CHAPTER 44:90:12
ENFORCEMENT
Section
44:90:12:01 Department inspection of establishments.
44:90:12:02 Recalls.
44:90:12:03 Corrective action plan.
44:90:12:04 Suspension or revocation of registration certificate for serious and knowing violations.
44:90:12:05 Suspension or revocation of registration certificate for multiple violations.
44:90:12:06 Voluntary surrender of registration certificate.
44:90:12:07 Revocation of registry identification card for unauthorized sale.
44:90:12:08 Revocation of registry identification card for serious or multiple violations.
44:90:12:01. Department inspection of establishments. The department may inspect an establishment during an unannounced visit or in response to a complaint. Agents of the department:
(1) Shall present identification before commencing an inspection of an establishment;
(2) Shall have complete and unrestricted access to establishments during business hours for the purposes of inspections, sample collection, testing, interviews, or other investigations;
(3) May collect samples of cannabis and cannabis products and perform analytical tests on those samples or submit them to a cannabis testing facility for testing;
(4) May inspect the contents of any vehicle used by an establishment to transport cannabis, cannabis extracts, or cannabis products and examine the transport manifest; and
(5) Shall have access to inventory records and certificates of analysis maintained by the establishment, including collecting paper or electronic copies for further review.
The department shall provide an establishment the results of any analytical tests performed on samples taken from the establishment and shall inform the establishment whether the cannabis or cannabis products from which the samples were taken are nonusable.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(6).
Law Implemented: SDCL 34-20G-69, 34-20G-72(6).
44:90:12:02. Recalls. If the department determines that cannabis or cannabis products that have been transferred to a dispensary pose a risk to public health or safety due to contamination, spoilage, mislabeling, or other reasons, the department may initiate a recall as follows:
(1) The department shall request that any establishment that cultivated, manufactured, or sold the affected cannabis or cannabis products initiate a voluntary recall;
(2) The department’s correspondence shall include the reasons for the recall request;
(3) The affected establishments shall immediately store the affected cannabis in storage containers labeled prominently with the words RECALLED – DO NOT TRANSFER;
(4) The affected establishments may voluntarily issue a recall of the cannabis or cannabis products;
(5) If the affected establishments agree to issue a recall, then the dispensary shall inform patients who purchased the recalled products that they should discontinue use and return the items to the dispensary; and
(6) If one or more affected establishments do not agree with the recall request, the department may order the recall of the affected items and shall identify the department’s decision as a final department action subject to judicial review pursuant to SDCL chapter 1-26.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(6).
Law Implemented: SDCL 34-20G-69, 34-20G-72(6).
44:90:12:03. Corrective action plan. Upon the discovery of suspected violations of this article or SDCL chapter 34-20G, the department may order the establishment to comply with a corrective action plan, which may include:
(1) Modifying operating procedures to comply with this article and SDCL chapter 34-20G;
(2) Halting transfer of cannabis or cannabis products that are mislabeled or otherwise pose a threat to public health; and
(3) Destroying or remediating cannabis or cannabis products that pose a threat to public health.
The department may order a licensee to destroy a batch of cannabis or cannabis products that fails testing and does not need to demonstrate that the presence of contaminants was due to the action or inaction of the licensee. Such notice must identify the department’s decision as a final department action subject to judicial review pursuant to SDCL chapter 1-26.
Nothing in this section prohibits licensees from initiating corrective action, including voluntarily recalling cannabis or cannabis products.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(6).
Law Implemented: SDCL 34-20G-69, 34-20G-72(6).
44:90:12:04. Suspension or revocation of registration certificate for serious and knowing violations. The department may, pursuant to SDCL chapter 1-26 and SDCL 34-20G-81, suspend for up to six months or revoke a registration certificate for any knowing violation of this article or SDCL chapter 34-20G that involves dishonesty, concealment, breach of patient privacy, diversion, or threat to public health or safety.
Upon the discovery of serious and knowing violations that pose an ongoing threat to public health, safety, or welfare, the department may initiate emergency suspension proceedings pursuant to SDCL 1-26-29.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(6).
Law Implemented: SDCL 34-20G-72(6), 34-20G-80, 34-20G-81.
44:90:12:05. Suspension or revocation of registration certificate for multiple violations. The department may, pursuant to SDCL chapter 1-26 and SDCL 34-20G-81, suspend for up to six months or revoke a registration certificate upon finding that the establishment has committed multiple knowing and negligent violations of this article or SDCL chapter 34-20G.
Upon the discovery of violations that pose an ongoing threat to public health, safety, or welfare, the department may initiate emergency suspension proceedings pursuant to SDCL 1-26-29.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(6).
Law Implemented: SDCL 34-20G-72(6), 34-20G-80, 34-20G-81.
44:90:12:06. Voluntary surrender of registration certificate. An establishment may offer to voluntarily surrender its registration certificate and cease operations. In such cases, the department has the discretion:
(1) To reject voluntary surrender;
(2) To accept the voluntary surrender without conditions; or
(3) To negotiate conditions of a voluntary surrender, including the amount of time before which the establishment or any principal officer or board member may apply for a registration certificate.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(6).
Law Implemented: SDCL 34-20G-72(6), 34-20G-80, 34-20G-81.
44:90:12:07. Revocation of registry identification card for unauthorized sale. Upon a finding that a cardholder sold cannabis to any person who is not authorized to possess cannabis for medical purposes, the department shall initiate emergency suspension proceedings pursuant to SDCL 1-26-29 and notify the cardholder in writing of the revocation of the registry identification card, along with notice of the right to appeal pursuant to SDCL chapter 1-26. The department shall notify the patient or caregiver of the revocation in writing with a supporting rationale for revocation pursuant to this section.
Source: 48 SDR 40, effective October 5, 2021; 49 SDR 9, effective August 8, 2022.
General Authority: SDCL 34-20G-72(6).
Law Implemented: SDCL 34-20G-36, 34-20G-72(6), 34-20G-83.
44:90:12:08. Revocation of registry identification card for serious or multiple violations. The department may, pursuant to SDCL chapter 1-26 and SDCL 34-20G-84 revoke a registry identification card upon finding that the cardholder has committed serious or multiple violations of SDCL chapter 34-20G, including:
(1) Transferring cannabis to any person who is not authorized to possess cannabis for medical purposes;
(2) Submitting false information to the department;
(3) Making false statements to a law enforcement officer;
(4) Allowing unauthorized use of a registry identification card;
(5) Accepting remuneration other than direct costs incurred for assisting with the registered qualifying patient's medical use of cannabis, pursuant to SDCL 34-20G-2(2); or
(6) Cultivating cannabis in violation of SDCL chapter 34-20G.
The department shall notify the patient or caregiver of the revocation in writing with a supporting rationale for revocation pursuant to this section.
Source: 48 SDR 40, effective October 5, 2021; 49 SDR 9, effective August 8, 2022.
General Authority: SDCL 34-20G-72(6).
Law Implemented: SDCL 34-20G-36, 34-20G-72(6), 34-20G-84.
