6-6-119 Disciplinary actions against licenses and licensees

Sec. 6-6-119. Disciplinary actions against licenses and licensees.

(1) If the local licensing authority, on its own initiative or based on a complaint, has reasonable cause to believe that a licensee has violated the retail code, any rule or regulation promulgated pursuant to it, or any of its orders, the local licensing authority shall issue and serve upon the licensee an order to show cause (administrative citation) as to why its license should not be suspended or revoked.

(2) The order to show cause shall identify the statute, rule, regulation, or order allegedly violated, and the facts alleged to constitute the violation. The order shall also provide an advisement that the license could be suspended or revoked should the charges contained in the notice be sustained upon final hearing.

(b) Hearings shall be conducted in accordance with Section 6-6-111, License hearings, of this Code.

(1) Upon a finding of a violation by licensee of any of the provisions of this Article, the Authority may impose any one (1) or more of the following sanctions against a license or the licensee, in whatever combination the Authority finds appropriate, except that no sanction may be used in addition to revocation:

a. A licensee who has new conditions imposed on its license as a sanction shall bring the licensed premises into compliance with the new conditions within such period as the Authority may specify in its order. Failure to do so may be grounds for further sanctions.

b. A fine in an amount to be determined by the Authority, but not to exceed one thousand dollars ($1,000.00) or imprisonment for not more than ninety (90) days, or both. A licensee who has been sanctioned with a fine shall pay the fine and costs imposed within the time specified in the Authority’s order. In the event that the fine is not paid within the time specified, the Authority may impose any suspended license suspension or impose alternative or additional sanctions for failure to pay the fine or costs in a timely manner.

c. A suspension for up to one hundred eighty (180) days.

1. The Authority may summarily suspend any license without notice or hearing if the Authority finds that there is probable cause to believe that:

A. The licensee or its principals, registered manager, or employees have committed a willful or deliberate violation of this Article or state law or state regulations; and

B. The continued operation of the retail marijuana license poses an immediate and substantial threat to public health, safety, and welfare, such that waiting the time required to hold a regular disciplinary hearing would probably result in substantial harm to public health, safety and welfare.

2. If the Authority imposes a summary suspension it shall notify the licensee in writing as soon as is practical that it has been summarily suspended, that it must close its licensed premises, and the date, time, and place of the hearing to follow, within three (3) business days.

3. The Authority shall set a full hearing on the sanctions to be imposed for the violation that led to the summary suspension to be held within thirty (30) days from the date the licensee was first informed of the summary suspension and required to close the licensed premises, unless the Authority finds at the hearing or upon the Town’s motion, that there is no longer probable cause to believe that a violation occurred.

4. A licensee whose license has been suspended shall:

A. Close the licensed premises to all persons except the registered manager and employees during the term of the suspension;

B. Post a notice on every entrance to the premises regarding the sanction, as described in Section 6-5-406(c)(2) of this Code.

d. The reasonable costs of investigating, prosecuting, and hearing the violation, including the direct and indirect costs of the Town Attorney, police officers, witnesses, subpoenas, Hearing Officer, and other Town employees utilized in any proceeding for sanctions.

e. Revocation. A licensee whose license has been revoked shall:

1. Close the licensed premises and dispose of all retail marijuana on the licensed premises through legal means within such time and by such means as the Authority may order.

2. Not to be eligible to apply for a new license for a period of two (2) years.

f. The Authority may impose the following sanctions for contempt:

1. Removal of the person committing the contempt from the proceedings, the hearing room and its environs;

2. Public censure, which shall be made a matter of the licensee’s record and may be used as an aggravating factor in determining any fine, suspension, or revocation;

3. A prohibition against the individual or licensee introducing into the record testimony, documents, exhibits, or other evidence;

4. An order striking, disregarding and refusing to consider pleadings, applications, documents, objections, testimony, exhibits, or other evidence or arguments already introduced by such person;

5. A fine, enforced by suspension of the license until the fine is paid;

6. Default of any motion, complaint, or other action then pending against the licensee; or

7. Denial of any application by the licensee then pending before the Authority.

(2) In determining the appropriate sanction, and whether any sanction or portion of a sanction should be suspended, the Authority shall consider the following factors:

a. The severity of the violation;

b. Whether the violation was committed deliberately, willfully, intentionally, knowingly, recklessly, wantonly, negligently, or accidentally;

c. Whether the licensee profited or gained some competitive advantage from the violation or attempt to do so;

d. Potential and actual harm to residents, businesses, and the reputation of the retail marijuana industry;

e. Harm to public health, safety, and welfare;

f. Warnings, whether written or verbal, given to the licensee, principals, registered manager, or employees by the Authority or any state or Town employee before the violation occurred;

g. The deterrent effect of the sanction on the licensee and other licensees;

h. Whether the violation was committed or permitted by a principal, registered manager, or employee;

i. Previous violations by the licensee, principals, registered manager or employees of the same or different nature and at the same or different licensed premises, including contempt;

j. Steps taken by licensee before the violation occurred to prevent violations from occurring;

k. Any plans that the licensee may present showing how it intends to remedy the problem and prevent the same and similar violations in the future; and

l. Any other aggravating or mitigating factors, except those the Authority may not legally consider.

(3) In determining the appropriate sanction the Authority shall not consider the following factors:

a. Gender, race, ethnicity, ancestry, religion, or sexual orientation;

b. The licensee’s business income at the licensed premises, except as provided in § 12-43.4-601(3), C.R.S., for fines in lieu of suspension;

c. The probable effect of the sanction on the licensee’s finances;

d. Any criminal sanction imposed on any person as a result of the same or related conduct;

e. Any administrative penalty imposed by the state as a result of the same or related conduct;

f. Any civil judgment imposed as a result of the same or related conduct;

(1) The Colorado Rules of Evidence and the common law rules of evidence shall not apply. The Authority may accept into evidence any testimony or exhibit and give such evidence the weight that the Authority believes it deserves.

(2) The Authority may accept hearsay testimony and may base its decision solely on such hearsay if such hearsay is reasonably reliable, trustworthy, and has probative value accepted by reasonable and prudent persons in the conduct of their affairs.

(3) The Authority shall have the ability to exclude evidence and testimony as irrelevant, cumulative, or on the grounds the witness lacks standing.

(4) The Authority may take administrative notice of any matter contained in its file.

(e) Standing. At any hearing for issuance of a new license, for denial of a new license, for renewal or for any major change in the premises, only the following parties shall have standing to be heard:

(1) The applicant or licensee;

(2) Any person who owns property and/or resides within a one thousand (1,000) foot radius of the adjacent grounds of the proposed or licensed premises;

(3) Any person who owns or is employed by any business within a one thousand (1,000) foot radius of the adjacent grounds of the proposed licensed premises; and

(4) The Town of Telluride.

(1) The applicant has a contract with a retail marijuana establishment, stating the type and quantity of marijuana products that the retail marijuana establishment will buy from the licensee;

(2) The applicant can demonstrate compliance with all applicable state and local laws and regulations regarding the cultivation and/or otherwise lawful procurement of the marijuana necessary for its operation;

(3) The applicant can demonstrate compliance with all applicable provisions of Colorado Department of Revenue, Marijuana Enforcement Division, Retail Marijuana Code Rules 601, 602, 603 and 604 (1 CCR 212-2) as well as § 12-43.4-404, C.R.S.

(1) Any person who violates any provision of this Article or fails, neglects or refuses to perform any act required under this Article shall, upon conviction, be punished by a fine of not more than one thousand dollars ($1,000.00) or imprisonment of not more than ninety (90) days, or both such fine and imprisonment.

(2) Each such person shall be guilty of a separate violation for each and every day during any portion of which any violation of any provision of this Code or the ordinances of the Town is committed, continued or permitted by any such person, and such person shall be punished accordingly. (Ord. 1394, 2013; Ord. 1407, 2014; Ord. 1463 §5, 2018. Formerly 6-6-107(k) through 6-6-107(o))