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)

• Alaska (1998)• Arizona (2010)• California (1996)• Colorado (2000)• Connecticut (2012)• DC (2010)• Delaware (2011)• Hawaii (2011)• Maine (1999)• Massachusetts (2012)• Michigan (2008)

• 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 60-

day 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

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?