Chapter 3796:5-6 Enforcement

3796:5-6-01 Scope of enforcement and enforcement powers.

Rules set forth in this chapter establish standards for the oversight and enforcement of the cultivation, processing, and testing of medical marijuana. Division 3796:5 of the Administrative Code also establish legal standards for the denial, suspension, or revocation of licenses issued by the department under Chapter 3796. of the Revised Code. If any portion of the rules is found to be invalid, the remaining portion of the rules shall remain in force and effect.

(A) Whenever it appears to the department that a medical marijuana entity issued a provisional license or certificate of operation by the department or a person possessing an employee identification card issued by the department has engaged in, is engaged in, or is about to engage in any act or practice declared to be prohibited by Chapter 3796. of the Revised Code or the rules promulgated in accordance with Chapter 3796. of the Revised Code, or when the department believes that it is necessary for the program's administration, implementation and enforcement, the department may do the following:

(1) Investigate activities which are, or are suspected to be, prohibited and charge an investigation assessment;

(2) Serve all summonses, subpoenas, administrative orders, notices, or other processes concerning the enforcement of laws regulating medical marijuana and medical marijuana products;

(3) Issue either administrative subpoenas ad testificandum or subpoenas duces tecum, or both, to compel the testimony of witnesses or the production of any books and records, in paper or electronic format, to be served by personal service or by certified mail, return receipt requested;

(a) If the subpoena is returned because of inability to deliver, or if no return is received within thirty days of the date of mailing, the subpoena may be served by ordinary mail. If no return of ordinary mail is received within thirty days after the date of mailing, service shall be deemed to have been made. If the subpoena is returned because of inability to deliver, the department may designate a person or persons to effect either personal or residence service upon the witness.

(b) The person designated to effect personal or residence service under this paragraph may be the sheriff of the county in which the witness resides or may be found or may be any other duly designated person.

(c) The fees and mileage of the person serving the subpoena shall be the same as those allowed by the courts of common pleas in criminal cases, and shall be paid from the funds of the department.

(4) Inspect, examine, or investigate any premises or vehicle where medical marijuana or medical marijuana products are grown, stored, cultivated, transported, processed, or tested, and any books and records in any way connected with any such activity;

(5) Require any cultivator, processor, or testing laboratory, or other person, upon demand, to permit an inspection of premises or vehicle during business hours or at any time of apparent operation, marijuana equipment, and marijuana accessories, or books and records; and to permit the testing of or examination of medical marijuana or medical marijuana products;

(6) Suspend, suspend without prior hearing, revoke, or refuse to renew a license or registration issued under Chapter 3796. of the Revised Code or the rules promulgated in accordance with Chapter 3796. of the Revised Code;

(7) Refuse to issue a provisional license or certificate of operation;

(8) Issue a cease and desist order;

(9) Impose a civil penalty in an amount not to exceed fifty thousand dollars for each violation, for any violation of Chapter 3796. of the Revised Code or the rules promulgated in accordance with Chapter 3796. of the Revised Code;

(10) Place conditions on an applicant, license, licensee, or registrant; and

(11) Exercise any other power or duty authorized by Chapter 3796. of the Revised Code or the rules promulgated in accordance with Chapter 3796. of the Revised Code.

(B) A cultivator, processor, or testing laboratory whose certificate of operation has been suspended shall not sell, offer for sale, transport, or conduct any operations outside the facility related to medical marijuana. Employees of the facility may enter the premises of the facility for the necessary care and maintenance of the premises and any medical marijuana and medical marijuana products. The removal of medical marijuana from a cultivator, processor, or testing laboratory is strictly prohibited during an active suspension under this chapter.

(C) The revocation of a provisional license or certificate of operation shall immediately terminate the employee identification cards of persons employed by the licensee. A cultivator, processor, or testing laboratory whose certificate of operation has been revoked shall close the facility and prohibit anyone from entering the facility, other than employees with the department, law enforcement, or other individuals carrying out official duties related to the revocation of the certificate of operation.

(D) Information obtained by the department shall be kept confidential and only disclosed to department employees, law enforcement, and persons deemed by the department to have a valid reason for access. Unauthorized disclosure shall be cause for discipline, including dismissal, if disclosure was by a department employee; and shall be grounds for disciplinary action against a cultivator, processor, or testing laboratory or any employee.

(E) Department employees will not serve as expert witnesses in private litigation. In addition, the department may move to quash any subpoena that seeks fact testimony from department employees in private litigation. The department may certify as to the status of any person as a licensee or registered employee of a licensee. Such certification shall be admissible in any court as prima-facie evidence as to the status of the person.

Effective: 5/6/2017
Five Year Review (FYR) Dates: 05/06/2022
Promulgated Under: 119.03
Statutory Authority: R.C. 3796.03
Rule Amplifies: R.C. 3796.03

3796:5-6-02 Prohibited activities.

(A) Any of the following shall be considered threats to the public health, welfare, or safety and shall be sufficient cause for a provisional license, certificate of operation, or employee identification card of a cultivator, processor, or testing laboratory, or any combination thereof, or employee to be denied, suspended with or without a hearing, revoked, fined, have conditions placed upon such license, or subject to other actions authorized under paragraph (A) of rule 3796:5-6-01 of the Administrative Code, or any combination of such actions necessary to ensure the program's administration, implementation and enforcement:

(1) The distribution of medical marijuana to minors has occurred;

(2) Revenue from the sale of medical marijuana has gone to criminal enterprises;

(3) Medical marijuana has been diverted across state lines in a manner prohibited by either state;

(4) Trafficking of illegal drugs or illegal activities has occurred on the premises;

(5) Illegal or unauthorized possession or use of a firearm at a facility;

(6) Driving while drugged or otherwise intoxicated;

(7) Drug or alcohol abuse;

(8) Permitting the cultivation of medical marijuana in a facility outside the designated marijuana cultivation area;

(9) Failure to comply with a subpoena issued by the department;

(10) Acceptance of medical marijuana from a source other than a cultivator or processor licensed by the department, unless by a licensed testing laboratory pursuant to the rules promulgated for testing laboratories;

(11) Failure to maintain effective controls and security measures designed to ensure compliance with the law or protect the facility, employees, and medical marijuana;

(12) Knowing material misstatements or omissions in the inventory tracking system, where, in the exercise of reasonable diligence, the person should have obtained such knowledge prior to the misstatement or omission;

(13) A finding by the department that the medical marijuana entity, after having the license suspended or subject to mandatory corrections under any rules promulgated in accordance with Chapter 3796. of the Revised Code, has violated the terms of the suspension or failed to perform the mandatory corrections;

(14) Operational failures that endanger public health, create a likelihood of contamination or diversion, or a pattern of deviation of standard operating procedures;

(15) Aiding or assisting another person in violating any provision of Chapter 3796. of the Revised Code or the rules promulgated in accordance with Chapter 3796. of the Revised Code;

(16) Permitting another person to use the licensee's license;

(17) Cultivating, processing, transporting, or testing medical marijuana in violation of Chapter 3796. of the Revised Code or the rules promulgated in accordance with Chapter 3796. of the Revised Code;

(18) Failure to cooperate or give information to the department, law enforcement authorities or any other enforcement agency upon any matter arising out of conduct at any cultivator, processor, or testing laboratory; or

(19) Discontinuance of business for more than ninety days, unless the director or the director's designee approves an expansion of such period for good cause shown, upon a written request.

(B) Any of the following shall be considered threats to public health, welfare, or safety and shall be sufficient cause for a provisional license, certificate of operation, or employee identification care of a cultivator, processor, or testing laboratory, or any combination thereof, or employee to be denied, suspended with or without a hearing, revoked, fined, have conditions placed upon such registration, or any combination of such actions necessary to ensure the program's administration, implementation and enforcement:

(1) False or misleading statements in or involving a license or registration application;

(2) Any civil or disciplinary action is taken, or has been taken, against any persons relating to a professional license;

(3) Failure to continuously escort an otherwise unauthorized person within an area designated by the facility as a controlled access area, unless that person is an investigator or employee of the department, authorities from local licensing authority or any state or law enforcement agency;

(4) Failure to promptly inform the department of any changes of address or other material information contained in the application;

(5) Discipline, including, but not limited to, denial, suspension or revocation of a license, by any state or any territory of the United States or any foreign jurisdiction;

(6) Failure to report to the department within fourteen days of any adverse final action taken against a license in any state or any territory of the United States or any foreign jurisdiction, any governmental agency, any law enforcement agency or any court;

(7) Failure to respond to a written request for information by the department within ten business days, unless otherwise stated;

(8) Failure to keep accurate records in accordance with any rules promulgated in accordance with Chapter 3796. of the Revised Code;

(9) Operating in a manner inconsistent with the public health, safety, and welfare standards of the local governmental authority;

(10) A fraudulent or deceptive practice, transaction, representation or omission to the public, law enforcement or a representative of the department, regardless whether anyone relied on such practice, transaction, representation or omission;

(11) A finding by the department of a substantial discrepancy in a department inspection of any records and the subject matter of any records that are required under any rules promulgated in accordance with Chapter 3796. of the Revised Code;

(12) Allowing medical marijuana, or medical marijuana byproduct or scrap, to be used or disposed of in a manner not consistent with Chapter 3796. of the Revised Code or the rules promulgated in accordance with Chapter 3796. of the Revised Code; or

(13) Failure to maintain a good business repute. For purposes of this rule and making a determination of a failure to maintain good business repute, the department shall consider if the person has engaged in any conduct which would reflect on the reputation for honesty, integrity, and competence in business and personal dealings of the person. These would include, but not limited to, if the person has been determined to have engaged in forgery, embezzlement, nondisclosure, incomplete disclosure, misstatement of material facts, and manipulative or deceptive practices, or if the person has established a reputation for honesty, integrity, and competence.

(C) Whenever the department revokes or suspends a medical marijuana entity license, it shall notify the state of Ohio board of pharmacy, the state medical board of Ohio, law enforcement, and county sheriff's office whose jurisdiction includes the location of the medical marijuana entity.

Effective: 5/6/2017
Five Year Review (FYR) Dates: 05/06/2022
Promulgated Under: 119.03
Statutory Authority: R.C. 3796.03
Rule Amplifies: R.C. 3796.03

3796:5-6-03 General enforcement.

(A) No person whose employee identification card has been revoked, nor any person whose actions led to a medical marijuana entity's license being revoked, may make an application for any cultivator, processor, or testing laboratory license or employee identification card for at least five years from the date of such revocation or final judicial decision upon appeal of an order of revocation.

(B) If a license is voluntarily surrendered or is not renewed, the department shall not be prohibited from imposing other penalties permitted by Chapter 3796. of the Revised Code or the rules promulgated in accordance with Chapter 3796. of the Revised Code, on any such license or licensee.

(C) Adjudicatory hearings will be conducted pursuant to Chapter 119. of the Revised Code. Sanctions described under rule 3796:5-6-01 of the Administrative Code are not mutually exclusive and may be imposed in any combination.

Effective: 5/6/2017
Five Year Review (FYR) Dates: 05/06/2022
Promulgated Under: 119.03
Statutory Authority: R.C. 3796.03
Rule Amplifies: R.C. 3796.03