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OREGON MEDICAL MARIJUANA ACT AMENDED
Limits
increased, some affirmative defenses repealed, other changes enacted
by
Leland R. Berger, esq. *
Background
and Legislative History 1
Win or lose a statewide initiative, some legislative
response seems inevitable. Following passage of the Oregon Medical Marijuana
Act (hereinafter ‘the Act’ or ‘OMMA’) at the November, 1998 General Election,
for example, the 1999 legislature amended the Act at the insistence of law
enforcement, restrained only by legislators who believe that the initiative
power reflects the voice of the people, and by supporters of the Act. The
narrow defeat of Measure 33 at the 2004 general election, combined with the
passage of a bill in the House during the 2003 session that died in the Senate
made some legislation amending the OMMA this session inevitable.
Following the 2003 session, Senator Bill Morissette
(D-Springfield), (the chair of the Senate Health and Human Services Committee
who refused to give the 2003 bill that passed the House a hearing in the
Senate), wrote to Dr. Grant Higginson, the State Health Officer, requesting he
convene an interim legislative advisory committee. This committee, composed of
patients and their advocates, program administrators and law enforcement
representatives met 5 times. Although law enforcement representatives refused
to attend the final meeting to discuss the compromise Dr. Higginson had
drafted, some advocates (including our own Brian Michaels) presented this draft
to Senator Morissette who in turn introduced it as SB772.
Hearings were held before the Senate Health and Human
Services Committee, however, the Committee closed before the bill was
finalized. The bill was re-introduced as SB1085 in the Rules Committee at the
request of Senator Morissette and Senator Jeff Kruse (R-Roseburg, Vice-chair of
the Senate Health and Human Services Committee). Subject to an agreement on
amending it in the House, the Bill passed out of the Senate Rules Committee
and, by a unanimous vote, out of the Senate.
By the time it got to the House, the only Committee
still open was the House State and Federal Law Committee. The previously agreed
upon amendment was added, but also stuffed into the bill was a provision
amending ORS §475.340 in a way which would have allowed employers to
discriminate against patients based solely on their use, and, in doing so,
would have legislatively ‘fixed’ the Court of Appeals’ decision in Washburn
v. Columbia Forest Products, 197 Or App 104, 104 P3d 609, rev.
allowed 339 Or 156 (2005). With these amendments, SB1085
passed back out to the Senate, where it seemed as if it were dead.
During the final all night session of 2005
Legislature, a Senate Conference Committee deleted the offending amendment and
the bill passed out of the Senate, and re-passed in the House. On August 29,
2005 the Governor signed this bill into law. The amendments will become
effective on January 1, 2006.
Section 1 amends the OMMA’s
definitions statute, ORS §475.302, in two ways. It adds to the definition of
‘Delivery’ this sentence: ““Delivery” does not include transfer of marijuana by
a registry identification cardholder to another registry identification
cardholder if no consideration is paid for the transfer.”
This is somewhat ambiguous as application of this
definition to the term ‘delivery’ as it is used elsewhere in the Act 2 can create a construction
contrary to the intent of this legislation. The clear intent of this section
was to codify that cardholders sharing medical marijuana (including ‘usable
marijuana,' seedlings or starts and mature plants) are protected from state
criminal law, so long as they are within the limits, and not engaging in
unprotected activity.
The second amendment is to define a “Marijuana grow
site” as ‘a location where marijuana is produced for use by a registry
identification cardholder and that is registered under the provisions of
Section 8 of this 2005 Act.’ More on this in the discussion on Sections 8 and
9, below.
Section 2 amends ORS §475.306 (the
statute governing limits for cardholders) by repealing the limits (they are
re-defined in Section 9) and also repealing the cardholder affirmative defense
for being over the limit. It enacts a new requirement, at law enforcement’s
request, that cardholders who are ‘using or transporting marijuana in a
location other than the residence of the cardholder’ must possess the registry
identification card when doing so.
More significantly, Section 2 amends the direction to
the Department of Human Services to define by rule when a plant is mature and
when it is immature by enacting this definition: “a plant that has no flowers
and that is less than 12 inches in height and less than 12 inches in diameter
is a seedling or a start and is not a mature plant.” The legislative intent
here was that to constitute a ‘mature plant,’ all three prerequisites must be
met.
Section 3 amends §475.309, the
registry section of the OMMA to include a requirement that a new category of
person (denominated ‘the person responsible for the grow site’) register, and
also requiring that the applicant (i.e. patient)
state in writing “whether the marijuana will be produced at a location where
the cardholder or designated primary caregiver is present or at another
location. It also adds ‘the person responsible for the grow site’ to cardholder
and designated primary caregiver to define which people can collectively
possess the permitted amounts of medical marijuana.
Section 4 extends the protections of
the OMMA to licensed health care professionals in licensed health care
facilities who are administering medical marijuana to a patient who resides in
the facility. Denominated the ‘Ken Brown’ provision, for the Measure 33
co-chief petitioner who was paralyzed from the neck down in an accident
involving a drunk driver, this provision was a part of the legislative advisory
committee proposal. At the request of counsel for the Oregon Medical
Association, this section also clarifies that no licensed health care
professional may be required to administer medical marijuana, and, paralleling
language from §475.340 related to employment, provides that no licensed health
care facility is required ‘to make accommodations for the administration of medical
marijuana.' It also provides that if the method of administration of the
medical marijuana is smoke, that there be adequate ventilation.
Section 5 amends §475.331, relating to
disclosure of registry information to law enforcement. It expands the required
registry to include ‘the address of the authorized marijuana grow sites.’ It
mandates that the Department of Human Services develop a system which would
allow law enforcement to verify, 24 hours a day/7days a week whether a person
is registered as a patient or a designated primary caregiver. It codifies the
current practice of requiring ‘adequate identification, such as a badge number
or similar authentication of authority.’ Most significantly, post-Raich, 3 it prohibits the rerelease
or use of this information ‘for any purpose other than verification’ that the
cardholder is a cardholder and that the place is an authorized marijuana grow
site.’ Although Section 5 does not require the creation of a Person Responsible
for a Marijuana Grow Site registry, advocates for the OMMA anticipate that the
Department of Human Services will include such a registry as a part of the
registry required to be created under Section 8 of this 2005 Act.
Section 6 adds to the OMMA the new
material contained within Sections 7,8,9 and 10 of the 2005 amendment.
Section 7 creates a formal Advisory
Committee to codify the existing process. In the summer of 2002, patients and
their advocates protested the Department’s decision to withhold the issuance of
cards incidental to their discovery of three cards being issued where the
attending physician’s signature was forged. The ad
hoc committee met monthly at first, and has met quarterly
for the last two years. One interesting facet of the new advisory committee is
that the director of the Department of Human Services is required to appoint 11
members ‘from persons who possess registry identification cards, designated
primary caregivers of person who possess registry identification cards and
advocates of the Oregon Medical Marijuana Act.’ As law enforcement has
consistently opposed the Act, presumably the committee will have no law
enforcement representation.
This provision was a part of the legislative advisory
committee’s proposal, originally introduced as SB772.
Section 8 is entirely new, and was the
result of legislative compromise 4.
This section mandates that the department create ‘a marijuana grow site
registration system to authorize production of marijuana by a registry
identification cardholder, a designated primary caregiver who grows marijuana
for the cardholder or a person who is responsible for a marijuana grow site.’
The grow site registry card is issued to the registry identification cardholder
(patient), who is required to display the card at the grow site, whenever
marijuana is being produced. If marijuana is being cultivated for more than one
registry identification cardholder (patient) at one grow site, each registry
identification cardholder’s grow site registration card must be posted there.
This section also provides that:
All usable marijuana, plants, seedlings and seeds
associated with the production of marijuana for a registry identification
cardholder by a person responsible for a grow site are the property of the registry
identification cardholder and must be provided to the registry identification
cardholder upon request.
If a patient is convicted of manufacturing or
delivering a Schedule 1 or 2 controlled substance, the patient’s grow site
registration card is restricted in that the patient is prohibited from
cultivating for 5 years. The patient could still designate a person responsible
for a marijuana grow site to cultivate for him or her, but the patient could
not be present at the grow site. A similarly convicted non-patient would also
be so restricted. A second violation results in a lifetime restriction.
Finally, this section authorizes the patient or the
designated primary caregiver to: reimburse the person responsible for a
marijuana grow site for the costs of supplies and utilities associated with the
production of marijuana for the registry identification cardholder. No other
costs associated with the production of marijuana for the registry
identification cardholder, including the cost of labor, may be reimbursed.
Section 8a clarifies that the grow site
restrictions incidental to MCS/DCS convictions only applies if the conviction
relates to a ‘violation of ORS 475.992(1)(a) or (b) that occurred on or after the
effective date of this 2005 Act.’ The intent here was that the offense post
date the act, not just the date of the conviction, so as to avoid ex
post facto problems.
Section 9 sets the new limits for
production and possession under the OMMA. Patients can have up to 6 mature
plants, 18 marijuana starts or seedlings and up to 24 ounces of usable
marijuana. Unlike current law, there is no distinction in amounts depending on
whether one is at the marijuana grow site or away from the garden. Patients
whose cards are restricted by virtue of an MCS/DCS conviction are limited to
possessing one ounce.
Multi-patient gardens are more complicated.
If the patient, or the patient’s designated primary
caregiver is not present at the garden, the
‘person responsible for the marijuana grow site’ may produce up to 6 mature
plants, 18 starts or seedlings and may possess up to 24 ounces of usable
marijuana for up to four registry identification cardholders or their
designated primary caregivers per year. Thus, a total of 24 mature plants, 76
seedlings or starts and 6 pounds of usable marijuana may be present at such a
location. When the garden ceases producing marijuana, or upon request from the
patient or the patient’s designated primary caregiver, the person responsible for
the grow site must provide all marijuana produces to the patient or the
cardholder’s designated primary caregiver.
What is less clear are the different permutations
which currently exist. For example, in a multi-patient dwelling, where all are
present at the garden site, it would follow that there could be 6 mature
plants, 18 starts or seedlings and 24 ounces for each patient. As there is no
restriction in the OMMA as to the number of patients for whom a person can be
the ‘designated primary caregiver’ 5, it
should follow that such a caregiver actually present at the grow site should be
able to cultivate 6 mature plants, 18 starts or seedlings and possess 24 ounces
for each patient for whom the person is providing care. There was some
discussion during the hearings on SB772, however, suggesting that the
legislature reads the statutory definition of ‘designated primary caregiver’
less broadly than do the advocates of the law.
OMMA advocates hope and expect that these scenarios
will be clarified through administrative rulemaking.
Section 10 codifies the current
practice in many counties limiting the number of plants or quantity of usable
marijuana seizable by law enforcement to those plants or seedlings or usable
marijuana ‘that are in excess of the amount or number authorized.’ This would
prohibit the practice of other counties where law enforcement have a scorched
earth policy of taking all the medicine.
Section 11 corrects an oversight in the
section protecting physicians by clarifying that the physicians who are
protected are the ‘attending’ physicians. See,
ORS 475.302(1), OAR 333-008-0010 (1).
Section 12 repeals the that portion of
the affirmative defense for non-cardholders which allowed medical necessity
evidence to explain possession or cultivation outside of the statutory limits.
It does not repeal the overall defense, and leaves intact the choice of evils
defense and the ability to present medical necessity evidence.
The 2005 legislative amendments to the OMMA are
principally predicated on three premises. The first, articulated by Stormy Ray,
(a co-chief petitioner of the 1998 initiative) during a hearing before the
Senate Health and Human Services Committee is that the production of
therapeutic cannabis for patients is a charitable event. The second,
articulated repeatedly by Stormy Ray Foundation board member Jerry Wade is that
the patient owns the medicine. The third, explained in some detail on the SRF
website 6 is
the ability to produce a perpetual supply of therapeutic grade cannabis using
18 starts and six mature plants.
The fundamental flaw here is two-fold. First, although this system may work for Stormy and Jerry, it will not work for all patients. Most simply stated, it presupposes that codifying the ability to share medicine will make up for crop failure. Second, for many outdoor annual patients and their growers, the limits are inadequate to provide for a year’s supply. And lastly, those for whom more medical cannabis is medically necessary will be unable to defend against MCS/DCS/PCS charges, and will be left only to argue mitigation at sentencing.
On the other hand, many, many patients who are
currently outside the protection of the OMMA will be able to come within the protection.
The new limits are higher than any other state legislature has approved.
Codification of 24/7 access for verification and the restriction on the
redistribution of the patient verifying information will greatly help patients.
And the legislative mandate that convicted patients be restricted only as to
cultivation creates an additional argument why probationers should be allowed
to use this medicine while on probation.
* About the author: OCDLA
Sustaining member Leland Berger practices statewide from his home in NE
Portland.
The assistance of . . .
Attorneys Anthony L. Johnson and Brian L.
Michaels, and OMMA Advocates Dr. Rick Bayer (Co-chief Petitioner, OMMA (1998)),
Madeline Martinez (Executive Director, Oregon NORML), Alicia Williamson (Board
Member, Oregon NORML), John Sajo (Voter Power, Co-chief petitioner and
spokesman for Measure 33 (2004)), and Laird Funk (Volunteer Lobbyist)
. . . in the drafting of this article is gratefully
acknowledged. View original source at: http://ocdla.org/pdf/medicalmarijuana.pdf
1 Legislative History of SB 772 from Oregon
Legislature’s website:
SB 772 By Senator MORRISETTE -- Relating to medical
marijuana.
2-21(S) Introduction and first reading. Referred to President's
desk.
2-23 Referred to Human Services, then Ways and Means.
3-10 Public Hearing held.
4-28 Public Hearing held.
6-1 Work Session held.
8-5 In committee upon adjournment. Legislative History of
SB1085 from Oregon Legislature’s website: SB 1085 By COMMITTEE ON RULES (at the
request of Senator Bill Morrisette and Senator Jeff Kruse) -- Relating to
medical marijuana.
6-23(S) Introduction and first reading. Referred to
President's desk.
6-27 Referred to Rules, then Budget.
7-1 Public Hearing and Work Session held.
7-8 Recommendation: Do pass with amendments and be referred
to Budget by prior reference. (Printed A-Eng.)
7-14 Work Session held.
7-19 Recommendation: Do pass the A-Eng.
bill. Second reading.
7-20 Third reading. Carried by Kruse, Morrisette. Passed.
Ayes, 30. Carter, absent, granted unanimous consent to be recorded as voting
aye.
7-21(H) First reading. Referred to Speaker's desk. Referred
to State and Federal Affairs.
7-29 Public Hearing and Work Session held.
7-30 Recommendation: Do pass with amendments and be printed
B-Engrossed.
8-1 Rules suspended. Second reading.
8-2 Third reading. Carried by Flores. Passed. Ayes, 39;
Nays, 14--Ackerman, Avakian, Barnhart, Beyer, Buckley, Dingfelder, Hansen,
Holvey, Kropf, Merkley, Nolan, Rosenbaum, Shields, Wirth; Excused, 2--Barker,
Brown; Excused for Business of the House, 5--Farr, Greenlick, Kitts, March,
Thatcher. Vote explanation(s) filed by Tomei.
8-3(S) Rules suspended. Senate refused to concur in House
amendments. Ayes, 19; Nays, 11--Atkinson, Beyer, Ferrioli, Kruse, Morse,
Nelson, Starr, B., Starr, C., Westlund, Whitsett, Winters. 8-3(H)
Representatives Flores, Olson, Macpherson appointed House conferees.
8-4(S) Senators Prozanski, Atkinson, Morrisette, appointed
Senate conferees. Work Session held.
Conference Committee Recommendation: The Senate concur in House
amendments dated 07-30 and B-Engrossed bill be further amended and repassed.
(Amendments distributed.)
8-4(H) Conference Committee Report read in House.
8-4(S) Rules suspended. Senate adopted Conference Committee
Report and repassed bill. Ayes, 26;
Absent, 1--Whitsett; Attending Legislative Business, 3--Deckert, Devlin,
Westlund.
8-4(H) Rules suspended. House adopted Conference Committee
Report.
2 The term delivery is included in the definition
of “Medical use of marijuana” in §475.302(7) (post 1/1/06, 475.302(8)), in
explaining the scope of exception from state criminal law in §475.309(1), in
§475.316(1)(c) and (1)(d) in explaining what conduct takes one out of the
protection of the law (delivery to a noncardholder or delivery to anyone for
consideration) and in §475.342, explaining generally that what is not
authorized by the OMMA is not protected from criminal prosecution.
3 Gonzales v. Raich, 542 US ___,
125 S. Ct 2195, 162 LEd2d ___ (2005) (Holding that congress’ commerce clause
power authorizes the federal criminalization of the personal, intrastate
cultivation, non-commercial distribution and medical use of therapeutic
cannabis.)
4 In addition to Senators Morrisette and Kruse,
Senator Floyd Prozanski (D-Eugene) and Representative Steve March (D-Portland)
were closely involved in the drafting of this bill.
5 Although not central to her ruling in the case,
Senior Klamath County Judge Karla Knieps opined, in a Clackamas County case,
that as there is no statute or administrative rule authorizing a designated
primary caregiver to provide care to more than one patient, there was no
protection under the OMMA for those who did so. DHS raised a similar argument
in the defense of a declaratory judgment action.
6 www.stormyray.org/ommaway/patient_garden.htm
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