N.H. Admin. Code § He-C 402.30

Current through Register No. 45, November 7, 2024

Section He-C 402.30 - Enforcement Actions and Hearings

(a) The department shall impose enforcement actions for violations of RSA 126-X or He-C 402 including:

(1) Imposing administrative fines upon an ATC;

(2) Denying an application for an ATC registration; or

(3) Revocation of a registration certificate.

(b) When taking enforcement action against an applicant or registrant, the department shall send to the applicant or registrant a written notice that sets forth:

(1) The action to be taken by the department;

(2) The reasons for the proposed action;

(3) The right of an applicant or registrant to a hearing in accordance with RSA 541-A:30, III, or He-C 200, as applicable, before the enforcement action becomes final; and

(4) The automatic reduction of a fine by 25% if the fine is paid within 10 days of the date on the written notice from the department and the area of noncompliance has been corrected, or a POC has been accepted and approved by the department.

(c) The department shall impose fines as follows:

(1) For a failure to cease operations after a registration is revoked or after receipt of an order to cease and desist immediately, in violation of RSA 126-:7, VII and VIIIX, and RSA 541-A:30, the fine for an applicant or an ATC shall be $2000.00 for each day operations continue following the effective date of the order of revocation or the issuance of the cease and desist order;

(2) For violating the advertising restrictions or requirements of He-C 402.23, the fine for an applicant or ATC shall be $2000.00;

(3) For a failure to submit a renewal application for a registration at least 120 days prior to the expiration date, in violation of He-C 402.06(b) , the fine for an ATC shall be $1000.00;

(4) For failure to submit the required annual fee within 30 days of the department's notice stating the balance due, in violation of He-C 402.04(n) , the fine for an ATC shall be $500;

(5) For the use or possession of any chemical prohibited in He-C 402.34, or the use of any chemical not permitted under He-C 402.14(e) , the fine shall be $2000.00 for each chemical used or possessed;

(6) For a failure to notify the department of closure or cessation of services at least 60 days prior to the intended closure, in violation of He-C 402.07(p) (1) , the fine for an ATC shall be $5000.00;

(7) For a failure to notify the department prior to a change in physical location, in violation of He-C 402.07(c) , the fine for an ATC shall be $2000.00 per day from the effective date of the change in location until the date the department learns of the change;

(8) For a failure to allow access by the department to the ATC's registered premises, programs, services, or records, in violation of He-C 402.28(a) , the fine for an applicant or ATC shall be $10,000.00;

(9) For a failure to submit a POC or revised POC, within 21 or 14 days, respectively, of the date on the letter that transmits the statement of findings, in violation of He-C 402.29(b) (2) and (5) , the fine for an ATC shall be $1000.00;

(10) For a failure to implement any POC that has been accepted or issued by the department, in violation of He-C 402.29(b) (8) , the fine for an ATC shall be $2000.00;

(11) For the commission of any act prohibited under He-C 402.08, the fine for an ATC shall be $2000.00;

(12) For a failure to establish, implement, or comply with ATC policies, as required by He-C 402.09(b) , the fine for an ATC shall be $1000.00 per policy not established, implemented, or complied with;

(13) For exceeding inventory capacity, in violation of He-C 402.13, the fine for an ATC shall be $3000.00;

(14) For providing false, misleading, or deceptive information to the department including verbally to agents of the department, on an application, or on any records required to be maintained by the ATC, in violation of He-C 402.32, the fine for an applicant or ATC shall be $5000.00 per offense;

(15) For making false, misleading, or deceptive representations to the public, the fine shall be $1000.00;

(16) For not employing a qualified administrator or for employing an administrator or other personnel who do not meet the qualifications for the position, in violation of He-C 402.31, the fine for an ATC shall be $1000.00;

(17) For engaging an ATC agent who has a felony conviction, in violation of RSA 126-:8, IV(a) X, the fine shall be $3000.00;

(18) For failure to notify the department of a reportable incident as required by He-C 402.10(n) and (o) by the required date, the fine shall be $2000.00;

(19) For failure to maintain effective controls against diversion, theft, or loss of cannabis or CIP the fine shall be $5000.00;

(20) For failure to keep accurate records of all cannabis or CIP dispensed to qualifying patients or designated caregivers, transported, or disposed of, the fine shall be $5000.00;

(21) When an inspection determines that a violation of RSA 126-X or He-C 402 has the potential to jeopardize the health, safety, or well-being of a qualifying patient, designated caregiver, ATC agent, or the public, in addition to any other enforcement actions taken by the department, the fines assessed shall be as follows:

a. If the same an area of noncompliance is cited within 2 years of the original an area of noncompliance, an additional fine of $5000.00 shall be imposed; or

b. If the same an area of noncompliance is cited a third time within 5 years of being fined in a. above, an additional fine of $10,000.00 shall be imposed; and

(22) Each day that the individual or ATC continues to be in violation of the provisions of RSA 126-X or He-C 402 shall constitute a separate violation warranting additional fines in accordance with this section.

(d) Payment of any imposed fine to the department shall meet the following requirements:

(1) Payment shall be made in the form of check or money order made payable to the "Treasurer, State of New Hampshire" in the exact amount due;

(2) Money order or certified check shall be required when an applicant or ATC has issued payment to the department by check, and such check was returned for insufficient funds; and

(3) All funds received as fines under this section shall be deposited to the non-lapsing registry identification card and certificate account pursuant to RSA 126-:11X.

(e) The department shall revoke or deny a registration certificate, as applicable, if the department determines that:

(1) An applicant or a registrant violated a provision of RSA 126-X or He-C 402 which poses a risk of harm to a qualifying patient's, designated caregiver's, ATC agent's, or the public's health, safety, or well-being;

(2) The ATC failed to maintain effective controls against diversion, theft, or loss of cannabis or CIP;

(3) The ATC failed to keep accurate records of all cannabis cultivated, CIP produced, and all cannabis and CIP dispensed to qualifying patients or designated caregivers, transported, stored, or disposed of;

(4) An applicant or registrant has failed to pay an administrative fine or fee imposed by the department;

(5) The applicant, registrant, or any representative or employee of the applicant or registrant:

a. Provides false or misleading information to the department;

b. Prevents, interferes, or fails to cooperate with any inspection or investigation conducted by the department; or

c. Fails to provide requested files or documents to the department;

(6) The registrant failed to implement or continue to implement a POC that has been accepted or imposed by the department in accordance with He-C 402.29(b), (c) , and (d);

(7) The registrant is cited a third time under RSA 126-X or He-C 402 for the same violation within 5 years;

(8) Upon inspection, the applicant or registrant's registered premises or operations are not in compliance with RSA 126-X or He-C 402;

(9) A diversion of cannabis has occurred under circumstances that indicate complicity or negligence on the part of the ATC; or

(10) A corporate officer, a board member, or an executive employee has been convicted of a felony in this or any other state.

(f) An applicant or registrant shall have 30 days after receipt of the notice of enforcement action to request a hearing to contest the action.

(g) If a written request for a hearing is not made pursuant to (f) above, the action of the department shall become final.

(h) The department shall order the immediate suspension of a registration, the cessation of operations, and the transfer of qualifying patients when it finds that the public health, safety, or well-being requires such emergency action in accordance with RSA 541:A-30, III.

(i) If an immediate suspension is upheld, the ATC shall not resume operating until the department determines through inspection that compliance with RSA 12 6-X and He-C 402 is achieved.

(j) Hearings under this section shall be conducted in accordance with RSA 541-A and He-C 200.

(k) No ongoing enforcement action shall preclude the imposition of any remedy available to the department under RSA 126-X, RSA 541-A:30, III, or He-C 402.

(l) An ATC that has had its registration revoked shall not be eligible to apply to be an ATC for a period of 5 years.

(m) If an application for an initial registration is denied pursuant to He-C 402.30(e), the applicant shall not be eligible to apply to be an ATC for a period of 5 years.

N.H. Admin. Code § He-C 402.30

Adopted byVolume XXXIV Number 50, Filed December 11, 2014, Proposed by #10731, Effective 11/25/2014.

Amended by Volume XXXVIII Number 45, Filed November 8, 2018, Proposed by #12653, Effective 11/1/2018, Expires 11/1/2028.