Alabama Administrative Code › Title 538 - ALABAMA MEDICAL CANNABIS COMMISSION › Chapter 538-X-3 - Applications and Licensing Requirements - Generally › Section 538-X-3-.18 - Denial Of Application; Request For Hearing From Application Denial

Current through Register Vol. 42, No. 9, June 28, 2024
(a) In accordance
			 with §
								20-2A-56(e),
Code of Ala. 1975
, (as amended), any Applicant who has
			 been denied a license by the Commission may seek an investigative hearing
			 before the Commission to seek reconsideration of said denial. Request for
			 hearing must be filed electronically on or before 4 p.m., CDT, 14 days from the
			 date of the denial. The party seeking the investigative hearing shall serve a
			 copy of such request to all other applicants for such license offering and
			 shall certify the same to the Commission. Such service may be accomplished by
			 email or USPS First-Class Mail to the authorized contact person as identified
			 on such applicants' application.
(b) The investigative hearing shall be
			 conducted as a contested case under the Alabama Administrative Procedure Act.
			 If the Commission director is licensed to practice law in this state, he or she
			 shall act and serve as hearing officer when designated by the commission. If
			 the director does not serve as the hearing officer, the Commission may
			 designate the assistant director, if licensed to practice law in this state, or
			 another licensed attorney to sit, act, and serve as the hearing officer for
			 purposes of the investigative hearing.
(c) Upon timely application filed within ten
			 (10) days of the request for investigative hearing, any other applicant with a
			 submitted application for the same license offering shall be permitted to
			 intervene upon filing a notice of intervention, which shall be served on the
			 applicant and any other parties of record to the investigative hearing. Other
			 parties asserting a right to intervene under §
								41-22-14,
Code of Ala.
			 1975
, may also file a motion to intervene within such ten (10) day
			 period for consideration by the hearing officer.
(d) In those license categories where the
			 number of licenses that may be issued by the Commission are limited by statute
			 or rule, the hearing officer may consolidate pending investigative hearing
			 requests for purposes of the hearing.
(e) The Commission shall secure a licensed
			 court reporter, who shall maintain an index of all exhibits identified or
			 offered at the hearing. All parties to the investigative hearing shall be
			 responsible for the cost of any transcripts produced by the court reporter for
			 such party. The hearing officer shall coordinate with the court reporter and
			 Secretary of the Commission to maintain for the Commission an indexed copy of
			 all other filings of record, rulings, and orders from the date of assignment of
			 the case to the hearing officer through the issuance of a final order. The
			 hearing officer shall be responsible for ensuring that all such indexed records
			 are provided to the Commission, with a copy of the indexes (but not underlying
			 documents) simultaneously provided to all parties. Where practicable, the
			 hearing officer and court reporter should provide such indexes and documents to
			 the Commission in PDF form.
(f) All
			 records related to the application and the prior orders issued by the
			 Commission shall be part of the record of the investigative appeal, subject to
			 the provisions of Paragraph (g) below. The Commission's decision in regard to
			 the investigative appeal shall be based on the whole record before the
			 Commission.
(g) The hearing officer
			 may issue a prehearing order requiring parties, a reasonable time before the
			 investigative hearing, to file lists of expected witnesses, together with a
			 general summary of each witness' testimony, copies of documents to be offered
			 as evidence at the hearing and if specifically requested, copies of any
			 documents referred to in the application not otherwise available to the public.
			 The hearing officer shall give due consideration to the protection of trade
			 secrets and other confidential or proprietary information as provided under
			 statute and the Commission's rules and may issue protective orders related
			 thereto.
(h) The hearing officer
			 may also require the direct or redirect examination of a witness through
			 pre-filed testimony in lieu of oral examination. Such pre-filed testimony shall
			 be in written question and answer form and shall be filed at least ten (10)
			 calendar days prior to the hearing, unless directed otherwise by the hearing
			 officer. At the hearing, such pre-filed testimony may, upon motion, be
			 incorporated into the record as if the questions had been asked of the witness
			 and the answers had been given orally, provided such testimony has been
			 properly identified and authenticated under oath by the witness for whom it is
			 presented and further provided that such witness is made available for
			 cross-examination. In such cases, witnesses may also summarize their testimony
			 orally. Pre-filed testimony may be stricken by the hearing officer on the same
			 grounds applicable to testimony presented through oral examination. The hearing
			 officer may take other measures to streamline the hearing process, including,
			 but not limited to, reasonable limitations on the number of witnesses, time of
			 presentation, and restrictions on the presentation of testimony that is purely
			 cumulative in nature.
(i) The
			 record of the investigative hearing will be made available to all Commissioners
			 participating in the decision. If deemed necessary or helpful by the
			 Commission, acting through the Chair, may instruct the hearing officer to issue
			 a proposed order consistent with §
								41-22-15, Code of Ala. 1975. Any
			 such proposed order shall be distributed to all parties who will have ten (10)
			 days to file exceptions or briefs relating to the proposed order. The
			 Commission will schedule the investigative appeal for deliberation and vote at
			 a meeting following the completion of the transcript and the deadline for all
			 filings.
(j) The decision of the
			 Commission on such hearing is considered a final action, triggering the right
			 of appeal as provided in §
								20-2A-57(f),
Code of Ala. 1975
, (as amended). Despite the
			 Commission's announcement of the award of licenses, due to the pendency of
			 hearings or appeals on some or all licenses in a particular offering, some or
			 all licenses may not issue, in the discretion of the Commission, but may be
			 stayed until the time for appeal has lapsed or all appeals from the
			 Commission's decision have resolved, whichever is later. Any deadlines or
			 obligations imposed on licensees based on licensure under these Rules or the
			 Act shall not begin to run until such time as licenses are issued.
(k) This rule, as amended, shall be effective
			 for all investigative hearing requests filed on or after its effective date.
			 The procedures set forth in this rule, as amended, are intended to provide
			 greater detail regarding the investigative hearing process and shall not be
			 construed as a limiting the existing hearing procedures available to the
			 Commission, or the rights of any party, under the Alabama Administrative
			 Procedure Act. If any provision of this Rule, as amended, or the application of
			 such provision or amendment to any person or circumstance is invalidated by a
			 Court, the remainder of this Rule, as amended, and the application of the
			 provisions of such to any person or circumstance shall not be affected
			 thereby.
Author:
William H. Webster; Mark D.
				  Wilkerson
Statutory Authority:
Code of Ala.
				  1975
, §§
										20-2A-22, as
				  amended.