Or. Admin. Code § 845-025-8590 - Suspension, Cancellation, Civil Penalties, Sanction Schedule
(1) The Commission
may suspend or cancel:
(a) A license issued
under ORS 475C.005 to
475C.525 or
475C.548.
(b) A marijuana worker permit issued under
ORS 475C.273.
(c) A research certificate issued under ORS
475C.289.
(e) A laboratory license issued under ORS
475C.548.
(2) The Commission may cancel a license under
ORS 475C.265(1)(a)
only when the conduct poses a significant risk to public health and safety. A
significant risk to public health and safety includes, but is not limited to:
(a) Exercising licensed privileges while the
license is suspended, or in violation of restrictions imposed on the
license;
(b) Allowing minors at a
processor license;
(c) Prohibited
conduct involving a deadly or dangerous weapon or conduct that results in death
or serious injury;
(d) Prohibited
use of pesticides, fertilizers, and agricultural chemicals;
(e) Diversion of marijuana, inversion of
marijuana, or other conduct described in ORS
475C.185;
(f) Transferring or providing adulterated
marijuana items or hemp items to a licensee or consumer;
(g) Prohibited conduct by laboratory
licensees as described in OAR
845-025-5075;
(h) Failure to meet testing requirements as
described in OAR 845-025-5700 and OAR chapter
333, divisions 7 and 64;
(i)
Intentionally destroying, damaging, altering, removing, or concealing potential
evidence, or attempting to do so, or asking or encouraging another person to do
so.
(3) Civil Penalties.
(a) The Commission may impose a civil penalty
under ORS 475C.405. Civil penalties will
be calculated by multiplying:
(A) The number
of days in a suspension, if suspension could be or is being imposed, by $165
for licensees or certificate holders for Category II(b) violations;
(B) The number of days in a suspension, if
suspension could be or is being imposed, by $250 for licensees or certificate
holders for all other violation categories; or
(C) The number of days in a suspension, if
suspension could be or is being imposed, by $25 for permittees.
(b) The Commission may impose for
each violation of a provision of ORS
475C.600 to
475C.644 or OAR
845-025-7000 to
845-025-7190, a civil penalty of
no more than $500 for each day the violation occurs.
(A) For violations of OAR
845-025-7000 to
845-025-7190, civil penalties
will be calculated as described in OAR
845-025-7170(2).
(B) For violations of OAR
845-025-2800(4)(p),
845-025-2900(4),
or 845-025-3220(2)(e):
(i) Each violation of a provision of ORS
475C.600 to
475C.648 or a rule adopted
thereunder is a separate violation.
(ii) Each unit of sale that is in violation
of a rule or statute constitutes a separate violation.
(iii) Except as provided in subparagraph (iv)
of this paragraph, civil penalties will be assessed at $25 per violation with
an overall cap of $5,000 for all violations charged concurrently in a single
notice.
(iv) If a licensee has
previously been assessed a civil penalty under this paragraph, in assessing any
subsequent civil penalty under this paragraph within a two year period the
Commission will double the amount per violation and the overall cap for all
violations charged concurrently in a single notice.
(4) The Commission uses
the following violation categories for licensees licensed under
ORS475C.005 to
475C.525:
(a) Category I - Violations that make
licensee ineligible for a license or pose a significant risk to public health
and safety;
(b) Category II -
Violations that create a present threat or substantial likelihood of a present
threat to public health or safety;
(c) Category II(b) - Violations for sales to
a minor;
(d) Category III -
Violations that create a potential threat to public health or safety;
(e) Category IV - Violations that create a
climate conducive to abuses associated with the sale or manufacture of
marijuana items;
(f) Category V -
Violations inconsistent with the orderly regulation of the sale or manufacture
of marijuana items.
(5)
Violation sanctions.
(a) The Commission may
sanction a licensee, permittee, Commission-certified hemp grower, or
Commission-certified hemp handler in accordance with the guidelines set forth
in Exhibit 1, incorporated by reference.
(b) Exhibit 1 lists the proposed sanctions
for single or multiple violations that occur within a two year period for each
category described in section (3) of this rule. The Commission may allege
multiple violations in a single notice or may count violations alleged in
notices issued within the previous two year period toward the total number of
violations. In calculating the total number of violations, the Commission may
consider a proposed violation for which the Commission has not yet issued a
final order. The Commission reserves the right to sanction producer licensees
by imposing civil penalties without the option of suspension.
(c) The proposed sanctions in Exhibit 1 are
guidelines. If the Commission finds one or more mitigating or aggravating
circumstances, it may assess a lesser or greater sanction, up to and including
revocation. Mitigating circumstances may decrease the penalty but will not
dismiss the violation. The Commission may decrease or increase a sanction to
prevent inequity or to take account of particular circumstances in the case.
The Commission may use a standard 30 percent reduction in sanctions during the
settlement process.
(d) Mitigating
circumstances include, but are not limited to:
(A) Making a good faith effort to prevent a
violation. Examples of a good faith effort to prevent a violation may include
employee training programs, management oversight, and the existence and
enforcement of relevant policies. This mitigation factor reduces the sanction
by three percent.
(B) Cooperation
in the violation investigation demonstrating the licensee, permittee,
certificate holder, Commission-certified hemp grower, or Commission-certified
hemp handler accepts responsibility. This mitigation factor reduces the
sanction by five percent.
(C)
Self-reporting of a violation by a licensee or applicant. This mitigation
factor reduces the sanction by seven percent.
(D) The licensee or applicant has
demonstrated to the satisfaction of the Commission that the conduct that led to
the violation is not persistent or serious. This mitigation factor reduces the
sanction by three percent.
(E) The
licensee or applicant has demonstrated to the satisfaction of the Commission a
willingness and ability to control the licensed premises and inventory. This
mitigation factor reduces the sanction by two percent.
(F) The licensee or applicant was not
personally involved or aware of the violation occurring. This mitigation factor
reduces the sanction by 10 percent.
(G) Repeated violations in a two-year period
do not qualify for the mitigating factors described in paragraphs (A), (D), and
(E) of this subsection on a subsequent violation of the same rule.
(e) Aggravating circumstances
include, but are not limited to:
(A) Receiving
a prior warning about one or more compliance problems. This aggravating
circumstance increases the sanction by two percent.
(B) Repeated failure to comply with laws.
This aggravating circumstance increases the sanction by two percent.
(C) Failure to use age verification equipment
purchased as an offset to a previous penalty. This aggravating circumstance
increases the sanction by two percent.
(D) Efforts to conceal a violation. This
aggravating circumstance increases the sanction by five percent.
(E) Intentionally committing a violation.
This aggravating circumstance increases the sanction by five percent.
(F) A violation involving more than one
consumer or employee. This aggravating circumstance increases the sanction by
two percent.
(G) A violation
involving a juvenile. This aggravating circumstance increases the sanction by
four percent.
(H) A violation
resulting in injury or death. This aggravating circumstance increases the
sanction by six percent.
(I) A
violation that occurred at a licensed premises that has been granted a security
waiver. This aggravating circumstance increases the sanction by two
percent.
(f) Aggravating
circumstances as described in subsection (e) of this section cannot increase
the penalty beyond a maximum penalty of $10,000 per violation.
(g) License suspensions that are decreased or
increased as described in subsections (c) to (e) of this section will be
rounded to the nearest whole number of days.
(6) A licensee, certificate holder,
Commission-certified hemp grower, or Commission-certified hemp handler may not
avoid the sanction for a violation or the application of the provision for
successive violations by changing the corporate structure. For example, by
adding or dropping a partner or converting to another form of legal entity when
the individuals who own, operate, or control the business are substantially
similar.
(7) For the purposes of
these rules, "a violation of this rule" means a violation of any provision of
the rule.
Notes
To view attachments referenced in rule text, click here to view rule.
Statutory/Other Authority: ORS 475C.017, 475C.644 & 571.337
Statutes/Other Implemented: ORS 475C.109, 475C.265, 475C.405, 475C.548, 475C.628, 475C.644 & 571.337
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