Arizona Medical Marijuana Act - The Basic Facts
By:
Susan E. Wells, Esq.
The passage of the Arizona Medical Marijuana Act (A.R.S. §
36-2801, et seq.) (the "AZMM Act") has generated a lot of
controversy. That's not surprising, considering that the AZMM
Act was passed by a margin of only 4,340 votes (out of 1,678,356
votes cast), and only passed after the early and provisional
ballots were counted.
The AZMM Act's supporters and detractors have continued
the debate, as the first draft of the rules implementing the AZMM
Act issued by the Arizona Department of Health Services (the
"Department") generated more than 1,500 comments. The
Department is expected to issue revised draft rules on January 31,
2011, followed by an additional opportunity to comment, as well as
public hearings. The final rules are expected to be published
on March 28, 2011, for implementation in April
2011.
The following is a summary of the Act, in plain English
(or as close to plain English as is possible, without eliminating
necessary detail):
Who Can Possess Marijuana?
•
Qualifying patients who have registered with the
Department and have been issued registry identification cards
- A
person who has been diagnosed by a physician (an Arizona-licensed
M.D., D.O., N.D. or N.M.D. M.D. (H)) as having a debilitating
medical condition. Debilitating medical conditions
include:
- Cancer, glaucoma,
HIV positive, AIDS, Hepatitis C, ALS (amyotrophic lateral
sclerosis, also known as Lou Gehrig's Disease), Crohn's Disease and
agitation of Alzheimer's Disease
- A
chronic or debilitating disease or medical condition, or its
treatment, that produces cachexia (wasting syndrome), severe and
chronic pain, severe nausea, seizures (including epilepsy) or
severe and persistent muscle spasms (including multiple
sclerosis)
To apply for a registry identification card, the qualifying
patient must submit to the Department a written certification
issued, within the prior 90 days, by his physician in the course of
a physician-patient relationship after the physician has completed
a full assessment of the qualifying patient's medical
history. The physician's certification must:
-
Identify the debilitating medical condition
- State
that, in the physician's professional opinion, the qualifying
patient is likely to receive therapeutic or palliative benefit from
the medical use of marijuana to treat or alleviate the qualifying
patient's debilitating condition or symptoms associated with the
debilitating medical condition
- Be
signed and dated by the physician
In addition, the qualifying patient must submit a signed
certification that he will not divert medical marijuana to anyone
who is not permitted to possess medical marijuana.
Under the present version of the draft rules, the
application fee for a qualifying patient is $150.
•
Designated caregivers who have registered with the
Department and have been issued registry identification cards
-
Must be 21 years old
-
Must agree to assist a qualifying patient with his medical use of
marijuana
- May
not have been convicted of an excludable felony
Each qualifying patient designates his designated
caregivers his application. The designated caregiver may be a
designated caregiver for up to five qualifying patients. The
designated caregiver must submit a set of fingerprints and a signed
certification that he agrees to be the qualifying patient's
designated caregiver and not to divert medical marijuana to anyone
who is not permitted to possess medical marijuana.
Under the present version of the draft rules, the
application fee for a designated caregiver is $200.
•
Nonprofit[1] Medical
Marijuana Dispensaries - not-for-profit individual or
entity that acquires, possesses, cultivates, manufactures,
delivers, transfers, transports, supplies, sells or dispenses
marijuana (or related supplies and educational materials) to
qualifying patients, designated caregivers and dispensary
agents
The number of nonprofit medical marijuana dispensaries
("dispensaries") will be limited to one per 10 registered
pharmacies operating in Arizona (except that there must be one
dispensary in each county).
A dispensary may apply to the Department for a
registration certificate by submitting:
•
The legal name of the dispensary
•
The physical address of the dispensary and, if applicable, the
physical address of the separate location at which the dispensary's
medical marijuana will be grown[2]
•
The name, address and date of birth of each dispensary agent,
including principal officers and board members[3]
•
A sworn statement certifying that the dispensary is in compliance
with applicable city, town and county zoning restrictions
•
Operating procedures consistent with the Department's rules for
oversight of the dispensary, including security and record-keeping
measures
Under the present version of the draft rules, the
application fee for a dispensary is $5,000. The fee is
nonrefundable, regardless of whether the applicant is issued a
registration certificate.
Dispensaries will be exempt from the payment of state
income taxes.
Dispensaries may acquire usable medical marijuana or
medical marijuana plants from a registered qualifying patient or a
registered designated caregiver only if the qualifying patient or
the designated caregiver receives no compensation for the
marijuana.
•
Dispensary Agents
-
Principal, officer, director, employee or volunteer of a
dispensary
-
Must be at least 21 years old
-
Must not have been convicted of an excludable felony
To apply for a registry identification card for a
dispensary agent, the dispensary must submit to the Department for
the dispensary agent a set of fingerprints and a signed
certification that he agrees not to divert medical marijuana to
anyone who is not permitted to possess medical marijuana.
Under the present version of the draft rules, the
application fee for a dispensary agent is $200.
How much marijuana can a qualifying patient or a
designated caregiver possess?
•
A qualifying
patient may possess 2-½ ounces of usable marijuana and, if the
individual is authorized to grow marijuana[4], 12 marijuana
plants.
•
A designated
caregiver may possess, for each qualifying patient, 2-½ ounces of
usable marijuana and, if the individual is authorized to grow
marijuana, 12 marijuana plants.
Who Can Receive Money for Providing Medical
Marijuana?
•
A dispensary
may receive payment for all expenses incurred in its operation.
•
A designated
caregiver may not receive a fee or other compensation
(other than reimbursement of actual costs) for his service as a
caregiver and can only receive reimbursement of his actual costs
for assisting a qualifying patient's medical use of marijuana.
Are there any places within Arizona that you
cannot use or possess medical marijuana?
•
At any
preschool, primary or secondary school
•
On a school
bus
•
In any
correctional facility
In addition, medical marijuana cannot be smoked on public
transportation or in any other public place and cannot be consumed
on the premises of a nonprofit medical marijuana dispensary.
Adult care facilities (such as assisted living centers and
nursing homes) may adopt reasonable restrictions on the
use of medical marijuana by the people they serve. These
restrictions may include a non-smoking policy, designated places to
consume medical marijuana and refusals to obtain, store or maintain
a qualifying patient's medical marijuana supply.
However, an adult care facility may not unreasonably limit
a qualifying patient's access to, or use of, medical marijuana,
unless it may lose a monetary or licensing-related benefit under
federal laws or regulations.
Are there other restrictions on
a qualifying patient's use of medical marijuana?
The AZMM Act also does not shield any person from
criminal, civil or other penalties for negligence, professional
malpractice or operating a motor vehicle, plane or boat while under
the influence of medical marijuana. However, the presence of
metabolites or components of marijuana that appear in insufficient
concentration to cause impairment will not, in and of itself, mean
that a qualifying patient is under the influence of marijuana.
The Department's rules cannot modify the
AZMM Act. However, the rules may address the application and
registration procedures, the operation of dispensaries (provided
that no undue burdens are imposed upon dispensaries) and how the
Department will add conditions and treatments to the list of
debilitating medical conditions under the AZMM Act. Again,
the Department is expected to issue revised draft rules on January
31, 2011. They will be accessible on the Department's
website, which is www.azdhs.gov/prop203/,
and a summary will be available at
www.jaburgwilk.com/attorneys/susan-e-wells.aspx.
[1] Although the dispensary need
not be a tax-exempt entity for federal income tax purposes and it
appears that the dispensary need not be not-for-profit corporation
under Arizona law, the entity must have Bylaws that contain
provisions that restrict the revenue and receipts in a manner that
would be consistent with its nonprofit character.
[2] Neither the dispensary nor
the cultivation site may be located within 500 feet of a public or
private school in existence at the time of the application.
Each city, town and county may have additional requirements and
restrictions.
[3] No principal officer or board
member may have served as a principal officer or board member of a
dispensary that has had its registration certificate revoked.
[4] If no dispensary is operating
within 25 miles of the qualifying patient's home, the individual
will be permitted to grow his own medical marijuana or appoint a
designated caregiver to grow it for him.
About the author: Susan E.
Wells is a lawyer at the Phoenix based law
firm of Jaburg Wilk where she assists both business owners
and entrepreneurs. She can be reached at 602.248.1034 or
sew@jaburgwilk.com.
This article is not intended to provide legal advice
and only relates to Arizona law. It does not consider the
scope of laws in states other than Arizona. Always consult an
attorney for legal advice for your particular situation.
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