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.