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006.02.8-XII. Disciplinary Action, Hearings, and Appeals

AR ADC 006.02.8-XIIArkansas Administrative CodeEffective: December 13, 2020

West's Arkansas Administrative Code
Title 006. Department of Finance and Administration
Division 02. Alcoholic Beverage Control
Rule 8. Rules Governing the Oversight of Medical Marijuana Transportation by Licensed Transporters and Distributors
Effective: December 13, 2020
Ark. Admin. Code 006.02.8-XII
006.02.8-XII. Disciplinary Action, Hearings, and Appeals
Currentness
12.1 Grounds for Suspension or Revocation of a Registry Identification Card.
A. If the Division finds that a transporter/distributor agent has knowingly violated any provision of the Amendment or the rules promulgated by the Commission, Department, or Division, the Division may:
i. Suspend or revoke the transporter/distributor agent's Transporter/Distributor Agent Registry Identification Card; and
ii. Penalize the transporter/distributor agent in an amount not to exceed one thousand dollars ($1,000) per violation.
B. If the Division finds that a transporter/distributor has knowingly aided or facilitated a violation of any provision of the Amendment or the rules promulgated by the Commission, Department, or Division, the Division may:
i. Suspend or revoke the transporter's/distributor's license; and
ii. Penalize the transporter/distributor in an amount not to exceed five thousand dollars ($5,000) per violation
C. If the Division finds that a transporter/distributor has violated any provision of the Amendment or the rules promulgated by the Commission, Department, or Division, the Division may:
i. Suspend or revoke the transporter's/distributor's license; and
ii. Penalize the transporter/distributor in an amount not to exceed five thousand dollars ($5,000) per violation.
D. Grounds for Suspension, Revocation or Placing a Monetary Fine against a transporter/distributor or transporter/distributor agent.
i. False material statements made by a licensee to the Arkansas Medical Marijuana Commission during the application process;
ii. Failure to pay taxes owed to the State of Arkansas or to any political subdivision of the State of Arkansas;
iii. Failure to prevent diversion or theft of medical marijuana;
iv. Allowing any individual or agent who has not obtained or had suspended or revoked a registry identification card from the Division to work on a licensed premise or perform any duty on behalf of the transporter/distributor;
v. Failure to allow entry to the licensed premises to Alcoholic Beverage Control Administration Director, Alcoholic Beverage Control Enforcement Director, enforcement agents or duly authorized police officers in the course and scope of their employment;
vi. Failure to maintain operational alarm systems and video surveillance systems;
vii. Failure to maintain or keep any record required by these rules or Arkansas law;
viii. Failure to properly package or secure medical marijuana on the licensed premises or during transport;
ix. Operation of by transporter/distributor when a license has been suspended;
x. Failure to comply with any rule promulgated by the Department, the Commission; or the Division;
xi. Failure to comply with any law of the State of Arkansas or any local regulation regarding medical marijuana;
xii. Transporting marijuana in any form to any person or entity without a transporter/distributor license issued by the Arkansas Medical Marijuana Commission;
xiii. Giving marijuana to any person or entity that is not being lawfully transported consistent with the rules contained herein;
xiv. Transporting marijuana to or from any dispensary or cultivation facility that has a license under suspension, revocation, or that has not been renewed;
xv. Failure to utilize the Inventory Tracking System for reporting and controlling inventory;
xvi. Growing or preparing marijuana; manufacturing or processing marijuana; suppling or dispensing marijuana to a qualified patient or designated caregiver; storing marijuana for more than twenty-four hours without written approval from the Division; or purchasing marijuana for resale to other licensed facilities.
xvii. Knowingly aiding or facilitating a violation of the Amendment, rules promulgated by the Commission, Department or Division, or any other law of the State of Arkansas.
12.2 Notice of Violation
A. The Director of Alcoholic Beverage Control Administration may issue a notice of violation if an inspection report or other credible information shows a transporter/distributor or its agent is in violation of:
i. The Amendment;
ii. Any rule promulgated by the Division, the Commission, or the Department;
iii. Any Order of the Division, the Commission, or the Department;
iv. Any law relating to marijuana; or
v. Any law relating to taxation.
B. A notice of violation regarding a transporter/distributor shall be delivered to the transporter/distributor at its licensed premises.
C. A notice of violation regarding a transporter/distributor agent shall be delivered to the agent at the transporter's/distributor's licensed premises. A copy of the notice shall be provided to the transporter/distributor licensee at its licensed premises.
D. The notice of violation shall describe the alleged violation(s) and cite the applicable Constitutional Amendment provision, statute, rule, order, or other law.
E. A notice of violation may be the basis of a proceeding to fine, suspend, revoke, or otherwise penalize a marijuana establishment's license.
F. The notice of violation may include the Director's proposed fine, as well as any proposed penalty to be imposed.
G. A transporter/distributor or transporter/distributor agent that receives a notice of violation shall respond to the notice in writing and may within ten (10 days) after receiving the notice, either:
(i) Consent to the proposed penalty set forth in the notice of violation and waive the right to a hearing, or
(ii) Request a hearing before the Director or an authorized hearing agent.
H. If the transporter/distributor or transporter/distributor agent consents to the penalty and waives the right to a hearing, the licensee or agent shall fulfill the terms set forth in the notice of violation.
I. If a hearing is requested, a hearing shall be scheduled and the transporter or transporter agent shall receive a notice of hearing in compliance with these rules.
J. If the licensee or agent fails to respond to the notice of violation, the Director may enter an order in accordance with the notice of violation.
12.3 Emergency Suspension
A. If the Director finds, pursuant to ACA § 25-15-211(c), that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in his order, summary suspension of a license or registry identification card may be ordered pending proceedings for revocation or other action, which proceedings shall be promptly instituted and determined.
B. If the Director makes the determination set out in (A) of this provision Section XII (2) shall not apply.
12.4 Notice of Hearing
A. If a hearing is required by these rules, a notice of hearing shall be sent to the respondent transporter/distributor or transporter/distributor agent via regular mail or by service of an Enforcement Agent to the address on file with the division.
B. The notice of hearing shall include:
i. A statement of the time, place and nature of the hearing;
ii. A statement of the legal authority and jurisdiction under which the hearing is to be held;
iii. A short and plain statement of the matters of fact and law asserted; and
iv. A statement advising the licensee or agent that the license or registry identification card may be suspended or revoked.
12.5 Conduct of Hearing by Director or Hearing Officer.
A. The Director or designated hearing officer shall conduct hearings.
B. The Director or hearing officer shall be authorized to:
i. Examine or cause to be examined under oath any person;
ii. Examine or cause to be examined books and records of any transporter/distributor or transporter/distributor agent;
iii. To hear testimony, to take proof material for the Director's information and for the purposes of the hearing;
iv. Administer or cause to be administered oaths; and
v. Issue subpoenas to require the appearance of witnesses and the production of books and records, which subpoenas shall be effective in any part of this state.
a. Any Circuit Court may by order duly entered require the attendance of witnesses or the production of relevant books and records subpoenaed by the Director, and the Court may compel obedience to its orders by proceedings for contempt.
b. Any licensee or agent involved in a hearing before the Director shall be entitled, on request, to a subpoena for the compulsory attendance of witnesses.
12.6 Order of Director
If the Director denies, suspends, or revokes a transporter license or registry identification card, or if the Director imposes a monetary fine against any transporter/distributor or transporter/distributor agent, the Director shall prepare an order so stating.
A. The Order shall be signed by the Director or designated hearing officer.
B. The Order shall include findings of fact and conclusions of law, separately stated.
C. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.
D. The order shall be mailed by regular and certified mail to a transporter/distributor or transporter/distributor agent to the address provided by the licensee or the agent.
E. The order shall be final and binding on all parties until such order has been appealed as provided in these rules and the Alcoholic Beverage Control Board issues a decision.
12.7 Appeal of Director's Order
A. A transporter/distributor or transporter/distributor agent aggrieved by an order of the Director may appeal from such Order to the Alcoholic Beverage Control Board by filing a notice of appeal with the Board.
B. The notice of appeal must be mailed or delivered to the offices of the Alcoholic Beverage Control Division within fifteen (15) days after the order to be appealed from is received by the recipient.
C. At least ten (10) days before the time set for the hearing, the Division shall notify the licensee or agent via regular first-class mail of the time and place where said appeal shall be heard by the Board or by a hearing officer designated as provided in these rules.
D. Said hearing shall be held within sixty (60) days after the date of the filing of the notice of appeal unless the person appealing shall consent to a later hearing date.
E. Said hearing shall be held within at least sixty (60) days after the filing of the notice of appeal unless the person appealing requests or consents to a later hearing.
i. Hearings shall not be continued in excess 6 months without consent from the Board.
12.8 Conduct of Hearing by Board. In the conduct of any hearing held by the Board or the Board's designated hearing officer, the Board or such hearing officer shall be authorized to:
A. Examine or cause to be examined under oath any person;
B. Examine or cause to be examined books and records of any transporter/distributor or transporter/distributor agent;
C. Hear testimony;
D. Administer or cause to be administered oaths; and
E. Issue subpoenas to require the appearance of witnesses and the production of books and records, which subpoenas shall be effective in any part of this state.
i. Any Circuit Court may by order duly entered require the attendance of witnesses or the production of relevant books and records subpoenaed by the Director, and the Court may compel obedience to its orders by proceedings for contempt.
ii. Any licensee or agent involved in a hearing before the Board shall be entitled, on request, to a subpoena for the compulsory attendance of
12.9 Order by Board. Within five (5) days after a hearing is concluded by the Board, the Board shall issue its decision in the form of a written Order.
A. The Order shall include findings of facts and conclusions of law, separately stated.
B. Findings of fact, if set forth in statutory language shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.
C. A copy of the Order shall be mailed by certified mail to the transporter/distributor or transporter/distributor agent.
D. The Order shall be final and binding on the transporter/distributor or transporter/distributor agent unless appealed as provided for in these rules.
12.10 Appeal from Board to Courts
A. Any transporter/distributor or transporter/distributor agent aggrieved by a Board order may appeal to Circuit Court in accordance with Ark. Code Ann. § 25-15-212.
B. An appeal from the judgment of the Circuit Court may be taken to the Arkansas Court of Appeals or the Supreme Court of Arkansas in the manner provided for the appeal of civil matters from the Circuit Court.
12.11 Transcript of Board Hearings
A. Pursuant to the provisions of the Arkansas Administrative Procedure Act, the Division shall prepare a certified copy of the agency record for filing in any appeal filed under the Arkansas Administrative Procedure Act.
B. If the Division prevails in the appeal, it will recover $1.50 per page for each page of the transcript of the Alcoholic Beverage Control Board proceedings filed with the Circuit Court.
C. If anyone requests that the Division provide a copy of the agency transcript, the Division shall be entitled to recover forty cents ($.40) per page for each copy of the transcript.
D. Any copies of the Division's files, records, or transcripts shall be paid for at the rates noted above.
E. All monies received by the Division pursuant to the above provisions shall be deposited to the General Revenues of the State of Arkansas.
12.12 Admissibility of Evidence in Hearings
The Director, the Board and any Hearing Officer shall not be bound by the legal rules of evidence in conducting any hearing and in making any decision, and may take into consideration any testimony, papers or documents which may be deemed relevant to the issues involved.
12.13 Designation of Hearing Officer
Pursuant to the power granted to the Division, in part by ACA § 25-15-213 and pursuant to other powers granted to the Director and the Board, the Director or the Board may designate any member of the Division to conduct any hearing authorized by this Article or by any Medical Marijuana law of the State of Arkansas.
12.14 Right to Counsel and to Cross-Examine Witnesses
Any respondent transporter/distributor or transporter/distributor agent or any other person compelled to appear at any hearing provided by these rules or by any Arkansas Medical Marijuana law of the State of Arkansas shall have the right to be accompanied and advised by counsel and to cross-examine witnesses.
12.15 Surrender
After a transporter/distributor license or Transporter/Distributor Agent Registry Identification Card has been suspended or revoked by Order of the Director, the Alcoholic Beverage Control Board, or any final court order, the Director shall give notice to any authorized agent of Enforcement and said agent shall immediately take possession of the transporter/distributor license or Transporter/Distributor Agent Registry Identification Card and return it to the Director.

Credits

Adopted Dec. 13, 2020.
Current with amendments received through February 15, 2024. Some sections may be more current, see credit for details.
Ark. Admin. Code 006.02.8-XII, AR ADC 006.02.8-XII
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