Lawyers Journal

Medical Marijuana Law

By now most people, including lawyers, know that Massachusetts voters at the November 2012 state election overwhelmingly approved a ballot question legalizing the dispensing and use of "medical marijuana" in certain instances. The approved ballot question is now titled Chapter 369 of the Acts of 2012, "An Act for the Humanitarian Medical Use of Marijuana" (the act). Since the election, state and local authorities have grappled with how to implement the act. This article will briefly review the act, address initial municipal responses, and highlight key provisions in the Department of Public Health (DPH) Regulations, 105 CMR 725.000, promulgated on May 8, 2013 and effective on May 24, 2013.

THE ACT

"Medical use of marijuana" is defined in the act as "the acquisition, cultivation, possession, processing (including development of related products such as food, tinctures, aerosols, oils or ointments), transfer, transportation, sale, distribution, dispensing or administration of marijuana, for the benefit of qualifying patients in the treatment of debilitating medical conditions, or the symptoms thereof." Section 8 allows a "qualifying patient" to possess up to a 60-day supply of medical marijuana and §9(C) authorizes the DPH to register up to 35 Medical Marijuana Treatment Centers (termed "Registered Marijuana Dispensary" in the Regulations) by Jan. 1, 2014. Under §11, qualifying patients who have limited access to such centers may also register with DPH to cultivate their own limited supply of medical marijuana. The law went into effect on Jan. 1, 2013. However, since no Medical Marijuana Treatment Center may operate unless licensed by the state and such licenses could not be issued until DPH promulgated regulations, no such centers are yet operating.

The act, §2(K), defines a "qualifying patient" as: "a person who has been diagnosed by a licensed physician as having a debilitating medical condition." Section 2(C) defines such a condition as: "cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, multiple sclerosis, and other conditions as determined in writing by a qualifying patient's physician." Under §2(N), the qualifying patient must obtain a "written certification" from a licensed physician, which "certification shall be made only in the course of a bona fide physician-patient relationship." Section 2L requires DPH to issue "registration cards" to a "qualifying patient, personal caregiver [defined in §2(J)], or dispensary agent [defined in §2(E)]."

The Act, §2(H), requires a Medical Marijuana Treatment Center to be a Massachusetts nonprofit entity registered in accordance with the act that "acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patient or their caregivers."

Section 9(C) provides that the DPH may register up to 35 treatment centers by January 1, 2014 and that at least one treatment center must be located in each county, with no more than five located in a single county. If the DPH determines 35 centers are insufficient, it may later decide to increase the allowable number. §9(C). The DPH has 90 days after a registration application is filed to act on the application. §9(B).

In addition to treatment centers, the Act, §11, provides that DPH "shall issue a cultivation registration to a qualifying patient whose access to a medical treatment center is limited by verified financial hardship, a physical incapacity to access reasonable transportation, or the lack of a treatment center within a reasonable distance of the patient's residence ... [s]uch registration shall allow the patient or the patient's personal caregiver to cultivate a limited number of plants, sufficient to maintain a 60-day supply of marijuana, and shall require cultivation and storage only in an enclosed, locked facility." Such an enclosed, locked facility is defined in §2(F) as a "closet, room, greenhouse, or other area equipped with locks or other security devices, accessible only to dispensary agents, patients, or personal caregivers."

MUNICIPAL RESPONSE

Municipalities have most commonly responded to the act by considering zoning issues related to the siting of medical marijuana treatment centers. In so doing, the following options have emerged: (1) do nothing; (2) amend zoning bylaws and ordinances to specifically regulate such siting; (3) adopt a temporary moratorium; (4) adopt an out-right ban; or (5) pursue a combination of options. The temporary moratorium and ban approach have generated the most interest, with a number of communities across the state choosing those options.

Under Massachusetts law, town bylaws (but not city ordinances) are subject to review and approval by the attorney general. While the attorney general has approved a Burlington bylaw imposing a moratorium, a Wakefield bylaw imposing a ban was disapproved. While approval by the attorney general does not insulate a town bylaw from possible legal challenge, such approval indicates the attorney general has determined that the bylaw does not conflict with state law. The legal analysis underlying the attorney general's conclusions, would, of course, be available to a city in the event of a challenge to an ordinance. The attorney general's rulings on both the Burlington and Wakefield bylaws are available on the attorney general's website.

The attorney general approved Burlington's 18-month temporary moratorium, ending June 30, 2014, on the use of land or structures for medical marijuana treatment centers. In approving the bylaw, the attorney general found the moratorium to be a reasonable exercise of the town's zoning power because it allowed the town time to manage a new use and to study and reflect to make a decision on a complex subject matter. The attorney general further found that this time period was reasonable, because: (1) at the time the bylaw was adopted, DPH had not yet issued regulations expected to provide guidance regarding regulation of medical marijuana related uses; and (2) the temporary moratorium was similar to other land use moratoria previously upheld by the courts. The attorney general stated: "We approve this temporary moratorium because it is consistent with the town's authority to 'impose reasonable time limitations on development, at least where those restrictions are temporary and adopted to provide controlled development while the municipality engages in comprehensive planning studies.' Sturges v. Chilmark, 384 Mass. 246, 252-53 (1980)."

In contrast, the attorney general disapproved the Wakefield bylaw banning medical marijuana treatment centers outright. In disapproving this bylaw, the attorney general determined such a ban would frustrate the act's purpose and therefore conflict with state law. The attorney general noted the act requires the DPH to register up to 35 medical marijuana treatment centers, with one center in each county and no more than five centers per county. In considering the totality of the act's provisions, the attorney general looked at the portions of the act that (1) authorized the DPH to register more centers if it determines that 35 are insufficient to meet demand; and (2) provided for hardship cultivation registration for qualifying patients who are unable to access medical marijuana treatment centers due to financial, physical or transportation hardships. The attorney general ruled that a municipal ban on medical marijuana treatment centers would undermine these purposes. The town of Wakefield has filed an appeal from the attorney general's ruling.

THE REGULATIONS

The DPH Regulations, 105 CMR 725.000, implement the act comprehensively and in great detail. A sample of the provisions follows.

A "Medical Marijuana Treatment Center" is defined in 105 CMR 725.004, as "a not-for-profit entity registered under 105 CMR 725.100, to be known as a registered marijuana dispensary (RMD)." A "Sixty-Day Supply" is defined in 105 CMR 725.0004 as 10 ounces, unless a certifying physician determines and certifies that a qualifying patient requires marijuana in an amount exceeding 10 ounces, as provided for in 105 CMR 725.010(I). "Registration of Certifying Physicians" is regulated under 105 CMR 725.005 and the factors a certifying physician must apply before certifying that a patient qualifies for marijuana use are addressed in 105 CMR 725.010. A certifying physician, as well as the physician's "co-worker, employee, or immediate family member," may not have any involvement with a RMD. 105 CMR 725.010(K).

To be eligible as a "Qualifying Patient," a person under 18 years of age must be "diagnosed by two Massachusetts-licensed certifying physicians, at least one of whom is a board-certified pediatrician or board-certified pediatric subspecialist, as having a debilitating medical condition that is also a life-limiting illness." 105 CMR 725.004. A person 18 years of age or older is eligible to be a "Qualifying Patient" upon diagnosis of one certifying physician as having a debilitating medical condition. Registration of "Qualifying Patients" is regulated under 105 CMR 725.015. Registration and activities of "Personal Caregivers" and "Dispensary Agents" are regulated in 105 CMR 725.020, 725.025, and 725.030, respectively.

"Hardship Cultivation Registration" is allowed under 105 CMR 725.035 and requires, among other criteria that such cultivation occur only at a specified location, that the amount be for a 60-day supply, and that the cultivation be in "an enclosed, locked area accessible only" to the registered qualifying patient or registered personal caregiver. A personal caregiver may cultivate marijuana for a "patient who has obtained a hardship cultivation registration." 105 CMR 725.025(A)(3).

A "Registered Marijuana Dispensary" (RMD) is subject to 105 CMR 725.100, which requires, among other provisions, that no entity may control more than three RMDs. After conducting a multiple-step application process, which includes the submission of very detailed application materials, DPH may issue a certificate of registration for a RMD. 105 CMR 725.100(C). Among other specific requirements, all cultivation of marijuana must occur in "designated, locked, limited access areas that are monitored by a surveillance camera system." 105 CMR 725 .105(B)(1)(c). Additional detailed standards for cultivation and testing of marijuana are set forth in 105 CMR 725.105(B) and (C). Testing of marijuana by an independent laboratory is required by 105 CMR 725.105(C). Under 105 CMR 725.105(E)(1): "Marijuana shall be packaged in plain, opaque, tamper-proof, and child-proof containers without depictions of product, cartoons, or images other than the RMD's logo" and "shall not bear a reasonable resemblance to any product available for consumption as a commercially available candy."

"Security Requirements for Registered Marijuana Dispensaries" are addressed in 105 CMR 110.00 and include the following, among other detailed requirements. Only specified categories of persons are allowed access to the RMD. 105 CMR 725.110(A)(1)(2). The MDP also must: "ensure that the outside perimeter of the RMD is sufficiently lit to facilitate surveillance" [725.110(A)(10)], and "ensure that trees, bushes, and other foliage outside of an RMD do not allow for a person or persons to conceal themselves from sight" [725.110(A)(11)]. Video cameras must be installed and the recordings made available to the DPH.

Confidentiality of information is addressed in 105 CMR 725.200. 105 CMR 725.200(A) provides that information held by the DPH is confidential and exempt from disclosure under the Public Records Law, G.L. c.66. The persons to whom and circumstances under which information may be disclosed are addressed in 105 CMR 725.200(B).

Under 105 CMR 725.600(A), "A RMD and other registered persons shall comply with all local rules, regulations, ordinances, and by-laws." See also, 105 CMR 725.110(A)(14) (an RMD must comply with local requirements, and, unless otherwise regulated by local law, may not be located closer than 500 feet from "a school, daycare center, or any facility in which children commonly congregate."). Also, under 105 CMR725.100(B)(3)(f), an applicant for registration as a RMD must submit, "[i]f available at the time of submission, a description of plans to ensure that the RMD is or will be compliant with local codes, ordinances, and bylaws" where the RMD will be located, "including any demonstration of support or non-opposition furnished by the local municipality."

Finally, the regulations, 105 CMR 725.650(A), provide: "nothing in 105 CMR 725.000 shall be construed to limit the applicability of other law." For example, the regulations do not require health insurance to cover expenses related to the medical use of marijuana and do not require any accommodation for the use of marijuana in any place of employment, school, or correctional facility. Nor do the regulations supersede other Massachusetts laws regarding marijuana, or require "the violation of federal law or purport[] to give immunity under federal law." 725.650(B).

CONCLUSION

While other states have addressed legal issues related to medical marijuana, Massachusetts is grappling with them for the first time. Over the next year, as the DPH works to administer the act and regulations and municipalities work to apply current ordinances and bylaws and develop and enact new ones in light of the state law, many complex issues will arise. As that process unfolds, state and local officials will be at the forefront of this evolving area of law.

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