The Cannabis Control Appeals Panel today announced changes to the proposed regulations published to the California Regulatory Notice Register on August 31, 2018. These proposed changes mark the next step in the formal rulemaking process toward adopting regulations and the beginning of a 15-day public comment period related to the proposed changes.
The changes to the proposed regulations and rulemaking documents have been posted to the Panel’s website: https://www.ccap.ca.gov/laws_regs/ccr_6000_6018_code.pdf.
The full text of the Panel’s 15-Day Notice of Modification to Text of Proposed Regulations has been posted below.
CANNABIS COTROL APPEALS PANEL
NOTIFICATION OF MODIFICATION TO THE TEXT OF
PROPOSED ADDITION OF
PROCEDURES TO APPEAL ADMINISTRATIVE ACTIONS AGAINST CANNABIS LICENSEES OR APPLICANTS
Pursuant to the requirements of Government Code Section 11346.8(c) and Section 44 of Title 1 of the California Code of Regulations, the Cannabis Control Appeals Panel is providing notice of changes that have been made to the text of the proposed addition of Rules 6000-6018, Procedures to Appeal Administrative Actions Against Cannabis Licensees or Applicants.
The proposal to add Rules 6000-6018 was originally noticed to the public on August 31, 2018. The proposed additions were the subject of a hearing on October 17, 2018. At the hearing, changes to the text of the additions to Rules 6000-6018 were proposed and considered. Specifically, the Cannabis Control Appeals Panel has made the following changes to the proposed regulations:
Rules 6000-6003 are unmodified.
Rule 6004. Submitting the Record
Under subsection (a), change the required filing of the administrative record by the appellant from the original plus five copies to the original hardcopy plus one electronic version of the record. Staff anticipates reviewing administrative records and disseminating them to Panel members electronically. Requiring the appellant to submit five hardcopies of the administrative record is unnecessary and a waste of resources. Additionally, alternative language was included to cover situations where the licensing agency utilizes an informal hearing procedure or an emergency hearing procedure rather than a formal hearing at the Office of Administrative Hearings.
Under subsection (b), delete the word “audiotaped” and replace it with “recorded in a means other than transcription”. The purpose of this subsection is to ensure the Panel receives a transcription of the administrative hearing. By broadening the potential alternative ways an administrative hearing may be recorded (other than audiotaped), the modification anticipates alternative recordation techniques that may be utilized by administrative courts in the future. Additionally, the requirement that the transcription of any alternative recording be “a certified copy” will ensure the transcription accurately reflects the events of the hearing.
Under subsection (c), allow for service of the administrative record to be effectuated electronically, as provided in Rule 6005. Electronic service is the most efficient and cost-effective means of service currently available and provides proof of time of delivery and receipt.
Rule 6005 is unmodified.
Rule 6006. Filing of Briefs by Parties
Under subsection (d), change the deadline for parties to file a motion to waive the page length restrictions on their briefs. The modification, from 15 days to 10 days before the brief is due, will permit adequate time for the party filing the opposition brief to receive the opening brief, review it and then make an informed decision on whether it is necessary to seek a waiver. Because the opposition brief is due 15 days after service of the opening brief, without the modification there would be no time for the party filing the opposition brief to request a page length waiver.
Under subsection (d), correct a typographical error. Subsection “(e)” should have been referenced rather than subsection “(c)” to cite the provision that contains the filing deadlines for all briefs.
Rule 6007 is unmodified.
Rule 6008. Oral Argument
Under subsection (a), add two additional subsections relating to oral argument. Proposed subsection (a)(4) will make it explicit and clear that parties may reference only evidence that is contained in the administrative record. This is in accordance with Business and Professions Code section 26043(b) which states in pertinent part, “the panel shall not receive evidence in addition to that considered by the licensing authority.” Proposed subsection (a)(5) will make it explicit and clear that Panel members may ask questions of the parties without time constraints. This will ensure Panel members have all the necessary information about the appeal prior to deliberation.
Rules 6009 and 6010 are unmodified.
Rule 6011. Dismissal of Appeal
Under subsection (a), remove the requirement that the Panel issue an order that affirms the underlying licensing agency’s decision when an appeal is dismissed. There are several reasons why an appeal may be dismissed, some of which are purely procedural in nature. By affirming an underlying decision, the Panel takes a substantive position on the merits of the appeal. Affirming a decision that has been dismissed on procedural grounds is inappropriate and should not be mandated as originally proposed.
Under subsection (a)(3), correct a typographical error by deleting the repeated term “has been”.
Rules 6012 and 6013 are unmodified.
Rule 6014. Stay
Under subsection (b), add an additional subsection relating to the required showing by an appellant to receive a stay of the underlying agency determination pending the appeal with CCAP. Specifically, proposed subsection (b)(3) will require that “the stay is not detrimental to the health and welfare of the public.” This additional requirement will provide the Panel with authority to deny a stay request when an appellant can meet the first two requirements but further delay of the implementation of the licensing agency’s determination may harm the public. This requirement is similar to the one found in Code of Civil Procedure section 1094.5 that concerns administrative writs. When the Superior Court reviews any final administrative order, no such stay shall be imposed or continued if the court is satisfied that it is against the public interest.
Rule 6015. Settlements
Under subsection (a), change the Panel’s directive from “remand” to “dismiss” when a settlement has been reached by the parties. Once an administrative hearing has concluded and the licensing agency has issued its final determination, the licensing agency has up to 30 days to reconsider its determination. Once an appeal has been filed with CCAP, CCAP has jurisdiction over the appeal. If the parties then settle their dispute, the settlement agreement between them is the binding document that contains promises and performance obligations (one of which would be that the appellant dismiss the pending appeal with CCAP). It is appropriate for the Panel to effectuate the appellants request to dismiss the appeal rather than remand the matter back to the licensing agency.
Rule 2016 is unmodified.
Rule 6017. Form of Order
Under subsection (a), rephrase the possible delivery methods to cite Rule 6005 when delivery is effectuated electronically. This is not a substantive change.
Rule 2018 is unmodified.
A copy of the full text of the regulation with the proposed changes indicated is attached for your review. Additions to the originally proposed language appear in italic double underlined text and deletions are shown in double strikeout.
Any interested person may submit a written statement relating to the modified language during the public comment period from October 19, 2018 to November 5, 2018. The written comment period will close at 5:00 p.m. on November 5, 2018. Submit written comments to:
Christopher Phillips, Chief Counsel
Cannabis Control Appeals Panel
801 Capitol Mall, 6th Floor
Sacramento, CA 95814
All written comments received by the Cannabis Control Appeals Panel by 5:00 p.m. November 5, 2018, which pertain to the indicated changes, will be reviewed and responded to by the Panel’s staff as part of the completion of the rulemaking file. Please limit your comments to the modifications to the text, which appear either in italic double underline or in double strikeout.
Questions concerning the proposed amendment may be addressed to Christopher Phillips at (916) 322-6874, or at Christopher.Phillips@ccap.ca.gov, or at the address above. If Christopher Phillips is not available, questions concerning the proposed amendment may be directed to Phil Laird at (916) 653-4090.
~Cannabis Control Appeals Panel