4 Del. Admin. Code § 5001-14.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 5001-14.0 - Enforcement, Fines, and Penalties

14.1 Enforcement activities

14.1.1 The Division shall be responsible for enforcement of the Act and this regulation.

14.1.2 The Division shall conduct administrative inspections of marijuana establishments to ensure compliance with the Act.

14.1.3 The Division will provide a summary of deficiencies recorded during an inspection or investigation to the marijuana establishment.

14.1.3.1 The marijuana establishment may be required to provide a plan of corrective action, including expected completion dates for the correction of all deficiencies listed, within a time proscribed by the Division.

14.1.4.2 A follow-up inspection may be conducted to ensure that all deficiencies have been corrected.

14.2 Commissioner actions

14.2.1 Whenever the Commissioner finds a marijuana establishment guilty of a violation of the Act or this regulation, the Commissioner shall have the power and authority to take any of the following actions alone or in combination:

14.2.1.1 Impose a fine

14.2.1.2 Suspend a license

14.2.1.3 Cancel a license

14.2.1.4 Require a marijuana establishment to take corrective actions

14.2.1.5 Order a recall of marijuana or marijuana products

14.2.2 Fines

14.2.2.1 The Commissioner may impose a fine when the public welfare and morals would not be impaired by the imposition of the fine and the payment of the sum of money will achieve the desired disciplinary purposes.

14.2.2.2 Any fine imposed by the Commissioner shall not exceed 10% of the estimated average gross monthly sales of marijuana and marijuana products for the operations of the marijuana establishment within the 12 months immediately preceding the date of the finding of guilt, provided that the amount exceeds $250.

14.2.2.3 In no case shall the Commissioner issue a fine that is less than $250.

14.2.2.4 Each marijuana establishment shall maintain financial records that clearly demonstrate the marijuana establishment's estimated average gross monthly sales of marijuana and marijuana products for the operation of the business within the 12 months preceding the date of the marijuana establishments hearing before the Commissioner and shall, upon demand of the Commissioner, produce the records.

14.2.2.5 Fines issued by the Commissioner shall be paid 30 days from the date of the written decision and order is issued which contains the fine. If a marijuana establishment fails to pay an imposed fine and the matter is not stayed on appeal, the licensee shall be violated under this section for a hearing before the Commissioner, and subject to additional fines, suspension, or cancellation of the license.

14.2.3 License suspension

14.2.3.1 The Commissioner shall suspend a marijuana establishment's license at any time the Commissioner is required to do so by Title 4 of the Delaware Code.

14.2.3.2 The Commissioner may suspend a marijuana establishment's license when the public welfare and morals would not be impaired by the imposition of the suspension and the suspension will achieve the desired disciplinary purposes.

14.2.3.3 The Commissioner may suspend a marijuana establishment's license if the license's violations of Title 4 of the Delaware Code or this regulation are repeated and continuous.

14.2.3.4 The Commissioner may suspend a marijuana establishment's license if the licensee has failed to pay any fine imposed.

14.2.3.5 The Commissioner may suspend any activity that the marijuana establishment license authorizes the licensee to carry out, or all activities that the license authorizes the licensee to carry out.

14.2.3.6 The length of the suspension is at the discretion of the Commissioner.

14.2.3.7 When the license of a marijuana establishment is suspended, the Commissioner, or his designee, shall post conspicuously upon the outer door of the licensed premise a sign stating at minimum the following, "MARIJUANA LICENSE SUSPENDED FOR VIOLATION OF THE DELAWARE MARIJUANA CONTROL ACT". The design of the sign, including the lettering and coloring, must be as designated by the Commissioner. The sign shall remain at all times the property of the Commissioner and shall, remain where so affixed by an officer of the Division until removed by order of the Commissioner. The licensee shall not remove, tamper with, or in any way mutilate the sign, directly or indirectly. Violation of this subsection is cause for the cancellation of the license.

14.2.3.8 When the Commissioner suspends a license, the licensee must not, make any sales, deliveries, or in any manner dispose of the marijuana or marijuana products in the licensee's possession during the period of suspension. In the event that it appears that a sale, delivery, or any disposition of marijuana or marijuana products has been made, the licensee shall be cited to appear before the Commissioner for a hearing. If found guilty, the licensee's license shall be canceled.

14.2.4 License cancellation

14.2.4.1 The Commissioner may cancel a marijuana establishment's license at any time the Commissioner is authorized to do so by Title 4 of the Delaware Code.

14.2.4.2 The Commissioner may cancel a marijuana establishment's license if the licensee has committed violations of Title 4 of the Delaware Code or this regulation which are repeated and continuous, and where the imposition of fines and suspension have not had the desired deterrent effect.

14.2.5 Corrective actions

14.2.5.1 The Commissioner may require a marijuana establishment to take any corrective action necessary and reasonable to prevent continued violations of Title 4 of the Delaware Code or this regulation.

14.2.5.2 The Commissioner may consider the cost of any corrective action in determining a reduction of a fine issued against a marijuana establishment.

14.2.6 Recalls

14.2.6.1 The Commissioner may require a marijuana establishment to recall any marijuana or marijuana products based on evidence that the marijuana or marijuana products:

14.2.6.1.1 Contain an unauthorized pesticide;

14.2.6.1.2 Failed a mandatory test and were not mitigated pursuant to testing protocols;

14.2.6.1.3 Are determined unfit for human use, consumption, or application;

14.2.6.1.4 Are not properly packaged or labeled;

14.2.6.1.5 Are not cultivated or manufactured by a licensed marijuana establishment; or

14.2.6.1.6 Pose a risk to public health and safety.

14.2.6.2 In the event a recall is required, the Commissioner shall:

14.2.6.2.1 Notify the marijuana establishments impacted by the recall;

14.2.6.2.2 Notify the public;

14.2.6.2.3 Lock all marijuana or marijuana products subject to the recall in the seed-to-sale tracking system; and

14.2.6.2.4 Require a marijuana establishment to notify individuals whom may have purchased the marijuana or marijuana products subject to the recall.

14.2.7 Seizure and administrative holds of marijuana or marijuana products

14.2.7.1 Nothing in this regulation prevents the Division from seizing marijuana or marijuana products as permitted by law.

14.2.7.2 The Division may utilize an administrative hold in lieu of seizing marijuana or marijuana products to preserve marijuana and marijuana products during an investigation.

14.2.7.2.1 The Division shall issue a notice to the marijuana establishment of the administrative hold. The notice shall provide a description of the marijuana or marijuana products subject to the administrative hold, the reason for issuing the hold, and the date that the administrative hold expires. The Division may lift the administrative hold at any time prior to the expiration by informing the marijuana establishment in writing.

14.2.7.2.2 Following the issuance of the notice of administrative hold, the Division shall identify the marijuana or marijuana products subject to the administrative hold in the seed-to-sale tracking system.

14.2.7.2.3 The marijuana establishment must completely and physically segregate the marijuana or marijuana products subject to the administrative hold in a secure location on the licensed premise.

14.2.7.2.4 The marijuana establishment is prohibited from selling, giving away, transferring, transporting, or destroying the marijuana or marijuana products subject to the administrative hold, unless approved by the Division in writing.

14.2.7.2.5 An administrative hold shall not prohibit the marijuana establishment from continuing the cultivation process of marijuana or marijuana products that are subject to an administrative hold.

14.2.7.2.6 An administrative hold shall expire after 45 days unless a new notice of administrative hold is issued by the Division.

14.2.7.2.7 If the marijuana or marijuana products subject to an administrative hold are associated with a violation pending before the Commissioner, the administrative hold shall continue until the conclusion of the hearing and any related appeal.

14.2.7.2.8 A marijuana establishment may petition the Commissioner for a hearing to lift the administrative hold. The Division shall present the reason and justification for the administrative hold. The Commissioner may affirm, revoke or modify the administrative hold.

4 Del. Admin. Code § 5001-14.0

28 DE Reg. 226 (9/1/2024) (Final)