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Massachusetts Medical Marijuana: Uncertainty and Questions Follow Voter Approval

Voters overwhelmingly approved medical marijuana in November 2012, so why haven’t any treatment centers opened?

Blame a bewildering array of legal issues. The new law, Chapter 369 of the Acts of 2012 “An Act for the Humanitarian Medical Use of Marijuana,” presents a range of new legal questions for municipalities, prospective dispensaries, health care providers and patients.

Issues for Municipalities and Dispensaries

The Department of Public Health (“DPH”), charged by the state legislature with implementing the medical marijuana law, issued its regulations in May, but continues to develop application and licensing guidelines for nonprofit dispensaries. As municipalities grapple with how to update their by-laws and zoning codes, the Office of Massachusetts Attorney General Martha Coakley is allowing cities and towns to enact moratoriums on dispensaries.

Registered Marijuana Dispensaries (“RMD”) will be subject to a two phase application process. DPH is not yet accepting applications, but announced a proposed fee schedule for prospective applicants. According to the proposal, nonrefundable application fees would be $1,500 at the first stage and $30,000 at the second stage. Registered dispensaries then will pay an annual flat fee of $50,000 and $500 for each of its agents annually to cover operating costs for the state, such as DPH mandated inspections and training for employees.

The proposed fees are in line with other states with similar medical marijuana laws, Acting Commissioner Cheryl Bartlett said in a statement released by the department.

The $50,000 annual registration fee to DPH will be in addition to any other reasonable registration fees municipalities may charge. Ability to pay the Phase II application fee and annual registration fees will be part of the evaluation criteria in determining if a prospective dispensary will be allowed to proceed with the second phase of the registration application.
Phase II also requires applicants to provide detailed financial analyses, business plans and show demonstrated experience in healthcare and nonprofit business. During Phase II, applicants also will identify the community in which the dispensary will be hosted and the location of the building, if known.

Applicants also must show DPH evidence of local support for the dispensary, which may prove difficult for applicants in some areas if pre-emptive action by town councils to bar or limit dispensaries is a gauge.

Even though the question passed 54/46 in Wakefield, the town council enacted a ban on dispensaries soon after the election. The Attorney General, however, held “such a ban would frustrate the purpose” of the law and that if one town could ban dispensaries, “presumably all could do so.” As the law calls for at least one treatment center in each county, the prospect of a wholesale ban by many municipalities would create barriers to access to some patients. 

While Wakefield is appealing the Attorney General’s decision, the towns of Lynn, Melrose and Peabody, which also enacted bans on dispensaries, are re-evaluating their approach, according to a report from the Boston Globe on June 9.

In a separate decision, the Attorney General allowed a moratorium to block dispensaries in the Town of Burlington because it is temporary and limited in scope. The town enacted its moratorium before DPH issued its regulations in May, but it remains in effect through June 30, 2014, to give the town time to plan before considering changes to its zoning by-laws. Twelve towns, also including Wakefield, Lynnfield and Stoneham, have been granted moratoriums, according to the Globe report, while a total of 35 towns are awaiting approval from the Attorney General. 

Issues for Patients and Caregivers
The fee proposal also includes a $50 annual registration fee to each medical marijuana patient and an additional $100 annually for each patient who obtains a “hardship waiver” to grow his or her own plants to maintain a 60-day supply. DPH has determined a 60-day supply is a maximum of 10 ounces, unless otherwise determined by the patient’s doctor.

Any patient cultivating marijuana under a hardship waiver may do so only at one site, which must be enclosed and locked. The patient or the patient’s personal caregiver must ensure marijuana is not visible from the street or other public areas at a cultivation site, per DPH regulations, and DPH reserves right to search cultivation sites at any time. These requirements are in addition to any other reasonable codes municipalities adopt to regulate cultivation sites.

The proposed schedule does not call for registration fees for personal caregivers, who also must be registered. Personal caregivers cannot be compensated other than to be reimbursed for reasonable expenses. They would assist patients in activities such as transportation to a dispensary, obtaining and transporting marijuana from a dispensary to a patient, growing marijuana for patients with a hardship waiver and helping prepare marijuana for consumption by the patient. Personal caregivers are prohibited from using marijuana, unless they also are certified, registered patients, and are barred from selling marijuana.

DPH will take public comment on the fee schedule before the board votes on the final numbers later this summer.