Disciplinary Guidelines and Fines

 

DEPARTMENT OF HEALTH

RULE NO.:RULE TITLE:

64ER17-6Disciplinary Guidelines and Fines

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC, HEALTH, SAFETY, OR WELFARE:  Pursuant to Chapter 2017-232, § 14, at 45, Laws of Florida, the Department is not required to make findings of an immediate danger to the public, health, safety, or welfare.

REASONS FOR CONCLUDING THAT THE PROCEDURE USED IS FAIR UNDER THE CIRCUMSTANCES:

The Department of Health is directed by Chapter 2017-232, § 14, at 45, Laws of Florida, to adopt emergency rules to implement section 381.986, Florida Statutes.

SUMMARY:  Emergency rule 64ER17-6 provides for the disciplinary guidelines and fines for violations of section 381.986, Florida Statutes and department rules.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Courtney Coppola at [e-mail].

 

THE FULL TEXT OF THE EMERGENCY RULE IS:

 

64ER17-6 Disciplinary Guidelines and Fines

(1) The penalties listed for the following violations of section 381.986, Florida Statutes, or department rule, shall be used as guidelines in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this rule. Penalties are applicable per instance of each violation and every day that a violation occurs shall be considered a separate violation.

(a) Approval and renewal violations.

1. Attempt by any person or entity to procure initial medical marijuana treatment center approval by bribery, fraudulent misrepresentation, or extortion. Any violation, revocation or denial of approval and $5,000 fine.
2. Attempt by any person or entity to renew a license by bribery or fraud. For the first violation, revocation of the license with the ability to reapply upon payment of a $5,000 fine to permanent revocation. After the first violation, permanent revocation with a $5,000 fine.

(b) Improper Dispensations and Misuse of the Medical Marijuana Use Registry (MMUR).

1. Dispensation by a MMTC of more than a 70-day supply of low-THC cannabis or medical cannabis to a patient or caregiver. First violation, from a letter of warning to a $500 fine; second violation, $500 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
2. Failure of a MMTC to enter an employee name or unique employee identifier into the MMUR for each dispensation of low-THC cannabis, medical cannabis, or cannabis delivery device. First violation, from a letter of warning to a $500 fine; second violation, $500 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
3. Failure of a MMTC to verify in the MMUR, prior to dispensing to the patient or their caregiver, that a physician has entered a valid order for low-THC cannabis, medical cannabis, or a cannabis delivery device for that patient. First violation, from a letter of warning to a $500 fine; second violation, $500 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
4. Failure of a MMTC to verify in the MMUR, prior to dispensing to the patient or their caregiver, that: (1) the patient has an active registration in the MMUR, (2) the patient or the patient’s caregiver holds a valid and active identification card, and (3) that there is a sufficient number of milligrams of recommended product remaining to fill an order. Failure to verify any of these three requirements constitutes a violation. First violation, from a letter of warning to a $500 fine; second violation, $500 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
5. Failure of a MMTC to record in the MMUR the: (1) date, (2) time, (3) quantity of medical marijuana dispensed, (4) form of medical marijuana dispensed, (5) type of marijuana delivery device dispensed if applicable, and (6) the name and MMUR identification number of the patient or caregiver for each dispensation. Failure to record any of these six requirements constitutes a violation. First violation, from a letter of warning to a $500 fine; second violation, $500 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
6. Dispensation of low-THC cannabis, medical cannabis, or cannabis delivery device by a MMTC to a qualified patient who is younger than 18 years of age. First violation, $500 fine; subsequent violation, from a $500 fine to a $500 fine and suspension or revocation. 
7. Dispensation or selling of any other type of cannabis, alcohol, or illicit drug-related product, including pipes, bongs, or wrapping papers, other than a marijuana delivery device required for the medical use of marijuana as specified in a physician certification, by an MMTC at a dispensing facility. First violation, $500 fine; subsequent violation, from a $500 fine to a $500 fine and suspension or revocation. 
8. Dispensation of low-THC cannabis, medical cannabis, or a cannabis delivery device from the premises of a MMTC between the hours of 9 p.m. and 7 a.m. First violation, $500 fine; subsequent violation, from a $500 fine to a $500 fine and suspension or revocation.
9. Creates a patient or caregiver in the MMUR using misleading, incorrect, false, or fraudulent information. Any qualified ordering physician who violates this subparagraph is subject to a 180-day suspension from access to the MMUR. This penalty does not prohibit any further appropriate action by the department or respective board against the qualified ordering physician.
10. Creates a duplicate patient or caregiver in the MMUR. Any qualified ordering physician who violates this subparagraph is subject to a 180-day suspension from access to the MMUR. This penalty does not prohibit any further appropriate action by the department or respective board against the qualified ordering physician.
11. Failure to update the MMUR within 7 days after any change(s) is made to the original physician certification to reflect such change(s). Any qualified ordering physician who violates this subparagraph is subject to a 180-day suspension from access to the MMUR. This penalty does not prohibit any further appropriate action by the department or respective board against the qualified ordering physician.
12. Improper disclosure of personal information of a qualified patient or caregiver. Personal information includes the patient and caregiver names, birth dates, telephone numbers, addresses, electronic mail addresses, social security numbers and biometric identifiers. Violations of this subparagraph by an MMTC or an approved law enforcement MMUR user, first violation, from a letter of warning to a $500 fine; second violation, $500 fine and a 180-day suspension from access to the MMUR; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation of access to the MMUR. Any physician who violates this subparagraph is subject to a 180-day suspension from access to the MMUR and this penalty does not prohibit any further appropriate action by the department or respective board against the physician.
13. Misuse of or improper access to the MMUR. Misuse or improper access includes:
    1. Failure of a MMTC or other approved user to establish or enforce policies and procedures restricting access to the MMUR only to those individuals authorized by section 381.986, Florida Statutes, and whose access has been approved by the department;
    2. Failure of a MMTC or other approved user to establish or enforce policies and procedures preventing personnel from sharing login and password information or accessing the MMUR on another individual’s account; and
    3. Use of data from the MMUR for cold-calling or otherwise soliciting patients or caregivers.

Violations of this subparagraph by an MMTC or an approved law enforcement MMUR user, first violation, from a letter of warning to a $500 fine; second violation, $500 fine and a 180-day suspension from access to the MMUR; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation of access to the MMUR. Any physician who violates this subparagraph is subject to a 180-day suspension from access to the MMUR and this penalty does not prohibit any further appropriate action by the department or respective board against the physician.

(c) MMTC operational violations.

1. Failure of a MMTC to maintain qualifications for approval. Suspension or revocation of MMTC license.
2. Endangering the health, safety, or security of a qualified patient by a MMTC. First violation, a letter of warning and a fine up to $500; second violation, $1,000 fine; subsequent violation, $1,000 fine to a $1,000 fine and suspension or revocation.
3. Employment of an owner, officer, board member, manager, or employee by a MMTC who has been rendered ineligible under section 381.986(9), Florida Statutes, or who has been convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the business of a medical marijuana treatment center. First violation, a $250 to $500 fine and license suspension. Subsequent violation, from a $1,000 fine and license suspension to a $5,000 fine and license revocation.
4. Employment of an owner, officer, board member, manager, or employee by a MMTC whose license or the authority to engage in any regulated profession, occupation, or business that is related to the business practices of a medical marijuana treatment center has been suspended, revoked, or otherwise acted against by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law. First violation, a $250 fine to $500 fine and license suspension; subsequent violation, from a $1,000 fine and license suspension to a $5,000 fine and license revocation. If the license or authority to engage in a regulated profession, occupation, or business has been reinstated or otherwise cleared of disciplinary obligations, the department will consider such reinstatement as a mitigating factor.
5. Making or filing a report or record that the MMTC knows to be false. First violation, from a letter of warning to a $500 fine; second violation, $1,000 fine; subsequent violations, from a $1,000 fine to a $1,000 fine and suspension or revocation.
6. Willfully failing to maintain a record required by section 381.986, Florida Statutes, or department rule. First violation, letter of warning and a fine up to $500; second violation, $1,000 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
7. Willfully impeding or obstructing an employee or agent of the department in furtherance of his or her official duties. First violation, letter of warning to a $500 fine; subsequent violation, from a $1,000 to $5,000 fine up to a $1,000 to $5,000 fine and suspension or revocation.
8. Engaging in fraud or deceit, negligence, incompetence, or misconduct in the business practices of a MMTC. First violation, letter of warning and a fine up to $500; second violation, $1,000 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
9. Making misleading, deceptive, or fraudulent representations in or related to the business practices of a MMTC. First violation, from a letter of warning to a $500 fine; second violation, $1,000 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
10. Making misleading, deceptive, or fraudulent representations in its advertising. Advertising means the act of providing consideration for the publication, dissemination, solicitation, or circulation of visual, oral, or written communication, to induce directly or indirectly any person to patronize a particular MMTC, or to purchase particular medical marijuana or a medical marijuana-infused product. Advertising includes marketing, but does not include packaging or labeling. Advertising proposes a commercial transaction or otherwise constitutes commercial speech. First violation, from a letter of warning to a $500 fine; second violation, $1,000 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
11. Violating a lawful order of the department or an agency of the state, or failure to comply with a lawfully issued subpoena of the department or an agency of the state. First violation, from a letter of warning to a $500 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
12. Employment of a qualified physician by a MMTC or independent testing laboratory. First violation, from a letter of warning to a $500 fine; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
13. Use of a pesticide, fungicide, or herbicide other than those permitted for use by department rule. The presence of an unapproved pesticide, fungicide, or herbicide in the proximity of a MMTC facility or a failed test for an unapproved pesticide, fungicide, or herbicide constitute the use of an unapproved pesticide, fungicide, or herbicide. In addition to the mitigating or aggravating factors listed in subsection (2) below, the following factors will be considered:

a. The toxicity of the unapproved pesticide, fungicide, or herbicide;

b. The number of plants exposed; and

c. The number of individuals exposed.

For the first violation, from a $1,000 to $5,000 fine up to a $1,000 to $5,000 fine and license suspension; subsequent violations, from a $1,000 to $10,000 fine up to a $1,000 to $10,000 fine and license suspension or revocation.

14. The wholesale of low-THC cannabis, medical cannabis, low-THC cannabis products, or medical cannabis products to any entity other than a licensed MMTC. The sale of each plant or cannabis product constitutes a separate violation. From a $1,000 to $10,000 fine up to a $1,000 to $10,000 fine and suspension or revocation.
15. Operating a cultivation, processing, or dispensing facility without prior authorization from the department. First violation, a letter of warning and fine up to $500; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
16. Operating a number of dispensing facilities that exceed the provision of section 381.986(8)(a)5., Florida Statutes. First violation, a letter of warning and fine up to $500; subsequent violation, from a $1,000 fine to a $1,000 fine and suspension or revocation.
17. Failure to notify the department of a sale of a dispensing facility slot within 3 days of sale. First violation, a letter of warning and fine up to $500; subsequent violation, $1,000 fine to a $1,000 fine and suspension or revocation.
18. Failure to possess a valid certification of registration issued by the Department of Agriculture and Consumer Services pursuant to section 581.131, Florida Statutes, unless the licensee was licensed under the provisions of section 381.986(8)(a)2.b., Florida Statutes. First violation, a letter of warning and fine up to $500; subsequent violation, $1,000 fine to a $1,000 fine and suspension or revocation.
19. Failure to employ a medical director to supervise the activities of the MMTC. Any violation, $1,000 fine to a $1,000 fine and suspension or revocation.
20. The wholesale purchase of marijuana or low-THC cannabis from, or a distribution of marijuana or low-THC cannabis to, another MMTC, without the MMTC seeking to make a wholesale purchase of marijuana submitting proof of harvest failure to and approval from the department. Harvest failure means a catastrophic loss of growing plants that presents a substantial risk of severe impact of a MMTC’s ability to supply patients with low-THC or medical cannabis products. Any violation, a $1,000 to $10,000 fine up to a $1,000 to $10,000 fine and suspension or revocation.
21. Contracting for services related to the operations of a MMTC in violation of section 381.986(8)(e), Florida Statutes. Any violation, $1,000 to $10,000 fine up to a $1,000 to $10,000 fine and suspension or revocation.
22. Failure to notify the department in writing at least 60 days prior to the anticipated date of a change in ownership of a MMTC. Any violation, $1,000 to $10,000 fine up to a $1,000 to $10,000 fine and suspension or revocation.
23. Executing a change in ownership of a MMTC without prior department approval. Any violation, from a $1,000 to $5,000 fine up to a $1,000 to $5,000 fine and suspension or revocation.
24. Failure to execute a recall as required by the department. Any violation, a $1,000 to $5,000 fine up to a $1,000 to $5,000 fine and suspension or revocation.
25. Operating a MMTC dispensing facility within 500 feet of the real property that comprises a public or private elementary, middle, or secondary school, unless the county or municipality approves the location through a formal proceeding. Any violation, from a $1,000 fine up to a $1,000 fine and suspension or revocation.
26. Growing low-THC cannabis or medical marijuana in an environment other than an enclosed structure. Any violation, $500 fine per plant to $500 fine per plant and suspension or revocation.
27. Growing low-THC cannabis or medical marijuana in the same enclosed structure as other plants. Any violation, a $500 fine per plant to a $500 fine per plant and suspension or revocation.
28. Failure to inspect seeds and growing plants for plant pests that endanger or threaten the horticultural and agricultural interests of the state, or failure to notify the Department of Agriculture and Consumer Services within 10 calendar days after a determination that a plant is infested or infected by such plant pest, and implement and maintain phytosanitary policies and procedures. Any violation, a $500 fine to a $500 fine and suspension or revocation.
29. Failure to perform fumigation or treatment of plants, or remove and destroy infested or infected plants, in accordance with Chapter 581, Florida Statutes, and any rules adopted thereunder. Any violation, a $500 fine to a $500 fine and suspension or revocation.
30. Processing of low-THC cannabis, medical cannabis, low-THC cannabis products, or medical cannabis products in an environment other than an enclosed structure. Any violation, a $500 fine to a $500 fine and suspension or revocation.
31. Processing of low-THC cannabis or medical cannabis in the same enclosed structure as other plants or products. Any violation, a $500 fine to a $500 fine and suspension or revocation.
32. Failure to package low-THC cannabis products or medical cannabis products in compliance with the United States Poison Prevention Packaging Act of 1970, 15 U.S.C. ss. 1471 et seq. Any violation, a $500 fine to a $500 fine and suspension or revocation.
33. Failure to label low-THC cannabis products or medical cannabis products in compliance with section 381.986(8)(e)10.f., Florida Statutes. Any violation, a $500 fine to a $500 fine and suspension or revocation.
34. Failure to reserve two processed samples from each batch and retain such samples for at least 9 months in compliance with Section 381.986(8)(e)10.d., Florida Statutes. Any violation, a $500 fine to a $500 fine and suspension or revocation.
35. Failure to maintain a security system or video surveillance system in compliance with section 381.986(8)(f), Florida Statutes. Any violation, a $500 fine to a $500 fine and suspension or revocation.
36. Failure to ensure at least two MMTC employees, or two employees of a security agency with whom the MMTC contracts, are on site at cultivation, processing, and storage facilities at all times. Any violation, a $500 fine to a $500 fine and suspension or revocation.
37. Failure to establish or enforce policies and procedures which require each employee to wear a photo identification badge at all times while on the premises. Any violation, a $500 fine to a $500 fine and suspension or revocation.
38. Failure to establish or enforce policies and procedures which require each visitor to wear a visitor’s pass at all times while on the premises. Any violation, a $500 fine to a $500 fine and suspension or revocation.
39. Failure to establish or enforce policies and procedures which require an alcohol and drug-free workplace. Any violation, a $1,000 to $10,000 fine to a $1,000 to $10,000 fine and suspension or revocation.
40. Failure to report to local law enforcement within 24 hours after the MMTC is notified or becomes aware of the theft, diversion, or loss of low-THC cannabis or medical cannabis. Any violation, a $1,000 to $10,000 fine to a $1,000 to $10,000 fine and suspension or revocation.
41. Failure to establish or enforce policies and procedures which require the safe transport of low-THC cannabis or medical marijuana to MMTC facilities, independent testing laboratories, or patients or caregivers in compliance with section 381.986(8)(g), Florida Statutes. Any violation, a $500 fine to a $500 fine and suspension or revocation. The minimum requirements for safe transport are:

a. Maintenance of a transportation manifest for each delivery, which must be retained for at least 1 year;

b. Ensuring that only vehicles in good working order are used to transport low-THC and medical cannabis;

c. Ensuring that low-THC cannabis and medical cannabis is locked in a separate compartment or container within the vehicle;

d. Ensuring that at least two persons are in a vehicle transporting low-THC cannabis or medical cannabis, and that at least one person remains in the vehicle while low-THC cannabis or medical cannabis is being delivered; and

e. Ensuring that all employees transporting or delivering low-THC cannabis or medical cannabis receive specific safety and security training.

42. Materially deviating from an application for licensure without prior approval from the department. Any violation, a $1,000 fine to $10,000 fine up to a $1,000 fine to $10,000 fine and suspension or revocation.

43. Failure to comply with a record inspection request from the department within 14 days. Any violation, a $500 fine to a $500 fine and suspension or revocation.

44. Failure to ensure that all employees are at least 21 years of age or older. Any violation, a $500 fine to a $500 fine and suspension or revocation.

45. Failure to ensure that all marijuana and marijuana products are secured in a secured, locked room or vault. Any violation, a $1,000 to $10,000 fine up to a $1,000 fine to $10,000 fine and suspension or revocation.

46. Displaying marijuana or marijuana products in a waiting room of a dispensing facility, or dispensing in a waiting room of a dispensing facility. Any violation, $500 fine to $500 fine and suspension or revocation.

(d) Violation of any other provision of section 381.986, Florida Statutes, or of department rule. The full range of penalties listed in this rule shall be considered for violations pursuant to this paragraph.

(2) Circumstances which shall be considered for the purposes of mitigation or aggravation of penalty shall include the following:

(a) Severity of the violation;

(b) Danger to the public;

(c) Actual damage, physical or otherwise, to the patient;

(d) Effort to prevent the violation;

(e) Effort to correct the violation, or the refusal to correct or stop the violation;

(f) Level of cooperation with the department’s investigation into the violation;

(g) The number of previous violations for failure to comply with provisions of the Florida Statutes or department rules;

(h) Efforts to conceal violations; and

(i) Any other mitigating or aggravating circumstances.

(3) Where several of the violations occur in one case, or several cases being considered together, the penalties shall be cumulative and consecutive.

(4) A MMTC may not avoid penalty for a violation or application of the provision for subsequent 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 MMTC are substantially similar.

Rulemaking Authority 381.986(10)(h) FS. Law Implemented 381.986 FS. History–New

 

THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A LATER TIME AND DATE IS SPECIFIED IN THE RULE.

EFFECTIVE DATE: October 24, 2017