Transcript Medical Marijuana: Coming to a Municipality Near You Cheryl Sbarra, J.D. Massachusetts Association of Health Boards November 2013 Disclaimer • This information is provided for legal.

Medical Marijuana:
Coming to a Municipality Near You
Cheryl Sbarra, J.D.
Massachusetts Association of Health Boards
November 2013
Disclaimer
• This information is provided for legal educational
purposes and is not to be considered legal advice.
• Legal advice can only be provided by your town counsel
or city solicitor.
20 States & DC Permit Medical Use of
Marijuana (August 2013)
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Alaska (1998)
Arizona (2010)
California (1996)
Colorado (2000)
Connecticut (2012)
DC (2010)
Delaware (2011)
Hawaii (2011)
Maine (1999)
Massachusetts (2012)
Michigan (2008)
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Montana (2004)
Nevada (2000)
New Hampshire (2013)
New Jersey (2010)
New Mexico (2007)
Oregon (1998)
Rhode Island (2006)
Vermont (2004)
Washington (1998)
Illinois (2013)
WA & CO completely
legal
Overwhelming Support when Passed as
Ballot Initiative – Massachusetts example
• 63% to 37% vote to approve as ballot initiative.
• Only 2 municipalities ( out of 351) voted no (Mendon,
Lawrence).
• Effective January 2013
• MDs can issue “Written Certifications” to “Qualifying
Patients” who will also receive a “Limited Cultivation
Registration” until dispensaries (RMDs) open.
• Regulations promulgated in May 2013, effective
January 1, 2014.
• Gap has presented challenges.
Summary of Law
• Allows “qualifying patients” with certain defined medical
conditions or debilitating symptoms to obtain and use
marijuana for strictly medical purposes.
• Requires DPH to promulgate regulations relative to
implementation of the law by May of 2013.
• Eliminates state criminal and civil penalties for the
medical use of marijuana by qualifying patients.
Criteria
• Qualifying Patient
• Diagnosed with a debilitating condition:
• Cancer, glaucoma, AIDS or HIV, Hepatitis C, ALS, Crohn’s
Disease, Parkinson’s disease, Multiple Sclerosis, and
other conditions as determined in writing by a qualifying
patient’s physician.
• When such diseases are debilitating.
• If a minor, diagnosed by 2 physicians, one of whom is a
board certified pediatrician, with life threatening illness or
certain debilitating illnesses.
• Debilitating: causing weakness, cachexia, wasting
syndrome, intractable pain, or nausea or impairing strength
or ability, and progressing to such an extent that one or
more major life activities are substantially limited.
• Vs. muscle spasms . . . other chronic or persistent medical
symptoms
Criteria (cont.)
• Qualifying Patient
• Must obtain written certification from a physician with whom the
patient has a bona fide physician-patient relationship.
• Conducted clinical visit, completed and documented full
assessment of patient’s medical history and current medical
condition, explained potential risks and benefits of marijuana use,
has a role in ongoing care and treatment of patient.
• Patient may possess up to a “60-day supply.”
• Ten ounces (presumption).
• Time period cannot exceed 1 year.
• Vs. 24 ounces (Oregon).
Criteria (cont.)
• Patient may designate a “Personal Caregiver”
• Must be at least 21.
• Must be registered with DPH.
• Cannot consume marijuana.
• Can only have 1 patient.
• Qualifying patient with a “verified financial hardship,” a
physical inability to access reasonable transportation, or
the lack of a RMD within a “reasonable” distance of
patient’s residence may obtain a “hardship cultivation
registration” from DPH. (Unique to MA)
• Permits growing of enough plants in an enclosed,
locked facility to maintain a 60-day supply.
DPH’s Intention Relative to Home-Cultivation
• Minimize the need for home cultivation as follows:
• Provisions for caregivers.
• Requirement of “compassion programs” at RMDs.
• Low or no-cost means-tested programs at RMDs.
• Requiring home-delivery.
• Hardship Cultivation Registration:
• May cultivate at caregiver’s or patient’s residence
ONLY.
• May cultivate limited number of plants to maintain 60day supply.
• Cultivation and storage shall be in an enclosed, locked
area accessible only to patient or caregiver.
• Marijuana shall not be visible from street or other public
areas.
RMD Criteria
• May cultivate, process and provide medical
marijuana and product infused with marijuana
(MIPs).
• Must be incorporated as a non-profit.
• Must be registered with DPH.
• Must have no prior felony drug convictions.
• Must comply with strict application, operational
and security requirements.
Application Requirements
• Phase 1 – Request to Submit Application
• Proof that it has at least $500,000 in assets.
• Proof that no officer or employee has been convicted of
a felony drug offense.
• Non-refundable $1,500 application fee.
• DPH shall notify applicant whether it can move on to
Phase 2. (Notified September 23, 2013)
• Applicant must notify municipality of proposed city or
town in which RMD would be sited of intent to submit
Phase 2 application.
Application Requirements – deadline passes
• Phase 2 – 158 applications in more than 80
municipalities.
• Non-refundable application fee of $30,000.
• Annual registration fee of $50,000.
• Location of RDM.
• If cultivation or MIPs will be prepared at a different
location, the physical address of site.
• Only 1 additional site is permitted.
• Evidence of compliance with all local laws.
• Proposed timeline for achieving operation.
Phase 2 Application Requirements (cont.)
• Copy of liability insurance.
• Detailed floor plan.
• Business plan.
• Detailed operating procedures.
• Analysis of projected patient
population and projected need
in service area.
• Detailed description of policies
for patients with verified financial
hardship (plan to sell products at
below market price or free).
Action of Phase 2 Submissions
• DPH can conduct site visit.
• DPH shall score applications based on applicant’s ability
to meet overall health needs of patients and safety of
public.
• DPH may consider geographical distribution, local
support, presence of home-delivery system, likelihood of
successful siting of RMD.
• Maximum of 35 in first year, 1 in each county.
• DPH shall review architectural plans. Submission of
plans shall be accompanied by a fee.
Operational Requirements
• Must have detailed written operating procedures:
• Security measures.
• Storage of marijuana.
• Description of strains of marijuana cultivated and sold.
• Plans for testing for contaminants.
• Emergency procedures.
• Plan on maintaining confidential records.
• Patient education.
• Methods for identifying diversion, theft, loss.
• Cultivation must use “best practices” to limit
contamination.
Handling, Producing Marijuana & MIPs
• Can only be produced by RMD.
• Must be tested by independent lab for cannabinoid profile
and contaminants.
• Must maintain record and results of testing for not less
than 1 year.
• Transportation of product must comply with requirements
in regulation.
• No signs on vehicles, 2 agents in vehicle, no stops, etc.
Handling, Producing Marijuana & MIPs (cont.)
• Product must be securely stored.
• Must be handled on “food-grade” stainless steel table.
• Edible MIPs must be prepared, handled and stored in
accordance with food code.
• MIPs are NOT FOOD.
• Edible MIPs must be packaged in opaque packages and
labeled with identifying information.
• Cannot look like candy.
Security Requirements
• Must have adequate lighting.
• No neon signs or other flashy signs.
• Product kept in limited access areas.
• Must have adequate security system.
• Commercial grade equipment, failure notification
system, duress alarm, video camera, 24-hour
recordings, etc.
• Security for transporting products.
• Thorough inventory pre and post delivery.
• Secure form of communication with RDM.
Interface with Municipal Laws
• RMD must comply with all local laws.
• DPH does not mandate any involvement by municipalities
of local boards of health in regulation of RMDs, qualifying
patients, hardship cultivation, dispensary agents, personal
caregivers.
• However, the state law and regulation are not preemptive.
• Cities and towns can regulate, including requiring local
permits and fees.
Boston’s Proposed Regulation
• BPHC may issue “guidelines” in the future.
• Must get an “Operating Permit” from BPHC.
• $500
• Ties permit to compliance with DPH regulations
• Must get “Dispensary Agent Permit” for each employee
• $100
• Must comply with Food Service Health Permit, Weights
and Measures, Regulations for the Control of Noise,
Public Nuisance, Workplace Smoking and E-Cigarette
regulations and all zoning and permitting requirements.
• Incorporate childcare buffer zone.
Boston (cont.)
• Security plan must be reviewed by BPHC.
• RMD must hold annual community meeting for abutters
and community residents.
• RMD must submit “compassion plan” to BHPC.
• BPHC may set further limitations on signage.
• RMD can only sell marijuana
• No tobacco
• Enforcement
• Suspension of permits
Interface with Other Laws
• The law and regulation shall not be construed to limit
any law as it pertains to landlords, employers, law
enforcement authorities or other regulatory agencies.
Interface with Other Laws
• Nothing in law or regulation:
• Permits operating under the influence.
• Requires health insurer to cover cost of medical marijuana.
• Requires health care professional to authorize use of medical
marijuana.
• Requires accommodation of any on-site use of medial
marijuana.
• Supersedes MA law prohibiting possession or sale of
marijuana.
• Requires violation of federal law or purports to give immunity
under federal law.
• Provides an obstacle to federal enforcement of federal law.
Notable Factors in MA Law/Regulation
• High fees to fund new program at DPH.
• DPH interoperable database being created.
• Utilizes statewide prescription monitoring system.
• No “reasonable accommodation” in multi-unit
housing.
• Eliminates claims of state and federal discrimination.
• Marijuana is a federal controlled substance and illegal.
• Landlords can prohibit it.
Reasonable Accommodation
• Must make reasonable accommodations in rules, policies
and practices when accommodation is needed to provide
a disabled person with the opportunity to enjoy his/her
dwelling.
• 3 applicable laws:
• Fair Housing Act
• Section 504 of the Rehabilitation Act (Section 504)
• Title II of the American with Disabilities Act (ADA)
• Marijuana is still a Schedule I substance under the
Controlled Substance Act.
• Housing Act prohibits admission to any household with a member
illegally using a controlled substance pursuant to federal law.
Public Housing Authorities
• Cannot accept an applicant who violates
federal law by possessing marijuana.
• Has discretion to evict current tenant who is
illegally using a controlled substance.
• May not establish lease conditions that
affirmatively permit occupancy by medical
marijuana users.
When is Failure to Accommodate
Discrimination?
• Person must meet definition of “disabled.”
• Accommodation must be necessary to use and enjoy
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dwelling; or
Is necessary to avoid discrimination.
Person must request accommodation.
Defendant must refuse to make required accommodation.
MM user is not disabled.
• ADA and Section 504 specifically exempt current illegal drug users
from definition of “disabled” person.
• Prohibit all forms of marijuana use.
• Acting on the basis of “illegal drug use” v. failure to install grab
bars.
Fair Housing Act
• Different rationale, but same result.
• Doesn’t specifically exclude illegal drug use, but
• Accommodation must be reasonable.
• Not reasonable if accommodation would
• Require fundamental alteration in the nature of housing provider’s
operations; or
• Impose undue financial and administrative burden on provider.
• Sanctioning violation of federal law would fundamentally
alter nature of public housing.
• To provide safe living environment free from illegal drug use.
• To provide safe, sanitary dwellings for families of low income.
• Would encourage violation of lease obligation to refrain from illegal
Notable Factors in MA Law/Regulation (cont.)
• Minimizes home cultivation.
• RDM may not be within 500 feet of school, day
care center or any facility where children
commonly congregate.
• Access by local public health, inspectional
services and law enforcement permitted.
• MAHB testified at hearing for inclusion of this.
Municipal Strategies are Allowed
• Zoning
• Can designate areas for siting.
• Can place a moratorium on siting.
• Cannot ban RMDs.
• Board of Health regulations permissible.
• Similar to tobacco control regulations.
• Require permit.
• Enforce state sanitary code.
• Noisome trade?
• Other municipal fees can be assessed.
• Building, Planning, Zoning, etc.
Questions? Comments?