Medical marijuana ppt by jody lehrer, mpa

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"The Act for the Humanitarian Medical Use of Marijuana [in] Massachusetts," presentation by Jody H. Lehrer at Planning for Medical Marijuana Roundtable Discussion, Weymouth, Mass., November 14, 2013.

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  • The new law basics are reviewedThere is an overview of the research process usedThe findings are presentedAG decisions are summarized
  • Ballot Question 3 –Law for the Humanitarian Medical Use of Marijuana -- ballot on November 6, 2012 received 63% of votes cast Passed in 349 of 351 communities --Mendon and Lawrence The measure was codified as Chapter 369 of the Acts of 2012 becoming effective Jan 1 2013DPH regulations went into effect May 24, 2013 at 105 CMR 725
  • One should review the DPH regulations for full requirementsEnables qualifying patient with debilitating medical condition certified by physician to possess up to a 60 days supply – or up to 10 oz. - of medical marijuanaThe law protects physicians, health care professionals, qualifying patients, caregivers, RMD agents from prosecution under state law.The law allows for hardship cultivation of medical marijuana in specific circumstances (verified financial hardship, no transportation, distance from RMDs)Law allows a qualifying patient to appoint “personalcaregiver” –to assist patient with medical use of marijuana. Other provisions govern registration of qualifying patients, personal caregivers, dispensary agents, hardship cultivation, and RMDs.From CA law – Compassionate Use Act – Physicians cannot prescribe marijuana but may however, lawfully issue a verbal or written recommendation under California law indicating that marijuana would be a beneficial treatment for a serious medical condition. Proposition 215, the Compassionate Use Act of 1996.CA does not regulate for purposes of medical marijuana law Cooperatives or Collaborative but provides guidance. They don’t need to register as marijuana distributors. A Cooperative must however have filed articles of incorporation with the state and conduct its business for the mutual benefit of its members. (Corp. Code, § 12201, 12300.) Can’t call self a collaborative unless a “cooperative” (or “co-op”) unless it is properly organized and registered as such a corporation under the Corporations or Food and Agricultural Code. (Cooperative corporations are “democratically controlled and are not organized to make a profit for themselves, as such, or for their members, as such, but primarily for their members as patrons.”
  • In generalThe data presented here is derived from research conducted in graduate school at BSU in pursuit of an MPAThe data is current as of the end of August 12, 2013The research processResearchinvolved determining what cities and towns in Massachusetts were doing with respect to the new law: who adopted moratoria (and for how long); Who regulates through zoning and what types of zoning districts, and is siting by right or by special permitOutreach to communities was via Mass Planners list-serve and follow up with communities via emails and website reviews –many bylaws collected via emailResearch also involved repeated reviews of AG Municipal Law Unit database for decisions relating to town government adoptions of moratoria or zoning regulationsResponsesOf 351 towns and cities, data collected from 151 or 43% of local governmentsOf 312 towns, obtained data on 42% of 131 townsOf 39 cities, obtained data from 51% or 20 citiesThe aggregate data is current only as of early September Original source data has been lost and I am attempting to have data recovered through a vendor.
  • This data is current as of August 12, 2103.As of that date 77% of 151 communities on which data was collected had moratoria and only 11% had zoned for RMDs.There has been much action since then including new communities that have either adopted moratoria or have zoned for RMDs or communities that had moratoria and have since zoned for RMDsFor example, research concluded 1st week in August, there have been 71 AG decisions on town zoning bylaws regarding medical marijuana posted since thenI have reviewed a fraction of those cases but hope to catch up soon
  • Of the 17 communities that zoned for RMDs buffer zones pertain to such uses as:Schools, daycares, parks, playgrounds, drug and alcohol rehabilitation centers, residential areas, churches, other RMDsBuffer zones range from 300-1000 feet.
  • Among zoning districts where RMDs are allowed by special permit or by right as of early September were:Medical professional;Industrial;Commercial;Business;Adult business;General;Commercial;And othersAs of September – three communities allowed RMDs by right with conditions (set backs) and 10 communities
  • August 22, 2013 -181 applications for RMDs submitted to DPHSeptember 23, 2013 - 159 RMD applicants “invited” to submit Phase II applications October 7, 2013 - Phase II applications available -requires identification of cultivating, processing, dispensing sites, show local supportJanuary 13, 2013 - final decisions to be made by DPH(http://www.cambridgema.gov/CDD/zoninganddevelopment/Zoning/Amendments.aspx)Numbers of applicants invited to Phase II range from 2 of 2 submitted in Nantucket County to 40 out of 45 in Middlesex County
  • These are some communities identified to date that have zoned for RMDs this is not a complete listAmherst identified 6 zoning districts where RMDs & Off Site Medical Marijuana Dispensaries (OMMD) allowed by Special PermitMaynard- STM 11/04/13 – RMDs allowed by special permit in three zoning districtsChelmsford adopted zoning bylaws allowing RMDs to be located by special permit in IA and IS districts but then also adopted a moratorium about which the AG if the moratorium is challenged in court, the Town will have the burden “to make a prima facie showing of a rational reason for its action” and that the provision allowing RMDs by special permit may be viewed as undermining the stated purpose and need for the temporary.Wesborough – several provisions disapproved by AG including Rehoboth and Freetown – are these by special permit
  • There have been numerous moratoria communities for which AG decisions were posed after conclusion of the research on August 12 2013 – among them are;Clinton,. West Bridgewater, Mashpee, Wareham, Hardwick, Pepperall, Wrentham, and more.Notable ruling of AG office –found in Clinton case and others is that AG:cannot see how a moratorium that extends beyond December 31, 2014 would be considered reasonable under the Sturges standard. A town should ordinarily be able to complete its planning process for the limited (albeit new and complex) use of RMDs by December 31, 2014, a full 19 months after publication of the DPH regulations.Beyond that time period a moratorium on RMDs is likely to be determined unconstitutional because it is not tied to legitimate planning needs. See Zuckerman v. Hadley,Wareham- AG disapproved of language stating that the moratorium will allow the town “whether to allow facilities associated with the use of medical marijuana…”Other cases not reflected include Avon (May 15, 2014 expiration); Brookline (June 30, 2014, adopted after DHP regulations); Carver (June 3, 2014); Lexington (July 31, 2014, adopted after the DPH regulations); North Andover (June 30, 2014); Dover (June 30, 2014); Seekonk (June 30, 2014); Billerica (June 30, 2014); Whitinsville (June 30, 2014); Millis (June 30, 2014); Medway (June 30, 2014); Wilbraham (June 30, 2014); Needham (March 1, 2014); Sandwich (June 30, 2014); Dracut (July 1, 2014); Boxborough (June 30, 2014); N. Reading (October 31, 2014); Charlmont (June 30, 2014); Walpole (June 30, 2014)
  • Town by laws submitted within 30 days of town meeting adjournment to AG officeAG has 90 days to decide consistency with statutory or constitutional lawDetermination must be in writing and AG approves or disapprovesAG decisions -as all legal decisions – are written narrowly to apply to specific circumstances of a particular case.However, if a jurisdiction has provisions similar to ones deemed problematic by AG it is advisable to have town counsel or city solicitor review bylaws under consideration in light of AG decisions.For example – the Wakefield decision says that there can be no permanent ban or moratorium on RMDs in a town A few other communities that had originally sought to ban elected not to given this Wakefield decisionAG has said that temporary moratoria is permissible (Burlington)
  • One moratoria by law includedlanguage stating :That special permit is required for cultivation That offsite marijuana delivery by RMDs is prohibited(Westborough)
  • Regulations REQUIRE that hardship cultivation be at primary residence of patient or caregiver.Regulations regarding testing may require offsite delivery to and from laboratories by RMDs.Requiring discretionary special permit or prohibiting hardship cultivation at primary residence of patient/caregiver frustrates purpose of Act.
  • More than one moratoria bylaw has contained language stating that the moratoria will continue until:“Future time that Town enacts superseding zoning bylaw(s) setting forth allowed locations, dimensional, parking, and other requirements applicable to medical marijuana uses and MMTCs”Examples of jurisdictions whose bylaws included this provision are Wareham,
  • . Towns can impose reasonable time limits on development if restrictions are:“Temporary and adopted to provide controlled development while the local government engages in comprehensive planning studies”Moratoria cannot be of potentially unlimited duration.
  • Moratoria bylaws in several communities (Wareham, Sharon, Tyngsborough, Needham, Canton, and Belmont, for example) have stated that the purpose of the respective moratoria was to enable towns to determine:Whether to allow facilities associated with medical marijuana … to the extent that such facilities are permitted under state laws and regulations”
  • The AG states that:If the bylaw is challenged in court, the town will be required to make a prima facie showing of a “rational reason” for its actions, and while the AG cannot conclude that the purpose fails the rational basis test, the language of the bylaw may leave the town open to challenge.AG urges consultation with town counsel.
  • Several bylaws have contained language addressing exclusion of accessory uses – saying that in no case shall RMDs or cultivation, possession, processing, etc. of marijuana products be considered accessory to any use.Among communities whose bylaws contained this provision are Wareham, Needham.
  • Towns cannot apply this provision is a way conflicts with the Act or regulations Example: hardship cultivation registrations are issued by DPH to a qualifying patient who has limited access to a registered marijuana dispensary. AG did not disapprove this provision but issues warning regarding application in a manner inconsistent with act or regulations.
  • Registration allows patient or personal caregiver to cultivate a limited number of plants in an enclosed, locked facility.
  • Regulations require applications for registration to include “address of the single location that shall be used for the cultivation of marijuana, which shall be either the registered qualifying patient’s or one personal caregiver’s primary residence.”
  • Therefore, town cannot prohibit hardship cultivation at patient or caregiver primary residence on basis it is not an allowable accessory use.Such a prohibition would frustrate the purpose of the Act, and interfere with the operation of the regulations.
  • AG office has stated that a moratorium be extended to far in time:The town should ordinarily be able to complete its planning process for the limited (albeit new and complex) use of RMDs by December 30, 2014, a full 19 months after publication of the DPH regulations. Beyond that time period a moratorium on RMDs is likely to be determined unconstitutional because it is not tied to legitimate planning needs.For example: The AG disapproved the Canton moratorium insofar as it extended from July 1, 2014 through June 30, 2015. (AGO Decision on Canton Case # 6816 issued September 12, 2013). Same language included in Dartmouth’s case – town concludes its moratorium on December 4, 2014.Canton adopted a two year moratorium (the first of which was disapproved by the AG office as it “has no presently discernible legitimate zoning purpose , and risks interfering with the operation of Chapter 369 of the Acts of 2012. That would have run from July 1, 2014 to June 30, 2015. The first moratorium year – July 1, 2013 to June 30, 2014 was approved by the AG office.
  • One suggested language raised on a list serve is “ . . . in which is located a public or private elementary school, middle school, secondary school, preparatory school, licensed daycare center, or any other facility in which children commonly congregate in an organized ongoing formal basis; or  . . . .”(Sailsbury) we are starting work on creating a medical marijuana bylaw. I am curious about the language "Where children commonly congregate". How has this been interpreted in other communities? The obvious ones, schools, day care, parks. But what about places that are very kid-ish, such as an ice cream stand, dance studio, etc? Where does one draw the line?
  • Medical marijuana ppt by jody lehrer, mpa

    1. 1. LOCAL GOVERNMENTS & THE ACT FOR THE HUMANITARIAN MEDICAL USE OF MARIJUANA MASSACHUSETTS J O D Y H . L E H R E R , J . D . , M PA C A N D I D AT E B R I D G E WAT E R S TAT E U N I V E R S I T Y
    2. 2. OVERVIEW OF PRESENTATION 1. 2. 3. 4. 5. Chapter 369 of the Acts of 2012 The research process The findings AG decisions Need for updated data
    3. 3. BALLOT QUESTION 3 Chapter 369 of the Acts of 2012 63.3% of votes cast Passed in 349 of 351 communities (Mendon and Lawrence) Effective January 1, 2013 Regulations effective May 24, 2013
    4. 4. CHAPTER 369 OF THE ACTS OF 2012 Qualifying patients with debilitating medical conditions may possess up to 60 day supply (10 oz) of medical marijuana Protects doctors, health care professionals, qualifying patients, caregivers & dispensary agents from prosecution under state law.
    5. 5. THE RESEARCH PROCESS Data was collected from 151 towns and cities This is 43% of all local governments Data collected from 131 towns (42% of all 312 towns) Data was obtained from 20 cities (or 51% of all 39 cities).
    6. 6. Overview of Findings Action Taken # % of Respondents Moratoria 117 77 Zoned for RMDs Banned RMDs Moratoria rejected at ATMs No moratoria or regulation likely 17 2 3 11 1 2 2 1 Considering zoning 2 1 Still deciding or waiting for others 8 5
    7. 7. BUFFER ZONES FOR RMDS Of 17 communities that zoned for RMDs buffer zones pertain to such uses as: Schools, daycares, parks, playgrounds, drug and alcohol rehabilitation centers, residential areas, churches, other RMDs Buffer zones range from 300-1000 feet.
    8. 8. RMDs Allowed in … Medical professional; Industrial; Commercial; Business; Adult business; General; Commercial; Administrative Office; Industrial Extensive; Office Light Industrial District
    9. 9. PHASE 2 -RMD APPLICATION PROCESS • 08/22/13 -181 RMD applications submitted 09/23/13 -159 invited to Phase II • 10/07/13 - Phase II applications available (identify cultivating, processing, dispensing sites, provide evidence of local support) • 01/31/13 final decisions to be made by DPH
    10. 10. COMMUNITIES REQUIRING SPS FOR RMDS Amherst B-G; B-L; B-VC; COM; OP; LI Chelmsford Industrial Limited and Industrial Special Chicopee Freetown Industrial 2 Leicester Bus, Central Bus., Industrial, Bus. Ind. A, Highway Bus. 1 & 2. Merrimac Office Light Industrial District Maynard B; HCI; I Medfield Industrial-Extensive Zone Pittsfield Provincetown Westborough Westwood Adult Entertainment District
    11. 11. MORATORIA & EXPIRATION DATES Clinton December 31, 2014 W. Bridgewater December 30, 2014 Mashpee October 21, 2013 Wareham May 1, 2013 Hardwick June 22, 2014 Pepperell May 6, 2014 Wrentham (after DPH regs) June 30, 2014 Acushnet November 30, 2014 Sturbridge (after DPH regs) June 30, 2014 Belmont June 30, 2014 Natick June 30, 2014 Tyngsborough April 3, 2014
    12. 12. LOCAL PROVISIONS & AG DECISIONS AG decisions -as all legal decisions – are written narrowly to apply to specific circumstances of a particular case. However, if a city or town has a provision similar to one deemed problematic by AG, ask town counsel or city solicitor to review pending bylaw in light of AG decisions.
    13. 13. BY-LAW LANGUAGE: EXAMPLE 1 One by law included language stating : That special permit is required for cultivation That offsite marijuana delivery by RMDs is prohibited
    14. 14. WHAT THE AG SAID: WHAT THE AG SAID: Regulations require hardship cultivation be at primary residence of patient or caregiver. Regulations regarding testing may require offsite delivery to and from laboratories by RMDs. Requiring discretionary special permit or prohibiting hardship cultivation at primary residence of patient/caregiver frustrates purpose of Act.
    15. 15. BY-LAW LANAGUGE: EXAMPLE 2 Bylaws have said that moratoria will continue until: “Future time that Town enacts superseding zoning bylaw(s) setting forth allowed locations, dimensional, parking, and other requirements applicable to medical marijuana uses and MMTCs”
    16. 16. WHAT THE AG SAID: WHAT THE AG SAID: Can impose reasonable time limits on development if restrictions are: “Temporary and adopted to provide controlled development while the local government engages in comprehensive planning studies” Moratoria cannot be of potentially unlimited duration.
    17. 17. BY–LAW LANGUAGE: EXAMPLE 3 That the purpose of the moratorium was to enable the town to determine: Whether to allow facilities associated with medical marijuana … to the extent that such facilities are permitted under state laws and regulations”
    18. 18. WHAT THE AG SAID: What the AG said: •If bylaw challenged in court, must make a prima facie showing of “rational reason” for its action. •While AG cannot conclude that the purpose fails the rational basis test, the language may leave town open to challenge. •AG urges consultation with town counsel.
    19. 19. BY-LAW LANGUAGE: EXAMPLE 4 Exclusion of Accessory Uses MMTCs, acquisition, cultivation, possession, processing, transference, transportation, sale distribution, administration of marijuana, products containing or derived from marijuana, or related products shall not be considered accessory to any use.
    20. 20. WHAT THE AG SAID: WHAT THE AG SAID: Towns cannot apply this provision is a way conflicts with the Act or regulations Example: DPH issues hardship cultivation registrations to a qualifying patient who has limited access to a registered marijuana dispensary.
    21. 21. CONTINUED - ACCESSORY USE Registration allows patient or personal caregiver to cultivate a limited number of plants in an enclosed, locked facility.
    22. 22. CONTINUED -ACCESSORY USE Regulations require applications for registration to include the single address to be used for cultivation of marijuana, which shall be either the registered qualifying patient’s or one personal caregiver’s primary residence.”
    23. 23. CONTINUED - ACCESSORY USE Therefore, town cannot prohibit hardship cultivation at patient or caregiver primary residence on basis it is not an allowable accessory use.
    24. 24. REGARDING MORATORIA A.G. SAYS: • Town should ordinarily be able to complete planning process for limited (albeit new & complex) use of RMDs by 12/30/14, a full 19 months after publication of DPH regulations. • If longer than this, a moratorium likely to be determined unconstitutional as it is not tied to legitimate planning needs.
    25. 25. CONCLUSION • Review AG decisions in light of any similar provisions in your own community’s proposed by laws • Be cognizant of language regarding “where children congregate” – broad potential interpretation.

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