Disclaimer

1. Medical Marijuana: Coming to a Municipality Near You Cheryl Sbarra, J.D. Massachusetts Association of Health Boards November 2013

2. 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.

3. 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

4. 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.

5. 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.

6. 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

7. 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).

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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).

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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

29. 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.

30. 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.

31. Questions? Comments?