# N.j. S119 "compassionate Use Medical Marijuina Act"PART 1 OF 3



## NinetySeven (Sep 17, 2009)

ASSEMBLY COMMITTEE SUBSTITUTE FOR

ASSEMBLY, No. 804


STATE OF NEW JERSEY

213th LEGISLATURE

  ADOPTED JUNE 4, 2009

Sponsored by:

Assemblyman REED GUSCIORA

District 15 (Mercer)

Assemblyman MICHAEL PATRICK CARROLL

District 25 (Morris)

Assemblywoman JOAN M. VOSS

District 38 (Bergen)



Co-Sponsored by:

Assemblywoman Vainieri Huttle, Assemblyman Giblin, Assemblywomen Wagner, Oliver, Assemblyman Prieto, Assemblywoman Tucker, Assemblyman Johnson and Assemblywoman Jasey








SYNOPSIS

     New Jersey Compassionate Use Medical Marijuana Act 



CURRENT VERSION OF TEXT 

     Substitute as adopted by the Assembly Health and Senior Services Committee.





An Act concerning the medical use of marijuana, and revising parts of statutory law.



     Be It Enacted by the Senate and General Assembly of the State of New Jersey:



     1.  (New section) This act shall be known and may be cited as the New Jersey Compassionate Use Medical Marijuana Act.



     2. (New section) The Legislature finds and declares that:

     a.  Modern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions, as found by the National Academy of Sciences Institute of Medicine in March 1999;

     b.  According to the U.S. Sentencing Commission and the Federal Bureau of Investigation, 99 out of every 100 marijuana arrests in the country are made under state law, rather than under federal law. Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marijuana;

     c.  Although federal law currently prohibits the use of marijuana, the laws of Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington  permit the use of marijuana for medical purposes, and in Arizona doctors are permitted to prescribe marijuana. New Jersey joins this effort for the health and welfare of its citizens;

     d.  States are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law; therefore, compliance with this act does not put the State of New Jersey in violation of federal law; and 

     e.  Compassion dictates that a distinction be made between medical and non-medical uses of marijuana. Hence, the purpose of this act is to protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions, as well as their physicians and those who are authorized to produce marijuana for medical purposes.



     3.  (New section) As used in this act:

     Bona fide physician-patient relationship means a relationship in which the physician has the ongoing primary responsibility for the assessment, care and treatment of a patients debilitating medical condition.

     Commissioner means the Commissioner of Health and Senior Services.

     Debilitating medical condition means:

     (1) seizure disorder, including epilepsy, intractable skeletal muscular spasticity or glaucoma that is resistant to conventional medical therapy;

     (2) positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or cancer that results in severe or chronic pain, severe nausea or vomiting, cachexia, or wasting syndrome; 

     (3) amyotrophic lateral sclerosis, multiple sclerosis, terminal cancer; or

     (4) any other medical condition or its treatment that is approved by the department by regulation.

     Department means the Department of Health and Senior Services.

     Marijuana has the meaning given in section 2 of the New Jersey Controlled Dangerous Substances Act, P.L.1970, c.226 (C.24:21-2).

     Medical marijuana alternative treatment center or alternative treatment center means a nonprofit organization approved by the department to perform activities necessary to provide registered qualifying patients with usable marijuana and related paraphernalia in accordance with the provisions of this act.  This term shall include the organizations officers, directors, board members, and employees.

     Medical use of marijuana means the acquisition, possession, or use of marijuana or paraphernalia by a registered qualifying patient as authorized by this act.

     Minor means a person who is under 18 years of age and who has not been married or previously declared by a court or an administrative agency to be emancipated.

     Paraphernalia has the meaning given in N.J.S.2C:36-1.

     Physician means a person licensed to practice medicine and surgery pursuant to Title 45 of the Revised Statutes with whom the patient has a bona fide physician-patient relationship and who is the physician responsible for the ongoing primary treatment of a patients debilitating medical condition.

     Qualifying patient or patient means a person who has been provided with a written certification by a physician pursuant to a bona fide physician-patient relationship.

     Registry identification card means a document issued by the department that identifies a person as a registered qualifying patient.

     Usable marijuana means the dried leaves and flowers of marijuana, and any mixture or preparation thereof, and does not include the seeds, stems, stalks or roots of the plant.

     Written certification means  a statement signed by a physician with whom  a qualifying patient has a bona fide physician-patient relationship, which attests to the physicians authorization for the patient to apply for registration for the medical use of marijuana.



     4.  (New section) a. The department shall establish a registry of qualifying patients and shall issue a registry identification card that shall be valid for one year to a qualifying patient who submits the following, in accordance with regulations adopted by the department:        

     (1) a written certification that meets the requirements of section 5 of P.L.   , c.    ( C.    )(pending before the Legislature as this bill);

     (2) an application or renewal fee, which may be based on a sliding scale as determined by the commissioner;

     (3) the name, address and date of birth of the patient;

     (4) the name, address and telephone number of the patients physician.

     b.  Before issuing a registry identification card, the department shall verify the information contained in the application or renewal form submitted pursuant to this section.  The department shall approve or deny an application or renewal within 30 days of receipt of the application or renewal, and shall issue a registry identification card within five days of approving the application or renewal. The department may deny an application or renewal only if the applicant fails to provide the information required pursuant to this section, or if the department determines that the information was incorrect or falsified or does not meet the requirements of this act.  Denial of an application shall be a final agency decision, subject to review by the Superior Court, Appellate Division.

     c.  A registry identification card shall contain the following information:

     (1) the name, address and date of birth of the patient;

     (2) the date of expiration date of the registry identification card;

     (3) photo identification of the cardholder; and

     (4) such other information that the department may specify by regulation.

     A patient who has been issued a registry identification card shall notify the department of any change in the patients name, address, or physician or change in status of the patients debilitating medical condition, within 10 days of such change, or the registry identification card shall be deemed null and void.

     d.  The department shall maintain a confidential list of the persons to whom it has issued registry identification cards.  Individual names and other identifying information on the list, and information contained in any application form, or accompanying or supporting document shall be confidential, and shall not be considered a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.), and shall not be disclosed except to:

     (1) authorized employees of the department and the Division of Consumer Affairs in the Department of Law and Public Safety as necessary to perform official duties of the department and the division, as applicable; and 

     (2) authorized employees of State or local law enforcement agencies, only as necessary to verify that a person who is engaged in the suspected or alleged medical use of marijuana is lawfully in possession of a registry identification card.

     e.  Applying for or receiving a registry card does not constitute a waiver of the qualifying patients patient-physician privilege.



     5.  (New section) a. Medical use of marijuana by a qualifying patient may be authorized pursuant to a written certification which meets the requirements of this act.  In order to provide such a written certification, a physician shall be licensed and in good standing to practice in the State and be board-certified, if available, in the specialty appropriate for the assessment, care, and ongoing primary treatment of the debilitating medical condition for which the medical use of marijuana is being considered.


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## NinetySeven (Sep 17, 2009)

The written certification shall attest that the above criteria have been met.
     b.  The provisions of subsection a. of this section shall not apply to a qualifying patient who is a minor unless the custodial parent, guardian, or person who has legal custody of the minor, consents in writing that the minor patient has that persons permission for the medical use of marijuana and that the person will control the acquisition and possession of the medical marijuana and any related paraphernalia from the alternative treatment center.

     6.  (New section) a. The provisions of N.J.S.2C:35-18 shall apply to any qualifying patient, alternative treatment center, physician, or any other person acting in accordance with the provisions of this act.
     b.  A qualifying patient, alternative treatment center, physician, or any other person acting in accordance with the provisions of this act shall not be subject to any civil or administrative penalty, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, related to the medical use of marijuana as authorized under this act.
      c.  Possession of, or application for, a registry identification card shall not alone constitute probable cause to search the person or the property of the person possessing or applying for the registry identification card, or otherwise subject the person or his property to inspection by any governmental agency.
     d.  The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of marijuana determined to exist by the department, shall not apply if a qualifying patient has in his possession a registry identification card and no more than the maximum amount of usable marijuana that may be obtained in accordance with section 10 of P.L.  , c.  (C.   )(pending before the Legislature as this bill).
     e.  No person shall be subject to arrest or prosecution for constructive possession, conspiracy or any other offense for simply being in the presence or vicinity of the medical use of marijuana as authorized under this act.
     f.  No custodial parent, guardian, or person who has legal custody of a qualifying patient who is a minor shall be subject to arrest or prosecution for constructive possession, conspiracy or any other offense for assisting the minor in the medical use of marijuana as authorized under this act.

     7.  (New section)  a.  The department shall accept applications from nonprofit entities to operate as alternative treatment centers, and may charge a reasonable fee for the issuance of a permit under this section. The department shall seek to ensure the availability of alternative treatment centers throughout the State, including, to the maximum extent practicable, at least two each in the northern, central, and southern regions of the State. An alternative treatment center shall be authorized to acquire marijuana seeds or seedlings and paraphernalia, possess, cultivate, plant, grow, harvest, process, display, manufacture, deliver, transfer, transport, distribute, supply, sell, or dispense marijuana, or related supplies to registered qualifying patients who are registered with the department pursuant to section 4 of P.L.    , c.   (C.    )(pending before the Legislature as this bill).  Applicants for authorization as an alternative treatment center shall be subject to all applicable State laws governing nonprofit entities, but need not be recognized as a 50l(c)(3) organization by the federal Internal Revenue Service.
     b.  The department shall require that an applicant provide such information as the department determines to be necessary pursuant to regulations adopted pursuant to this act.
     c.  A person who has been convicted of possession or sale of a controlled dangerous substance shall not be issued a permit to operate as a alternative treatment center or be a director, officer, or employee of an alternative treatment center, unless such conviction was for a violation of federal law relating to possession or sale of marijuana for conduct that is authorized under this act.
     d.  Each applicant and each director, officer and employee of an alternative treatment center shall be required to undergo a criminal history record background check from the Division of State Police in the Department of Law and Public Safety and the Federal Bureau of Investigation.  Each applicant shall submit to the department the name, address, fingerprints and written consent for a criminal history record background check to be performed for the applicant and any director, officer, and employee of the alternative treatment center.  The applicant shall bear the cost for the criminal history record background check, including all costs of administering and processing the check.
     e.  The department shall issue a permit to a person to operate as an alternative treatment center if the department finds that issuing such a permit would be consistent with the purposes of this act and the requirements of this section are met and the department has verified the information contained in the application. The department shall approve or deny an application within 60 days after receipt of a completed application. The denial of an application shall be considered a final agency decision, subject to review by the Appellate Division of the Superior Court.  The department may suspend or revoke a permit to operate as an alternative treatment center for cause, which shall be subject to review by the Appellate Division of the Superior Court.
     f.  A person who has been issued a permit pursuant to this section shall display the permit at the premises of the alternative treatment center at all times when marijuana is being produced, or dispensed to a registered qualifying patient.
     g.  An alternative treatment center shall report any change in information to the department not later than 10 days after such change, or the permit shall be deemed null and void.
     h.  An alternative treatment center may charge a registered qualifying patient for the reasonable costs associated with the production and distribution of marijuana for the cardholder.
     i.  The commissioner shall adopt regulations to:
     (1) provide for the use by a registered qualifying patient of a designated individual in an emergency situation to transport marijuana to the patient who is otherwise unable to obtain marijuana from an alternative treatment center; and
     (2) require such written documentation of each delivery of marijuana to, and pickup of marijuana for, a registered qualifying patient, including the date and amount dispensed, to be maintained in the records of the alternative treatment center, as the commissioner determines necessary to ensure effective documentation of the operations of each alternative treatment center.

     8.  (New section) The provisions of this act shall not be construed to permit a person to:
     a.  operate, navigate, or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana; or 
     b.  smoke marijuana in a school bus or other form of public transportation, in a private vehicle unless the vehicle is not in operation, on any school grounds, in any correctional facility, at any public park or beach, at any recreation center, or in any place where smoking is prohibited pursuant to N.J.S.2C:33-13. 
     A person who commits an act as provided in this section shall be subject to such penalties as are provided by law.

     9. (New section) A person who knowingly sells, offers, or exposes for sale, or otherwise transfers, or possesses with the intent to sell, offer or expose for sale or transfer a document that falsely purports to be a registration card issued pursuant to this act, or a registration card issued pursuant to this act that has been altered, is guilty of a crime of the third degree.  A person who knowingly presents to a law enforcement officer a document that falsely purports to be registration card issued pursuant to this act, or a registration card that has been issued pursuant to this act that has been altered, is guilty of a crime of the fourth degree.  The provisions of this section are intended to supplement current law and shall not limit prosecution or conviction for any other offense.

     10. (New section) a.  A physician shall provide written instructions for a registered patient to present to an alternative treatment center, at the time of pickup or delivery, concerning the total amount of usable marijuana that a patient may be dispensed, in weight, in a 30-day period, which amount shall not exceed one ounce.  If no amount is noted, the maximum amount that may be dispensed at one time is one ounce.


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## NinetySeven (Sep 17, 2009)

b.  A physician may issue multiple written instructions at one time authorizing the patient to receive a total of up to a 90-day supply, provided that the following conditions are met:
     (1) Each separate set of instructions shall be issued for a legitimate medical purpose by the physician, as provided in this act;
     (2) The physician shall provide written instructions for each dispensation, other than the first dispensation if it is to be filled immediately, indicating the earliest date on which a center may dispense the marijuana; and
     (3)  The physician has determined that providing the patient with multiple instructions in this manner does not create an undue risk of diversion or abuse.
     c.  A registered qualifying patient shall present the patients registry identification card and these written instructions at the time of pickup or delivery, and the alternative treatment center shall verify and log the documentation presented.  The dispensation of marijuana pursuant to any written instructions shall occur within one month of the date that the instructions were written or the instructions are void.
     d.  A patient may be registered at only one alternative treatment center at any time.

     11. (New section) a. A physician who provides written certification or written instruction for the medical use of marijuana to a qualifying patient pursuant to P.L.  , c.  (C. )(pending before the Legislature as this bill) and any alternative treatment center shall furnish to the Director of the Division of Consumer Affairs in the Department of Law and Public Safety such information, in such a format and at such intervals, as the director shall prescribe by regulation, for inclusion in a system established to monitor the dispensation of marijuana in this State for medical use as authorized by the provisions of P.L.    , c.    ( C.    )(pending before the Legislature as this bill), which system shall serve the same purpose as the electronic system for monitoring controlled dangerous substances established pursuant to section 25 of P.L.2007, c.244 (C.45:1-45).
     b.  The Director of the Division of Consumer Affairs, pursuant to the Administrative Procedure Act, P.L.1968, c.410 (C.52:14B-1 et seq.), in consultation with the Commissioner of Health and Senior Services, shall adopt rules and regulations to effectuate the purposes of subsection a. of this section. 
     c.  Notwithstanding any provision of P.L.1968, c.410 to the contrary, the Director of the Division of Consumer Affairs shall adopt, immediately upon filing with the Office of Administrative Law and no later than the 90th day after the effective date of this act, such regulations as the director deems necessary to implement the provisions of subsection a. of this section. Regulations adopted pursuant to this subsection shall be effective until the adoption of rules and regulations pursuant to subsection b. of this section and may be amended, adopted, or readopted by the director in accordance with the requirements of P.L.1968, c.410.

     12.  N.J.S.2C:35-18 is amended to read as follows:
     2C:35-18. Exemption; Burden of Proof. a. If conduct is authorized by the provisions of P.L. 1970, c. 226 (C. 24:21-1 et seq.) or P.L.    , c.    (C.    )(pending before the Legislature as this bill), that authorization shall, subject to the provisions of this section, constitute an exemption from criminal liability under this chapter or chapter 36, and the absence of such authorization shall not be construed to be an element of any offense in this chapter or chapter 36. It is an affirmative defense to any criminal action arising under this chapter or chapter 36 that the defendant is the authorized holder of an appropriate registration, permit or order form or is otherwise exempted or excepted from criminal liability by virtue of any provision of P.L. 1970, c. 226 (C. 24:21-1 et seq.) or P.L.    , c.    (C.    )(pending before the Legislature as this bill). The affirmative defense established herein shall be proved by the defendant by a preponderance of the evidence. It shall not be necessary for the State to negate any exemption set forth in this act or in any provision of Title 24 of the Revised Statutes in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this act. 
     b. No liability shall be imposed by virtue of this chapter or chapter 36 upon any duly authorized State officer, engaged in the enforcement of any law or municipal ordinance relating to controlled dangerous substances or controlled substance analogs. (cf: P.L.1988, c.44, s.8)

     13.  (New section) a.  The commissioner may accept from any governmental department or agency, public or private body or any other source grants or contributions to be used in carrying out the purposes of this act.
     b.  All fees collected pursuant to this act, including those from qualifying patients and alternative treatment centers initial, modification and renewal applications, shall be used to offset the cost of the departments administration of the provisions of this act.

     14. (New section)  a.  The commissioner shall report to the Governor, and to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1):
     (1)  no later than one year after the effective date of this act, on the actions taken to implement the provisions of this act; and
     (2)  annually thereafter on the number of applications for registry identification cards, the number of qualifying patients registered, the nature of the debilitating medical conditions of the patients, the number of registry identification cards revoked, and the number of physicians providing written certifications for patients.
     b.  The reports shall not contain any identifying information of patients or physicians.

     15.  (New section) a.  The Department of Health and Senior Services is authorized to exchange fingerprint data with, and receive information from, the Division of State Police in the Department of Law and Public Safety and the Federal Bureau of Investigation for use in reviewing applications for a permit to operate as, or to be a director, officer or employee of, an alternative treatment center pursuant to section 7 of P.L.  , c.  (C.  )(pending before the Legislature as this bill).
     b.  The Division of State Police shall promptly notify the Department of Health and Senior Services in the event an applicant for a permit to operate as, or to be a director, officer or employee of, an alternative treatment center who was the subject of a criminal history record background check conducted pursuant to subsection a. of this section, is convicted of a crime involving possession or sale of a controlled dangerous substance.

     16. (New section) Nothing in this act shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana, or an employer to accommodate the medical use of marijuana in any workplace.

     17.  (New section) In addition to any immunity or defense provided by law, the State and any employee or agent of the State shall not be held liable for any actions taken in accordance with this act or for any deleterious outcomes from the medical use of marijuana by any registered qualifying patient.

     18.  (New section) a. Pursuant to the Administrative Procedure Act, P.L.1968, c.410 (C.52:14B-1 et seq.), the commissioner shall promulgate rules and regulations to effectuate the purposes of this act, in consultation with the Department of Law and Public Safety. 
     The regulations shall establish: the form, process and fee schedule for initial, modification and renewal applications for qualifying patients and alternative treatment centers that are complete and accurate; the considerations to be used to determine whether to approve an application for an alternative treatment center, including its operational procedures; the form and manner in which the department will function, including the consideration and approval of petitions to add new debilitating medical conditions to those included in this act; validating written certifications and other information contained in applications received from prospective and current qualifying patients and alternative treatment centers; protections for ensuring the confidentiality of the information submitted by prospective and current qualifying patients and alternative treatment centers, and that contained in the registry; monitoring, oversight and investigation of physicians who issue written certifications, with authority to refer physicians in violation of provisions of this act to the State Board of Medical Examiners; procedures for the revocation or suspension of a qualifying patients registry identification card; monitoring, oversight and investigation of all activities performed by an alternative treatment center; the methods for testing, authenticating and guaranteeing the quality, safety and quantity of marijuana sold to registered qualifying patients; which strains of marijuana shall be sold by an alternative treatment center; procedures to guarantee the quality and safety of paraphernalia sold to registered qualifying patients; standards to ensure adequate security of all facilities, including production and retail locations, and security of all delivery methods to registered qualifying patients; and the authority and process for the department to assume control of an alternative treatment centers facilities, equipment, inventory and other items necessary for the department to serve as an alternative treatment center in the event an alternative treatment center is no longer able to operate or meet its requirements.


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