Haw. Code R. § 11-850-151 - Remedies

(a) If the director determines that any person is violating any provision of this chapter, chapter 329D, HRS, or the person's license, the director may have that person served with a notice of violation and an order. The notice shall specify the alleged violation. The order may:

(1) Require that the alleged violator do any or all of the following:

(A) Cease and desist from the violation;

(B) Pay an administrative penalty of not less than $100 nor more than $1,000 for each separate violation; provided that each day on which a violation occurs or continues shall be counted as a separate violation; and

(C) Submit a corrective action plan within ten days and correct the violation at the alleged violator's expense; and

(2) Suspend or revoke a dispensary license pursuant to section 11-850-152 and section 329D-21, HRS.

(b) Subject to subsection (d), the order shall become final twenty days after service unless within those twenty days the alleged violator requests in writing a hearing before the director. When the director issues an order for immediate suspension or revocation of a dispensary license, the department shall provide an opportunity for a hearing to occur within two days after service of the order; provided that if the second day falls on a Saturday, Sunday, or state holiday, the hearing shall be held on the next day that is not a Saturday, Sunday, or State holiday. No order for suspension or revocation shall be stayed pending a hearing. After a hearing pursuant to this subsection, the director may affirm, modify, or rescind the order as appropriate.

(c) The department may consider multiple factors in assessing a penalty or ordering a remedial action against a dispensary licensee. The factors, any of which may be the basis for assessing a penalty or ordering a remedial action, include but are not limited to:

(1) Whether the violation violates criminal law or imminently jeopardizes the health or safety of the general public, qualifying patients, or qualifying out-of-state patients;

(2) Whether the violation creates a risk to the health or safety of the general public, qualifying patients, or qualifying out-of-state patients;

(3) Whether the violation is a violation of an administrative licensing requirement;

(4) Any prior violations;

(5) Actions taken to prevent or correct the violation;

(6) Whether the violation was deliberate;

(7) Whether the violation is likely to recur;

(8) The nature, circumstances, extent, gravity, and history of the violation and any prior violations; and

(9) Any other factors that may affect the health, safety, or welfare of the public, a qualifying patient, or a qualifying out-of-state patient.

(d) Upon a request for a hearing the director shall specify a time and place for the alleged violator to appear. After a hearing pursuant to this section, the director may affirm, modify, or rescind the order as appropriate. Any penalty imposed under this chapter shall become due and payable twenty days after the notice of penalty is served unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on a penalty, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Orders for suspension of a dispensary license shall become effective immediately upon service, whether or not a hearing is requested. No order for suspension or revocation shall be stayed pending a final decision. Whenever a hearing is requested on an order for revocation of a dispensary license, the order shall become effective upon completion of all review proceedings and the issuance of a final order confirming the revocation.

(e) When an applicant who has not received a license requests a hearing pursuant to section 329D-21, HRS, the department shall timely post that applicant's request on its website. A successful applicant may intervene as of right in any hearing by an unsuccessful applicant for the same license.

(f) Any hearing conducted under this section shall be conducted as a contested case under chapter 91, HRS, and chapter 11-1. If after a hearing held pursuant to this section the director finds that a violation or violations have occurred, the director shall affirm or modify any penalties imposed, or shall affirm or modify the order for remedial action, or both, or may order any other corrective action that may be appropriate. If, after a hearing on an order for remedial action or penalty contained in a notice, the director finds that no violation has occurred or is occurring, the director shall rescind the order or penalty.

(g) Notices under this section shall be served either by mail, return receipt requested, or in person. Notice shall be served upon the individual applicant or any employee who is present in the facility, and is effective upon receipt.

Notes

Haw. Code R. § 11-850-151

[Eff 12/14/15; §11-850-101; am, ren § 11-850-151, and comp 2/24/2022 ] (Auth: HRS §§ 321-9, 329D-7, 329D-27) (Imp: HRS §§ 329D-7, 329D-21) Comp 4/29/2022 Comp 11/17/2022 Am and comp 8/7/2023 Comp 4/5/2024 Comp 12/6/2024