Any party may request a copy of  all documents and other evidence then reasonably available to another party which are then intended to be offered as evidence in support of the other party’s case in chief, and a written list of persons the other  party then intends to call as a witness in support of that party’s case in chief. Each witness shall be identified by name, if known, position, business or home address, and a brief description of the purpose for which the witness will be called.

3. The investigative file for a case is not discoverable except for those documents that will be used as evidence in support of its case.

4. A party may take the deposition of a material witness only upon approval by the Hearing Officer after providing justification for needing a deposition. 

5. It shall be a continuing obligation of the parties to produce documents, witness lists, and other matters governed by this section as such become identified by and available to the parties. A party may amend its responses to the requirements of this section by informing the adverse party that documents previously produced or witnesses previously listed, will not be introduced in that party’s case in chief.

 

4.115 Continuances and recesses. The Hearing Officer may, for good cause shown, either before or during a hearing, grant continuances or recesses and may consider a stipulation by the parties to a continuance of the hearing.

 

4.120 Burden and standard of proof. The Board or Department that filed the complaint has the burden of proof, and the standard of proof is a preponderance of the evidence, which is evidence that enables a trier of fact to determine that the existence of the contested fact is more probable than the nonexistence of the contested fact. If a licensee fails to create and/or maintain any documents, records, surveillance video, and/or any other items required pursuant to these regulations and the Tribe's Cannabis Ordinance, that failure shall create a rebuttal presumption that such items would be harmful to that licensee’s case at any disciplinary proceeding against the licensee.

 

4.125 Motions.

1. All motions shall be in writing, unless made during a hearing.

2. A motion shall state with particularity the grounds therefore, shall be supported by a memorandum of points and authorities, and shall set forth the relief or order sought.

3. Every written motion shall be filed with the Hearing Officer and served by the moving party upon the adverse party or as the Hearing Officer directs.

4. An opposing party shall have 10 calendar days after service of the motion within which to file and serve a memorandum of points and authorities in opposition to the motion.

5. The moving party shall have 5 calendar days after service of the opposing memorandum to serve and file a reply memorandum of points and authorities if the moving party so desires.

6. If a motion or opposition is served by mail, 3 calendar days shall be added to the time periods specified herein for response.

7. The failure of a moving party to file a memorandum of points and authorities in support of a motion shall constitute consent to the denial of the motion. The failure of an opposing party to file a memorandum of points and authorities in opposition to any motion shall constitute consent to the granting of the motion.

 

4.135 Disposition of charges: Adjudication by Hearing Officer. 

1. At the conclusion of the presentations of the parties, the Hearing Officer shall deliberate and may impose discipline based upon the evidence, findings of fact and conclusions of law and the presentations of the parties.

2. If the Hearing Officer finds that a violation has occurred, he/she shall order any and all discipline authorized by this Chapter and the Tribe’s Cannabis Ordinance.

3. Within 30 days after the conclusion of the adjudication, the Hearing Officer shall issue a final order, that imposes discipline and incorporates the findings of fact and conclusions of law obtained from the hearing. An order that imposes discipline and the findings of fact and

conclusions of law supporting that order are public records.

4.  The Hearing Officer shall have the power to waive any deviation from the adjudication and hearing procedure rules if the Hearing Officer finds that the licensee was provided sufficient due process to address and contest the complaint.

 

4.140 Appeal.  The party receiving discipline may appeal the hearing officer’s decision to the Tribal Court only for the Tribal Court to determine if the party received proper due process.  If proper due process was not provided, the Tribal Court shall remand the matter back to the hearing officer with directions to correct the due process violations.

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