935 CMR, § 501.303

Current through Register 1536, December 6, 2024

Section 501.303 - Unannounced Purchase for Purpose of Investigative Testing (Secret Shopper Program)

(1)Secret Shopper Program Authorized. The Commission or a Commission Delegee may at any time and without prior notice, authorize an employee or other agent to pose as a customer and purchase any Marijuana or Marijuana Products from any registered or licensed MTC. The Commission or a Commission Delegee, may authorize such purchase for any investigative purposes that are consistent with St. 2016, c. 334, as amended by St. 2017, c. 55, M.G.L. c. 94G, M.G.L. c. 94I, 935 CMR 500.000: Adult Use of Marijuana, or 935 CMR 501.000 including, but not limited to, investigative testing for compliance with laboratory testing standards and identification check requirements. The purchasing employee or agent shall document the purchase, including the date, time and place of purchase, type and amount of Marijuana or Marijuana Products, and any other information required by the Commission.

(2)Custody and Preservation of Purchases. The Marijuana or Marijuana Products purchased as part of the program shall be securely stored during transport in a manner to prevent contamination or spoilage.

(3)Contamination and Spoilage During Storage or Transport. Any contamination or spoilage of purchases under the Secret Shopper Program during storage or transport while under the control of the purchaser shall be promptly documented by the purchaser in writing and reported to the Commission. The Commission or a Commission Delegee, may authorize the disposal of the contaminated or spoiled purchase, pursuant to the regulations concerning waste disposal under 935 CMR 501.105(12).

(a) All conditions, offenses, and violations are construed to include Massachusetts law or similar law(s) of Other Jurisdictions.

(b) All criminal disqualifying conditions, offenses, and violations include the crimes of attempt, accessory, conspiracy, and solicitation.

(c) Juvenile dispositions shall not be considered as a factor for determining suitability.

(d) Where applicable, all look back periods for criminal conditions, offenses, and violations included in 935 CMR 501.803: Table C commence on the date of disposition; provided however, that if disposition results in incarceration in any institution, the look back period shall commence on release from incarceration.

(e) Unless otherwise specified in 935 CMR 501.803: Table C, a criminal condition, offense or violation shall include both convictions, which include guilty pleas and pleas of nolo contendere, and dispositions resulting in continuances without a finding or other disposition constituting an admission to sufficient facts, but shall exclude other non-conviction dispositions.

(f) All suitability determinations will be made in accordance with the procedures set forth in 935 CMR 501.800. In addition to the requirements established in 935 CMR 501.800 shall:

1. Consider whether offense(s) or information that would result in a Presumptive Negative Suitability Determination under 935 CMR 501.803: Table C renders the subject unsuitable for registration, regardless of the determination of the Licensee; and

2. Consider appeals of determinations of unsuitability based on claims of erroneous information received as part of the background check during the application process in accordance with 803 CMR 2.17: Requirement to Maintain a Secondary Dissemination Log and 803 CMR 2.18: Adverse Employment Decision Based on CORI or Other Types of Criminal History Information Received from a Source Other than the DCJIS.

Table C: Registration as a Laboratory Agent. Shall apply solely to applicants for registration as a Laboratory Agent in accordance with 935 CMR 501.803 at an MTC registered or licensed pursuant to 935 CMR 501.052, or 935 CMR 500.050: Marijuana Establishments.

Time Period	Precipitating Issue	Result
Present (during time from start of application process through action on application or renewal).	Open/Unresolved Criminal Proceedings: any outstanding or unresolved criminal proceeding, the disposition of which may result in a felony conviction under the laws of the Commonwealth or a similar law in Other Jurisdictions.	Mandatory Disqualification
Present	Open/Unresolved Marijuana Business-related License Violations (Massachusetts or Other Jurisdictions): an outstanding or unresolved violation of the regulations as included in 935 CMR 501.000 or a similar statute or regulations in Other Jurisdictions that has either (a) remained unresolved for a period of six months or more; or (b) the nature of which would result in a determination of unsuitability for registration.	Presumptive Negative Suitability Determination
Present	Submission of Untruthful Information to the Commission Including, but Not Limited to: Submission of information in connection with an agent application, waiver request or other Commission action that is deceptive, misleading, false or fraudulent, or that tends to deceive or create a misleading impression, whether directly, or by omission or ambiguity including lack of disclosure or insufficient disclosure; or Making statements during or in connection with a Commission inspection or investigation that are deceptive, misleading, false or fraudulent, or that tend to deceive or create a misleading impression, whether directly, or by omission or ambiguity, including lack of disclosure or insufficient disclosure.	Presumptive Negative Suitability Determination
Present	Open Professional or Occupational License Cases	Mandatory Disqualification
Indefinite	Felony Convictions in Massachusetts or Other Jurisdictions for drug offenses or trafficking crimes under M.G.L. c. 94C, § 32E, or like crimes in Other Jurisdictions.	Mandatory Disqualification
Preceding Five Years	Felony Convictions or CWOF in Massachusetts or Other Jurisdictions for crimes of violence against a person, "violent crime" to be defined the same way as under M.G.L. c. 140, § 121 and M.G.L. c. 127, § 133E.	Presumptive Negative Suitability Determination
Preceding Seven Years	Felony Convictions or CWOF in Massachusetts or Other Jurisdictions for crimes of dishonesty or fraud.	Presumptive Negative Suitability Determination

(4)Use of Secret Shopper Investigative Results. Results of investigations conducted under Secret Shopper Program shall be promptly submitted to the Commission.

(a) All investigative results shall be retained as part of the records for the licensed MTC from which the purchase originated.

(b) The MTC may be notified of any investigative results determined to be noncompliant at a time and manner determined by the Commission.

(c) After the MTC is notified of the investigative results, such results may be used by the Commission to take action on the License of the MTC pursuant to 935 CMR 501.340, 501.350, 501.450, 501.500 or assess fines or other civil penalties pursuant to 935 CMR 501.360.

(d) Without notice to the MTC, the Commission may share such investigative results with any other law enforcement or regulatory authorities.

(e) The Commission may elect to conduct further evaluation of the investigative results at any time for verification or for other purposes reasonably related to sanitation, public health or public safety.

(5) The failure to cooperate with provisions of 935 CMR 501.303 may result in administrative or disciplinary action against the Licensee.