(Amended by Ord. No. 187,095, Eff. 7/1/21.)
(a) A request for an administrative hearing may be filed for the following DCR actions:
1. Issuance of a NOV by DCR.
2. Denial of an application for License renewal by DCR.
3. Notice of an administrative hold by DCR.
5. A suspension order pursuant to Section 104.06(d)(1).
(b) For hearings authorized by subsection (a) and Section 104.06(d)(1), an administrative hearing shall be held within 10 days of the suspension order, unless the Licensee and DCR mutually agree to a later date. Pre-hearing disclosures pursuant to subsection (e) shall be sent by simultaneous email service upon the other party and the hearing officer no later than two (2) days before the hearing. An Applicant may not conduct Commercial Cannabis Activity pending the outcome of the administrative hearing. Failure to request an administrative hearing within 5 days of the suspension order shall constitute a failure to exhaust administrative remedies.
(c) For all other hearings authorized by Subsection (a), a request for an administrative hearing shall be filed with DCR within 15 days of the date of mailing of the notice of DCR's action, unless a later date is provided in the notice. Failure to timely request an administrative hearing shall constitute a failure to exhaust administrative remedies. An Applicant or Licensee may continue to conduct Commercial Cannabis Activity until receipt of a hearing officer's final order upholding DCR's denial, suspension or other action that requires the Applicant or Licensee to cease Commercial Cannabis Activity. If DCR places an administrative hold on Cannabis and/or a Cannabis product, the hold shall remain in effect pending the outcome of the administrative hearing.
(d) DCR shall select a hearing officer and schedule an administrative hearing within 45 calendar days from the date DCR received the appeal, except that hearings as authorized in Sections 104.07 or 104.08 shall be scheduled within 60 days of the date DCR received the appeal. DCR shall mail the notice of the hearing to the appellant and the appellant's authorized agent or representative no later than 20 calendar days prior to the date of the hearing. The time for holding a hearing may be extended by mutual agreement between DCR and the appellant.
(e) Pre-Hearing Disclosures. No later than seven calendar days prior to an administrative hearing, DCR and the appellant shall make the following pre-hearing disclosures to the hearing officer, with simultaneous email service upon the other party: (i) a brief statement of the facts and issues relating to the appeal; (ii) a copy of all documentary evidence to be offered at the hearing; and (iii) a list of all witnesses to be presented at the hearing. The hearing officer shall not issue any decision relating to the appeal before the hearing.
(f) DCR may promulgate Administrative Hearing Procedures concerning hearing processes and procedures. Administrative hearings shall be conducted as follows:
1. The hearing shall be recorded by an audio device provided by DCR. Any party to the hearing may, at its own expense, cause the hearing to be audio recorded and transcribed by a certified court reporter;
2. DCR shall have the burden of proof by the preponderance of the evidence;
3. The hearing officer may accept evidence on which persons would commonly rely in the conduct of their business affairs;
4. The hearing officer may continue the hearing and request additional relevant information from any party; and
5. Within 30 days of the conclusion of the hearing, the hearing officer shall issue a written decision that includes a statement of the factual and legal basis of the decision. The hearing officer shall use a de novo standard of review and may uphold or reject, in whole or in part, DCR's action. The hearing officer may waive or reduce the administrative penalties in an NOV after considering the factors specified in 104.13(b).
The hearing officer's decision shall be sent by mail to the appellant and the appellant's authorized agent or representative and shall become final on the date of mailing date. The issuance of a final order from a hearing officer after an administrative appeal hearing exhausts administrative remedies.