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HomeMy WebLinkAboutMinutes of Meeting - Medical Marijuana Workshop - October 1, 2014 MINUTES OF MEETING DANIA BEACH CITY COMMISSION MEDICAL MARIJUANA WORKSHOP WEDNESDAY, OCTOBER 1, 2014 — 5:00 P.M. 1. Call to Order/Roll Call Mayor Duke called the meeting to order at 5:00 p.m. Present: Mayor: Walter B. Duke, III Vice-Mayor: Chickie Brandimarte Commissioners: Bobbie H. Grace Albert C. Jones City Manager: Robert Baldwin City Attorney: Thomas J. Ansbro Deputy City Clerk: Tom Schneider 2. Presentation- Medical Marijuana- Weiss Serota Helfman 2.1 Overview of the Constitutional Amendment and State legislation City Attorney Ansbro gave a brief background of this issue, and noted the importance to the City of getting ahead of the curve by implementing regulatory and zoning ordinances prior to the likely approval of the constitutional amendment. Kathryn Mehaffey, Weiss Serota Helfman, Special Counsel, explained the three concepts at play related to medical marijuana: a pill form currently available, existing state law, and the constitutional amendment. She noted tonight's goal is to get a feel for where the Commission would like to see Dania Beach move on this and what the options are. She gave a Powerpoint presentation, which is attached to and incorporated into these minutes. Commissioner Grace said she is concerned because of the past problems with pill mills and asked how Broward County as a whole, and especially Dania Beach, are going to put in safety nets to have regulation and guidelines for the doctors and patients. With respect to the numerous grow houses that exist, she questioned how we will make sure we keep our inner cities safe. Attorney Mehaffey explained that the proposed rules are extremely detailed and specific in terms of licensing requirements for the facilities and physicians. The tracking system is built into the legislation and there are standard enforcement mechanisms that would be at play, as opposed to pill mills, which had no regulations. Commissioner Jones commented federal law is in conflict with state law, and the amendment, if approved, will still be in conflict with federal law. He questioned whether there would be any other debilitating medical conditions added to those provided by the constitutional amendment, and asked who determines compassionate use. Attorney Mehaffey explained the constitutional amendment provision for use under the Debilitating Medical Condition definition versus the compassionate use under state legislation, which strictly limits illnesses that qualify for medical marijuana. Vice-Mayor Brandimarte commented on the state law requirement of being a permanent resident of Florida and the difficulties posed by the fact there are a lot of snowbirds coming across state lines. She questioned if non-residents would be able to get medical marijuana and how this would be policed. Attorney Mehaffey responded this would be a Department of Health issue to resolve because they will be coordinating with the doctors and issuing guidance. Vice-Mayor Brandimarte questioned the qualifying illnesses set forth in the amendment and in state law, and felt that with 23 states allowing medical marijuana, this is only step one to it becoming recreational. 2.2 Local government options Attorney Mehaffey continued with the Powerpoint presentation, which focused on land use requirements and business regulations that can be put into place. She noted the legal risk to the City is less with implementing regulations than with an outright prohibition. 3. Commission Discussion City Attorney Ansbro said City staff and outside counsel have met and drafted ordinances regulating medical marijuana for the Commission to consider on first reading at their October 14t' meeting, if they are in favor of doing so. He felt the regulations should be as strong as the Police Chief, Planning staff, and outside counsel recommend, in case of any future preemption by the State. Commissioner Jones confirmed that if the Commission says no, as opposed to implementing regulations, the City is at a higher risk of being sued. City Manager Baldwin asked what would prevent someone from suing the City for failure to enforce federal law. Attorney Mehaffey responded a Michigan case pointed out that local governments are not responsible for enforcing federal law. She noted that from what they have seen, there is not much liability, if at all, for the issuing of a permit; periodic enforcement actions by the DEA in California are uniformly against the facility,not against the local government. Minutes of Medical Marijuana Workshop 2 Dania Beach City Commission Wednesday,October 1,2014—5:00 p.m. Commissioner Grace asked whether, as we try to implement safeguards for Dania Beach prior to the November election, if we are still setting ourselves up for a lawsuit if we do or do not do something now. Attorney Mehaffey said they are recommending the Commission make location requirements, recommendations, and very strict operational requirements, which would be accomplished by the ordinances that will be brought to the Commission. Commissioner Grace asked if the local police department would have the option of regularly checking on the facilities. Attorney Mehaffey responded they would be treated like any other business, so they would be subject to complaints, police drivebys, and inspections, in addition to the State inspection requirements. She explained how this would not be a walk-in shopping experience type of facility. Vice-Mayor Brandimarte commented her understanding is that it is better we have input on this than being mute. City Attorney Ansbro reiterated we are up against a deadline and the ordinances need to come before the Commission on October 14 for first reading, to the Planning & Zoning Board on October 15, and to the Commission on October 28 for second reading. Commissioner Jones said we can put some criteria in place and we should. He asked if the City could monitor who is actually allowed in the facilities. Attorney Mehaffey responded in the negative, noting patients will be protected under the public records act. The consensus of the Commission was for staff to proceed with bringing ordinances before them. Charlotte Saboda, 2905 Lake Shore Drive, asked for clarification about the five facilities mentioned earlier and requested that the Commission protect the citizens. City Attorney Ansbro explained there would be five growers allowed throughout the state pursuant to existing state law. He noted they have not been selected yet and there are likely no growers who would be eligible within Dania Beach city limits. Leslie Kevles, 3011 W Marina Drive, Estates of Ft. Lauderdale, asked if the police would protect these businesses, and why a patient would not go to a pharmacy, instead of a retail outlet, if they received a prescription from a physician. City Attorney Ansbro clarified that BSO would not have staff at the property protecting personnel or customers. Minutes of Medical Marijuana Workshop 3 Dania Beach City Commission Wednesday,October 1,2014—5:00 p.m. Attorney Mehaffey explained that the physician's certification issued under the statute and as proposed under the constitutional amendment is not a prescription; it is a certification which allows the use of medical marijuana,to be provided by a specific place. Mayor Duke noted the three upcoming public hearings on this issue where the public may speak. 4. Adjournment Mayor Duke adjourned the meeting at 5:55 p.m. ATTEST: CITY OF D EACH LOUISE STILSON, CMC �,5 F1 WALTE B. DUKE, III CITY CLERK �Qo�P _ o�ry MAYOR Approved: October 14, 2014 Minutes of Medical Marijuana Workshop 4 Dania Beach City Commission Wednesday,October 1,2014—5:00 p.m. A r t fo an J , , 0 e.� What are our o tior�s. ' a h Weiss Serota Helfman Pastoriza Cole & Boniske, P. L. Constitutional Amendment TITLE: Use of Marijuana for Certain Medical Conditions SUMMARY: Allows the medical use of marijuana for individuals with debilitating diseases. Allows caregivers to assist patients' medical use of marijuana . The Department of Health is responsible for registering and regulating centers that produce and distribute marijuana for medical purposes and issuing identification cards to patients and caregivers. Applies only to Florida law. Does not authorize violations of federal law or any non-medical use, possession or production of marijuana . Current polling projects that the Amendment will pass. Constitutional Amendment How will it work? Patient required to obtain a physician certification from a physician licensed in the state of Florida Certifying physician must: conduct a physical exam of the patient complete a full assessment of the patient's medical history determine that the person has a "Debilitating Medical Condition;" and find that the "potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient" Constitutional Amendment "Debilitating Medical Condition"" cancer, glaucoma, positive HIV, AIDS, hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, multiple sclerosis or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient." Constitutional Amendment With a physician's certification, a patient may apply for a patient identification card, which makes them a "qualified patient" A patient's personal caregiver may obtain a personal caregiver identification card . A Qualified Patient or a personal caregiver with an identification card, may obtain medical marijuana for the Qualifying Patient's use . Medical marijuana will be obtained from "Medical Marijuana Treatment Centers," ('Treatment Centers"). Constitutional Amendment " Medical Marijuana Treatment Center" an entity that "acquires, cultivates, possesses, processes (including development or related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educations materials to qualifying patients or their personal caregivers." Constitutional Amendment The Amendment allows use of any kind of marijuana which can be consumed in any form The Amendment does not protect anyone from prosecution under Federal law Implemented by the Department of Health (Florida Legislature is specifically not preempted from regulating, but is not required to) Constitutional Amendment The Department of Health must develop regulations including : procedures for the issuance and renewal of qualifying patient and caregiver identification cards procedures for the registration of Medical Marijuana Treatment Centers; and regulations that define the amount of marijuana that could reasonably be presumed to be an adequate supply for a qualifying patients' medical use . Constitutional Amendment Within g months of the effective date of the Amendment, the Department must begin : Issuing qualifying patient and personal caregiver identification cards registering Medical Marijuana Treatment Centers If the state fails to implement, a patient with a physician certification is still protected and allowed to use medical marijuana; BUT The provisions for Medical Marijuana Treatment Centers are not self-executing, so there is nowhere for patients to "legally" procure Approved State Legislation 383. . 986 Florida Statutes SB 3.030 (codified in § 381. 986 Florida Statutes) — "Compassionate Medical Cannabis Act of 2014/ Compassionate Use of Low-THC Cannabis" — aka "Charlotte's Web" Low THC Cannabis ("Charlottes's Web" is just one brand/blend) "a plant of the genus Cannabis, the dried flowers of which contain o.8 percent or less of tetra hydrocannabinol and more than Zo percent of cannabidiol weight for weight; the seeds thereof; the resin extracted from any part of such plant; or any compound, manufacture, salt, derivative, mixture, or preparation of such plant or its seeds or resin that is dispensed only from a dispensing organization." No smoking Limited qualifying illnesses - cancer or a physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms The patient must be a permanent resident of Florida Existing State Law Ordering physician must: find that no other satisfactory treatment options exist determine that the risks of using cannabis are reasonable in light of the potential benefit for that patient register as the orderer of the marijuana for the patient maintain a patient treatment plan and submit it to the University of Florida's College of Pharmacy for research (patient must agree to submission in order to qualify) Existing State Law Up to 5 dispensing organizations A dispensing organization must: Be responsible for all stages — cultivation to dispensing Be a registered grow facility licensed for the cultivation of more than 400,000 plants Must be operated by a state licensed nurseryman Have been operated as a registered nursery in Florida for at least 30 continuous years. Current list from the Department of Agriculture — 39 eligible nurseries Existing State Law Implemented by the Department of Health who must: develop rules — Rule draft currently under an Administrative Law Challenge develop a compassionate use registry for the registry of physicians and patients - complete authorize and regulate the dispensing organizations administer the program under the Deputy State Health Officer. The Bill also encourages state university participation in Federal Drug Administration-approved research programs, and creates a grant program for eligible university research programs. Rulemal<ing must be complete, and implementation must begin by January i, 201.5. Constitution vs . Existing State Law Existing state law provides a much narrower framework for growing, selling, and using medical marijuana than the Amendment Existing state law limits the type of marijuana that can be grown and who may grow it, prohibits smoking as a method of consumption, integrates the use into research studies, and greatly limits the qualifying conditions for use of the marijuana Existing state law is not broad enough to fully implement the Amendment BUT, the distribution system under existing state law may not be in conflict with the Amendment Legislative changes would be required in order to eliminate conflicts related to the method of delivery (e .g ., to include smoking) and qualifying illnesses. State Legislation SB i7oo — Public Records Exemption Provides a public records exception to protect the release of documents related to the use of medical marijuana Recent case law indicates that the provisions are not likely to protect against disclosure to Federal agencies, such as the Drug Enforcement Agency U. S. v. Michigan Dept, of Comm. Heath, WL 2412602 (W. D. Mich.) unreported Interaction with Federal Law The Federal Controlled Substances Act (CSA) prohibits the production, distribution and use of marijuana, for medical or recreational purposes CSA and Federal Government still have regulatory and enforcement standing throughout the Country — regardless of State regulations allowing the use of marijuana All organizations and states point out that everyone who uses, produces, or distributes marijuana — whether for medical or recreational use — is subject to federal law Interaction with Federal Law No state statute or law protects against federal prosecution . Current federal administrative policy decisions indicate a possible reluctance to pursue active enforcement against those entities which at least comply with state laws May turn on the policy initiatives of the local United States Attorney Other Experiences State Year P 23 States plus Washington D.C. � Alaska 1998 2 Arizona 2010 allow • . marijuana . • 3. California 1996 a. Colorado 2000 Washington •and Colorado 5. Connecticut 2012 6. DG 2010 allow ' . • 7. Delaware 2011 well s. Hawaii 2000 9. Illinois 2013 10. Maine 199 0 Across `S1. Maryland 2014 • • • . • 12. Massachusetts 2012 experiences have allshown • e 13. Michigan 2008 1�#. Minnesota 2014 thing, preparation 15. Montana 2004 1s. Nevada 200t 17. New Hampshire 2013 • e whoregulate (or prohibit) 18. New Jersey 2010 19. New Mexico 2007 early . • strictly, suffer the least. 20. New York 2014 21. Oregon 1998 22. Rhode Island 2006 23. Vermont 2004 24. Washington 1998 Revenue i a Claims of significant revenue State of Colorado — January 2014 $2,000,000 in recreational marijuana taxes (sales tax, extra sales tax, 15% excise tax) $1,5oo,000 in medical marijuana taxes (salestax, lesserextra salestax ) Local Governments in Colorado can leverage local sales taxes Florida municipalities can not impose a local sales tax. All forms of taxation are preempted to the State, except as local taxation may be authorized by general law. Article VII, section g(a), Florida Constitution (1.968), provides: . . . municipalities shall, and special districts may, be authorized by law to levy ad valorem taxes and may be authorized by general law to levy other taxes, for their respective purposes. . . ." Getting Ready - Let's Regulate Regulatory Options and Considerations Land use requirements zoning district(s) spacing restrictions Siting size of parcel attached or freestanding Procedures Special exception permitting annual recertification — L Regulate Getting Readyet s Business regulations Annual Medical Marijuana Permit requirements, Real property requirements Hours of operation Applicant, owner and employee level z background screening requirements Odor mitigation Signage Increased maintenance of the business premises and surrounding areas v Getting Ready — Let's Regulate Security Operations plan Video Display and storage security planning requirements Cash storage and protection planning requirements Alarm system Implementation of Police Crime Prevention Through Environmental Design_Review (CPTED) standards Fees Application licensing Getting Ready Getting Ready Getting Ready - Saying No Some states, either by statute or directly in their constitutional enactments, specifically allow local governments the ability to regulate and prohibit. Florida's Constitutional Amendment is silent Florida Statutes are silent The current proposed rules from the Department of Health are also silent Getting Ready The general rule in Florida is that when state law is silent, Florida municipalities can regulate in any manner not inconsistent with state law The general rule is also that municipalities cannot do anything that is inconsistent with federal law, so the Amendment and the legislation create a murky legal situation Federal Supremacy supports local government conformance to Federal Law (Controlled Substances Act) — thus prohibition BUT reliance on Federal Supremacy isn't a guarantee Ter Beek v. City of Wyoming, (2014 WL 48661.2 (Mich.)) Implementation Time Frame June, 2014 - Medical marijuana legalized by Florida Statute (F.S. 381-986) November 4, 2014 — Public vote on legalization of broader types and uses of marijuana January 1, 2015 — Department of Health begins implementation of Florida Statutes — limited type and use of medical marijuana If the administrative challenge to the Department's implementing rules is not resolved, the implementation of the state law will be delayed, though consumption by qualified patients will still be permitted January 6, 2015 — Effective date of Constitutional Amendment legalizing broader types and uses of medical marijuana May-June, 2015 - If the Amendment is approved, the Legislature is likely to enact additional legislation July 6, 2015 — Department of Health rule making related to the Amendment must be complete October 6, 2015 — Department of Health must begin issuing qualifying patient and personal caregiver identification cards and registering Treatment Centers �m. for �t w�v iarijuana Is Florida Ready? Questions . r Kathryn M . Mehaffey, Esq . Weiss Serota Helf man Pastoriza Cole & Boniske, P. L.