I
wouldn't be a good attorney unless I prefaced this article with a few
disclaimers: 1) Marijuana is still a controlled schedule I substance and is
illegal in the eyes of the Federal Government of the United States; 2) This
article is not to be construed as legal advice, nor is intended to take the
place of the advice of an attorney, and you should consult with an attorney
before taking any actions in furtherance of the subject matter of this article.
Ok, let's begin.
In
the month of November, the State of Arizona passed Proposition 203, which would
exempt certain people from controlled substances laws in the State of Arizona.
However, it will still take some time before medical marijuana is implemented
as policy in Arizona. buy weed online
The Arizona Department of Health Services has released a proposed timeline for
the drafting of the rules surrounding the implementation of Proposition 203. So
far, these are the important time periods that should be paid close attention
to:
December
17, 2010: The first draft of the medical marijuana rules should be released and
made available for comment on this date.
January
7, 2011: This will be the deadline for public comment on the first draft of
rules mentioned above.
January
31, 2011: The second draft of the rules will be released on this date. Once
again, it will be available for informal comment as in the draft referred to
above.
February
21 to March 18, 2011: More formal public hearings will be held about the
proposed rules at this time, after which the final rules will be submitted to
the Secretary of State and made public on the Office of Administrative Rules
website.
April
2011: The medical marijuana rules will go into effect and be published in the
Arizona Administrative Register.
It
is important that at all times throughout the consultation process, interested
parties submit briefs and/or make oral presentations when permitted. Groups
with interests contrary to those of medical marijuana advocates may also be
making presentations, and may convince the State to unnecessarily restrict the
substance or those who may qualify to access it if there is no voice to
advocate in favor of patients' rights.
Some
key points about Proposition 203's effects
-Physicians
may prescribe medical marijuana for their patients under certain conditions.
"Physician" is not defined in a way limited to normal medical
doctors. Osteopaths licensed under Title 32, Chapter 17; naturopaths licensed
under Title 32, Chapter 14; and homeopaths licensed under Title 32, Chapter 29
may all be eligible to recommend marijuana for their patients.
-In
order to be prescribed medical marijuana, a person must be a "qualifying
patient." A qualifying patient is defined as someone who has been
diagnosed by a "physician" (as defined above) as having a
"debilitating medical condition."
-Debilitating
medical conditions include:
•
Cancer, glaucoma, HIV positive status, AIDS, hepatitis C, amyotrophic lateral
sclerosis, Crohn's disease, or agitation of Alzheimer's disease or the
treatment of these conditions.
•
A chronic or debilitating disease or medical condition or its treatment that
produces one or more of the following: Cachexia or wasting syndrome; severe and
chronic pain; severe nausea; seizures, including those characteristic of
epilepsy; or severe and persistent muscle spasms, including those
characteristic of multiple sclerosis.
•
Any other medical condition or its treatment added by the Department of Health
Services pursuant to Section 36-2801.01.
This
last qualifying condition is underlined because it is vitally important during
the rulemaking process. Although Proposition 203 allows for the public to
petition the Department of Health Services to exercise its discretion to add
conditions under this section, bureaucracy is notoriously difficult to get to
change any law. buy weed seeds
The initial discretionary rules for additional treatments could be exercised
during the public consultations that occur between December and March, though
this is not certain.
It
is therefore important that, in the event that the addition of medical
conditions is considered during the consultations, any stakeholder who wishes
for a medical condition not listed in the first two bulleted items above to
lobby during the public consultation periods for the Department to add the
additional medical condition to the list of debilitating medical conditions. In
order to increase the prestige of any presentations made to justify adding
medical conditions under Section 36-2801.01, it may be helpful to solicit the
testimony of sympathetic Arizona-licensed medical doctors who can testify on
paper and at the public hearings about why the proposed condition should be
added. Documents showing that other jurisdictions, both in the United States
and elsewhere, currently use marijuana as a treatment for the proposed
condition may be helpful, as would medical journals on the subject.
It
should be remembered that despite his cheery YouTube videos about the medical
marijuana rule drafting process, Director of Health Services Will Humble wrote
a submission in opposition to the passing of Proposition 203. He did so on the
grounds that the FDA does not test the drug, and even though the federal
government's anti-marijuana policy is well-known it should not be relied on as
an authority for unbiased medical marijuana research. There is no reason to
believe that Director Humble will be any less inclined to obstruct the use of
medical marijuana during the rulemaking stage, and all proponents of medical
marijuana should be sure to make their voices heard at the consultations to
prevent the obstruction of the intent of Proposition 203.
Extent
of Rulemaking during Consultations
There
are other provisions in Proposition 203 which will be discussed during the
initial rulemaking process, and they will probably be the main focus of the
consultations. The consultations will create rules:
•
Governing the manner in which the Department of Health Services will accept the
petitions from the public previously mentioned, regarding the addition of
medical conditions to the list of the already enshrined debilitating medical
conditions.
•
Establishing the form and content of registration and renewal applications
submitted under the medical marijuana law.
•
Governing the manner in which the Department will consider applications for and
renewals of medical marijuana ID cards.
•
Governing the various aspects around the newly legalized nonprofit medical
marijuana dispensaries, including recordkeeping, security, oversight, and other
requirements.
•
Establishing the fees for patient applications and medical marijuana dispensary
applications.
The
most crucial part of the consultation period will be regarding the rules
governing the establishment and oversight of medical marijuana dispensaries. If
interest groups lobby the Department to make the recordkeeping, security,
oversight, and other requirements around dispensaries too restrictive, it will
have the effect of reducing the availability of medical marijuana to patients
and driving up the price of medical marijuana due to the lack of supply. It
could simply become too costly to comply with all of the regulations.
During
this stage, it is important that stakeholders-particularly medical marijuana
dispensaries from out-of-state, and perhaps pharmacists with a bit of economic
knowledge-submit briefs explaining why certain proposed rules may have a
negative effect on the patients this Proposition is supposed to help. order
weed online The proposed rules
have not come out yet, but when they do, they should be closely scrutinized for
the possible negative impact that unnecessarily tough security and
recordkeeping on nonprofit dispensaries might have on patients.
The
other major factor in the rulemaking will have to do with the fees. The
Department will be setting fees for medical marijuana dispensaries during the
consultation period. Proposition 203 provides that the fees may not exceed
$5,000 per initial application, and $1,000 per renewal. However, with some
lobbying during the public consultation, it is possible that the actual fees will
be much less since these are simply the maximum that the Department may charge.
Discrimination
against Medical Marijuana Users
Under
Proposition 203, discrimination against medical marijuana users will be
prohibited in certain circumstances. Based on our analysis, a person may not:
As
a school or landlord, refuse to enroll someone or otherwise penalize them
solely for their status as a medical marijuana cardholder, unless not doing so
would result in the loss of a monetary or licensing related benefit under federal
law or regulations.
As
an employer, discriminate against hiring someone, or terminate them or impose
any conditions on them because they are a medical marijuana cardholder, unless
not doing so would result in the loss of a monetary or licensing related
benefit under federal law or regulations. Employers may still terminate
employees if the employee is in possession of or impaired by marijuana on the
premises of the place of employment or during the hours of employment.
As
a medical care provider, discriminate against a cardholder, including in
matters of organ transplants. Medical marijuana must be treated as any other
medication prescribed by a physician.
Be
prevented, as a cardholder, from having visitation custody or visitation or
parenting time with a minor, unless the cardholder's behavior "creates an
unreasonable danger to the safety of the minor as established by clear and
convincing evidence."
Although
there are certain prohibitions on discrimination, there are also provisions
which permit discrimination against medical marijuana cardholders:
Government
medical assistance programs and private health insurers are not required to
reimburse a person for their medical marijuana use.
Nobody
who possesses property, including business owners, is required to allow medical
marijuana on their premises (this seemingly includes landlords who, although
they cannot refuse tenants based on their being a cardholder, are permitted to
prevent cardholders from bringing marijuana onto the landlord's property).
Employers
are not required to allow cardholders to be under the influence of or ingest
marijuana while working, though the presence of marijuana in the body which is
not of a sufficient concentration to cause impairment does not establish being
under the influence of it.
Rules
Related to the Establishment of Dispensaries
Although
the final rules around security, recordkeeping, and other requirements for
medical marijuana dispensaries will not be established until April 2011, there
are certain requirements which are enshrined in Proposition 203 itself and can
be known ahead of the time that the final rules come out. These minimal
requirements may not be as restrictive as the final requirements which are
published in April 2011.
Medical
marijuana dispensaries must be nonprofit. They must have bylaws which preserve
their nonprofit nature, though they need not be considered tax-exempt by the
IRS, nor must they be incorporated.
The
operating documents of the dispensaries must include provisions for the
oversight of the dispensary and for accurate recordkeeping.
The
dispensary must have a single secure entrance and must implement appropriate
security measures to deter and prevent the theft of marijuana and unauthorized
access to areas containing marijuana.
A
dispensary must not acquire, possess, cultivate, manufacture, deliver,
transfer, transport, supply, or dispense marijuana for any purpose other than
providing it directly to a cardholder or to a registered caregiver for the
cardholder.
All
cultivation of marijuana must take place only at a locked, enclosed facility at
a physical address provided to the Department of Health Services during the
application process, and accessible only by dispensary agents registered with
the Department.
A
dispensary can acquire marijuana from a patient of their caregiver, but only if
the patient or caregiver receives no compensation for it.
No
consumption of marijuana is permitted on the property of the dispensary.
A
dispensary is subject to reasonable inspection by the Department of Health
Services. The Department must first give reasonable notice of the inspection to
the dispensary.
Comparison
to California's Medical Marijuana Law
The
Arizona law is by no means the same as the law in California. There are
certainly some differences between the two, though in some respects they are
comparable. This is a comparative analysis of the two laws.
Similarities:
Both
laws, as a practical matter, allow for broad discretion on the part of a
physician to prescribe marijuana to patients who suffer from pain. In the
Arizona law, "severe and chronic pain" is the legislated standard. In
the California law, any "chronic or persistent medical symptom" that
substantially limits the life of the patient to conduct one or more major life
activities as defined by the Americans with Disabilities Act of 1990, or that
if not alleviated, will cause serious harm to the patient's physical or mental
safety, qualifies.
Both
laws have a number of illnesses which are automatically considered qualifying
illnesses for the prescription of medical marijuana. These include, but are not
limited to, AIDS, cachexia, cancer, glaucoma, persistent muscle spasms, seizures,
and severe nausea.
Both
laws require the use of an identification card by those who have been
prescribed medical marijuana, after the cardholders have gone through an
initial application process in which the use of the drug has been recommended
by a physician.
Both
states do not factor in the unusable portion of the marijuana plant in
determining the maximum weight of marijuana that is permissible for possession
by a cardholder.
Differences:
Though
the rules have not been finalized, the Arizona law appears as though it will be
regulated on the state level and therefore uniform across Arizona. The
California law, however, is regulated significantly on the municipal level, and
therefore the rules around dispensaries can vary greatly from one municipality
to the next.
The
Arizona law provides a broader spectrum of people who are considered a
"physician" for the purpose of prescribing medical marijuana. Marijuana Near Me
In California, only medical doctors and osteopaths are considered to be
physicians. In Arizona, in addition to medical doctors and osteopaths,
naturopaths and homeopaths will also be permitted to prescribe medical
marijuana.
In
California, patients or their caregivers may grow marijuana plants in lieu of
using a medical marijuana dispensary. In Arizona, patients may only grow
marijuana or designate someone else to do so in lieu of visiting a dispensary
on the condition that there is no dispensary operating within 25 miles of the
patient's home.
The
maximum possession limit for marijuana in California is eight ounces per
patient, whereas the limit is only 2.5 ounces per patient in Arizona.
-This
is not meant to be legal advice and is provided purely as an analysis of the
current legislation. You should consult with an attorney to discuss these
matters. We are available for consultations for this matter by appointment only
and via prepayment of the consultation fee.
