Post by Del Snavely on Dec 14, 2009 0:28:10 GMT -6
I wrote this with much help from other States medical marijuana laws.
The Compassionate North Dakotans Medical Marijuana Act:
Be it enacted by the people of the state of North Dakota:
Section 1. Title. Compassionate North Dakotan’s Medical Marijuana Act.
Sections 1 through 12 of this act shall be known as the Compassionate North Dakotan’s Medical Marijuana Act.
Section 2. Findings.
(a) Modern medical research has discovered beneficial uses for marijuana
in treating or alleviating the pain, nausea, and other symptoms
associated with a variety of debilitating medical conditions, as found by
the National Academy of Sciences’ Institute of Medicine in March 1999.
(b) Subsequent studies since the 1999 National Academy of Sciences’
Institute of Medicine report continue to show the therapeutic value of
marijuana in treating a wide array of debilitating medical conditions,
including increasing the chances of patients continuing their treatments for
HIV/AIDS and Hepatitis C.
(c) According to the U.S. Sentencing Commission and the Federal Bureau
of Investigation, 99 out of every 100 marijuana arrests in the U.S. 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.
(d) Although federal law currently prohibits any use of marijuana, the
laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada,
Oregon, Vermont, Rhode Island, Washington and New Mexico permit the medical use and cultivation of marijuana. North Dakota joins in this effort for the health and welfare of its citizens.
(e) States are not required to enforce federal law or prosecute people from
engaging in activities prohibited by federal law. Therefore, compliance
with this act does not put the state of North Dakota in violation of federal law.
(f) State law should make a distinction between the medical and non-medical
uses of marijuana. Hence, the purpose of this act is to protect
patients with debilitating medical conditions, and their practitioners and
primary caregivers, from arrest and prosecution, criminal and other
penalties, and property forfeiture if such patients engage in the medical
use of marijuana.
(g) The people of the state of North Dakota declare that they enact this act
pursuant to the police power to protect the health of its citizens that is
reserved to the state of North Dakota and its people under the 10th
Amendment to the United States Constitution.
Section 3. Definitions.
The following terms, as used in this act, shall have the meanings set forth
in this section:
(a) “Debilitating medical condition” means:
(1) cancer, glaucoma, positive status for human immunodeficiency virus,
acquired immune deficiency syndrome, Hepatitis C, or the treatment of
these conditions and any other condition or disorder for which a patient’s practitioner or doctor may see marijuana’s usefulness;
(2) a chronic or debilitating disease or medical condition or its treatment
that produces one or more of the following: cachexia or wasting
syndrome; severe pain; severe nausea; seizures, including but not limited
to those characteristic of epilepsy; severe and persistent muscle spasms,
including but not limited to those characteristic of multiple sclerosis;
amyotrophic lateral sclerosis; Crohn’s disease; and agitation of
Alzheimer's disease; or
(3) any other medical condition or its treatment approved by the
department, as provided for in section 5(a).
(b) “Department” means the North Dakota Department of Health or its successor
agency.
(c) “Marijuana” has the meaning given that term in North Dakota.
(d) “Medical use” means the acquisition, possession, cultivation,
manufacture, use, delivery, transfer, or transportation of marijuana or
paraphernalia relating to the consumption of marijuana to alleviate a
registered qualifying patient’s debilitating medical condition or
symptoms associated with the medical condition.
(e) “Practitioner” means a person who is licensed with authority to
prescribe drugs under section _____.
(f) “Primary caregiver” means a person who is at least 18 years old and
who has agreed to assist with a person's medical use of marijuana. A
primary caregiver may assist no more than five qualifying patients with
their medical use of marijuana.
(g) “Qualifying patient” means a person who has been diagnosed by a
practitioner as having a debilitating medical condition.
(h) “Registry identification card” means a document issued by the
department that identifies a person as a registered qualifying patient or
registered primary caregiver.
(i) “Usable marijuana” means the dried flowers of the
marijuana plant, and any mixture or preparation thereof, but does not
include the large leaves, seeds, stalks, and roots of the plant.
(j) “Visiting qualifying patient” means a qualifying patient who is a resident
of a state which has enacted medical marijuana laws and is not a resident
of North Dakota or who has been a resident of North Dakota less than 30
days.
(k) “Written certification” means a statement signed by a practitioner,
stating that in the practitioner’s professional opinion the qualifying
patient is likely to receive therapeutic benefit from the medical use of
marijuana to treat or alleviate the symptoms of a debilitating medical
condition, and that such benefit will in their opinion, outweigh the risks of
the use of medical marijuana. A written certification shall be made only in
the course of a bona fide practitioner-patient relationship after the
practitioner has completed a full assessment of the qualifying patient’s
medical history. The written certification shall specify the qualifying
patient's debilitating medical condition or conditions.
(L) “Nonprofit Dispensaries” means a registered organization
within the state of North Dakota.
(M) "Registered organization" means a nonprofit entity registered with the
state under this act that acquires, possesses, cultivates, manufactures,
delivers, transfers, transports, supplies, or dispenses marijuana,
cultivation equipment, related supplies and educational materials, or
marijuana seeds to registered qualifying patients and their registered
primary caregivers. A registered organization is a primary caregiver,
although it may supply marijuana to any number of registered qualifying
patients who have designated it as one of their primary caregivers.
Section 4. Protections for the Medical Use of Marijuana.
(a) A qualifying patient who has in his or her possession a registry
identification card or a signed medical certificate from a practitioner shall
not be subject to arrest, prosecution, or penalty in any manner, or denied
any right or privilege, including but not limited to civil penalty or disciplinary
action by a business or occupational or professional licensing board or
bureau, for the medical use of marijuana, provided that the qualifying
patient possesses an amount of marijuana that does not exceed 24
marijuana plants and 6 ounces of usable marijuana. Any incidental
amount of seeds, stalks, and unusable roots shall also be permitted and
shall not be included in this amount.
(b) A primary caregiver who has in his or her possession a registry
identification card shall not be subject to arrest, prosecution, or penalty
in any manner, or denied any right or privilege, including but not limited
to civil penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for assisting a qualifying patient
to whom he or she is connected through the department's registration
process with the medical use of marijuana, provided that the primary
caregiver possesses an amount of marijuana that does not exceed 24
marijuana plants and 6 ounces of usable marijuana for each qualifying
patient to whom he or she is connected through the department's
registration process. Any incidental amount of seeds, stalks, and
unusable roots shall also be permitted and shall not be included in this
amount.
(c) No school, employer, or landlord may refuse to enroll or employ or
lease to, or otherwise penalize a person solely for his or her status as a
registered qualifying patient or a registered primary caregiver.
(d) No person can be denied custody of a minor for acting in accordance
with this act, unless the person's behavior is such that it creates a
reasonable and articulate danger to the minor.
(e) There shall exist a presumption that a qualifying patient or primary
caregiver is engaged in the medical use of marijuana if the qualifying
patient or primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marijuana that does not exceed the
amount permitted under this act. Such presumption may be rebutted by
evidence that conduct related to marijuana was not for the purpose of
alleviating the qualifying patient’s debilitating medical condition or
symptoms associated with the medical condition.
(f) A registered primary caregiver may receive compensation for costs
associated with assisting with a registered qualifying patient's medical
use of marijuana, any such compensation shall not constitute sale of
controlled substances.
(g) A practitioner shall not be subject to arrest, prosecution, or penalty in
any manner, or denied any right or privilege, including but not limited to
civil penalty or disciplinary action by the North Dakota Medical Board or by
another business or occupational or professional licensing board or
bureau, solely for providing written certifications or for otherwise stating
that, in the practitioner's professional opinion, the qualifying patient is
likely to receive therapeutic benefit from the medical use of marijuana to
treat or alleviate the symptoms of a debilitating medical condition,
provided that nothing shall prevent a professional licensing board from
sanctioning a practitioner for failure to properly evaluate a patient's
medical condition or otherwise violating the standard of care for
evaluating medical conditions.
(h) No person shall be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to civil
penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for providing a registered
qualifying patient or a registered primary caregiver with marijuana
paraphernalia for purposes of a qualifying patient’s medical use.
(I) (1) Any interest in or right to property that is possessed, owned, or
used in connection with the medical use of marijuana, or acts incidental
to such use, shall not be forfeited.
(2) A law enforcement agency that seizes and does not return usable
marijuana to a registered qualifying patient or a registered primary
caregiver shall be liable to the cardholder for the fair market value of the
marijuana.
(J) No person shall be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to civil
penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, simply for being in the presence
or vicinity of the medical use of marijuana as permitted under this act, or
for assisting a registered qualifying patient with using marijuana.
(k) A registry identification card, or its equivalent, that is issued under the
laws of another state, U.S. territory, or the District of Columbia to permit
the medical use of marijuana by a visiting qualifying patient, or to permit
a person to assist with a visiting qualifying patient's medical use of
marijuana, shall have the same force and effect as a registry identification
card issued by the department.
Section 5. Department to Issue Regulations.
(a) Not later than 120 days after the effective date of this act, the
department shall promulgate regulations governing the manner in which
it shall consider petitions from the public to add debilitating medical
conditions to those included in this act. In considering such petitions, the
department shall include public notice of, and an opportunity to
comment in a public hearing upon, such petitions. The department shall,
after hearing, approve or deny such petitions within 180 days of
submission. The approval or denial of such a petition shall be considered
a final department action, subject to judicial review. Jurisdiction and
venue for judicial review are vested in the _____ Court.
(b) Not later than 120 days after the effective date of this act, the
department shall promulgate regulations governing the manner in which
it shall consider applications for and renewals of registry identification
cards for qualifying patients and primary caregivers. The department's
regulations shall establish application and renewal fees that generate
revenues sufficient to offset all expenses of implementing and
administering this act. The department may vary the application and
renewal fees along a sliding scale that accounts for a qualifying patient's
income. The department may accept donations from private sources in
order to reduce the application and renewal fees.
Section 6. Administering the Department's Regulations.
(a) The department shall issue registry identification cards to qualifying
patients who submit the following, in accordance with the department’s
regulations:
(1) written certification;
(2) application or renewal fee;
(3) name, address, and date of birth of the qualifying patient, except that
if the applicant is homeless, no address is required;
(4) name, address, and telephone number of the qualifying patient’s
practitioner; and
(5) name, address, and date of birth of each primary caregiver, if any, of
the qualifying patient.
(b) The department shall not issue a registry identification card to a
qualifying patient under the age of 18 unless:
(1) The qualifying patient’s practitioner has explained the potential risks
and benefits of the medical use of marijuana to the qualifying patient and
to a parent, guardian, or person having legal custody of the qualifying
patient; and
(2) The parent, guardian, or person having legal custody consents in
writing to:
(A) allow the qualifying patient’s medical use of marijuana;
(B) serve as one of the qualifying patient’s primary caregivers; and
(C) control the acquisition of the marijuana, the dosage, and the
frequency of the medical use of marijuana by the qualifying patient.
(c) The department shall verify the information contained in an
application or renewal submitted pursuant to this section, and shall
approve or deny an application or renewal within 15 days of receiving it.
The department may deny an application or renewal only if the applicant
did not provide the information required pursuant to this section, or if
the department determines that the information provided was falsified.
Rejection of an application or renewal is considered a final department
action, subject to judicial review. Jurisdiction and venue for judicial review
are vested in the _____ Court.
(d) The department shall issue a registry identification card to each
primary caregiver, if any, who is named in a qualifying patient's approved
application, up to a maximum of two primary caregivers per qualifying
patient.
(e) The department shall issue registry identification cards within five
days of approving an application or renewal, which shall expire one year
after the date of issuance. Registry identification cards shall contain:
(1) name, address, and date of birth of the qualifying patient;
(2) name, address, and date of birth of each primary caregiver, if any, of
the qualifying patient;
(3) the date of issuance and expiration date of the registry identification
card;
(4) a random identification number; and
(5) a photograph, if the department decides to require one.
(f)(1) A registered qualifying patient shall notify the department of any
change in the registered qualifying patient's name, address, or primary
caregiver, or if the registered qualifying patient ceases to have his or her
debilitating medical condition, within 10 days of such change.
(2) A registered qualifying patient who fails to notify the department of
any of these changes is responsible for a civil infraction, punishable by a
fine of no more than $150. If the registered qualifying patient’s certifying
practitioner notifies the department in writing that the registered
qualifying patient’s has ceased to suffer from a debilitating medical
condition, the card shall become null and void upon notification by the
department to the qualifying patient.
(3) A registered primary caregiver shall notify the department of any
change in his or her name or address within 10 days of such change. A
registered primary caregiver who fails to notify the department of any of
these changes is responsible for a civil infraction, punishable by a fine of
no more than $150.
(4) When a registered qualifying patient or registered primary caregiver
notifies the department of any changes listed in this subsection, the
department shall issue the registered qualifying patient and each
registered primary caregiver a new registry identification card within 10
days of receiving the updated information and a $10 fee.
(5) When a registered qualifying patient changes his or her registered
primary caregiver, the department shall notify the primary caregiver
within 10 days. The registered primary caregiver's protections as
provided in this act shall expire 10 days after notification by the
department.
(6) If a registered qualifying patient or registered primary caregiver loses
his or her registry identification card, he or she shall notify the
department and submit a $10 fee within 10 days of losing the card.
Within five days after such notification, the department shall issue a new
registry identification card with a new random identification number.
(g) Possession of, or application for, a registry identification card shall
not constitute probable cause or reasonable suspicion, nor shall it be
used to support the search of the person or property of the person
possessing or applying for the registry identification card, or otherwise
subject the person or property of the person to inspection by any
governmental agency.
(h)(1) Applications and supporting information submitted by qualifying
patients, including information regarding their primary caregivers and
practitioners, are confidential.
(2) The department shall maintain a confidential list of the persons to
whom the department has issued registry identification cards. Individual
names and other identifying information on the list shall be confidential,
exempt from the North Dakota Freedom of Information Act, and not subject to
disclosure, except to authorized employees of the department as
necessary to perform official duties of the department.
(3) The department shall verify to law enforcement personnel whether a
registry identification card is valid, without disclosing more information
than is reasonably necessary to verify the authenticity of the registry
identification card.
(4) It shall be a crime, punishable by up to 180 days in jail and a $1,000
fine, for any person, including an employee or official of the department
or another state agency or local government, to breach the confidentiality
of information obtained pursuant to this act. Notwithstanding this
provision, department employees may notify law enforcement about
falsified or fraudulent information submitted to the department, so long
as the employee who suspects that falsified or fraudulent information has
been submitted confers with his or her supervisor (or at least two other
employees of the department) and all agree that circumstances exist
that warrant reporting.
(i) The department shall report annually to the legislature on the number
of applications for registry identification cards, the number of qualifying
patients and primary caregivers approved, the nature of the debilitating
medical conditions of the qualifying patients, the number of registry
identification cards revoked, and the number of practitioners providing
written certification for qualifying patients. The department shall not
provide any identifying information of qualifying patients, primary
caregivers, or practitioners.
(j) It is the public policy of this state to allow the medical use of marijuana
in accordance with this act. State and local law enforcement agencies
shall establish procedures within 120 days of enactment to ensure that
state and local law enforcement officials act in accordance with this act.
This includes establishing procedures and penalties to ensure that state
and local law enforcement officials do not cooperate with federal officials
to arrest, prosecute, search, or seize property from registered primary
caregivers and registered qualifying patients. Any state or local law
enforcement official who knowingly and willfully divulges information
about the medical use of marijuana by a registered qualifying patient or a
registered primary caregiver, including to a federal law enforcement
official or agency, or who arrests, prosecutes, searches, or seizes
property from a registered qualifying patient or a registered primary
caregiver for acting in compliance with this act shall be subject to having
his or her employment suspended or terminated. This shall not prevent a
state or local law enforcement official from communicating with other
state or local law enforcement officials or from reporting a violation of
state law to another state or local agency or official, as provided by law.
Section 7, Nonprofit Dispensaries.
(1) The department shall issue a registered organization license within
20 days to any person who complies with department regulations and
provides the following:
(A) a fee paid to the department in the amount established by the
department, which shall not exceed $1,000;
(B) the name of the registered organization;
(C) the physical addresses of the registered organization and any other
real property where marijuana is to be possessed, cultivated,
manufactured, supplied, or dispensed relating to the operations of the
registered organization; and
(D) the name, address, and date of birth of any person who is an agent of
or employed by the registered organization.
(2) The department shall issue each agent and employee of a registered
organization a registry identification card for a cost of $10 each within 10
days of receipt of the person's identifying information and the fee. Each
card shall specify that the cardholder is an employee or agent of a
registered organization.
(3) Each license for a registered organization and each employee or agent
registry identification card shall expire one year after the date of
issuance.
(4) Not later than 120 days after the effective date of this act, the
department shall promulgate regulations to implement this section,
including the following:
(A) procedures for the oversight of registered organizations, recordkeeping
and reporting requirements for registered organizations, the
potential transference or sale of seized cultivation equipment and related
supplies from law enforcement agencies to registered organizations, and
procedures for suspending or terminating the registration of registered
organizations; and
(b) the form and content of the registration and renewal applications.
(c) Registered organizations shall be subject to reasonable inspection by
the department to determine that applicable rules are being followed.
Reasonable notice shall be given prior to these inspections.
(d) (1) Registered organizations shall be established as nonprofit entities.
They shall be subject to all applicable state laws governing nonprofit
entities, but need not be recognized as a 501(c)(3) organization by the
Internal Revenue Service;
(2) Registered organizations may not be located within 500 feet of the
property line of a preexisting public school, private school, or structure
used primarily for religious services or worship.
(3) The operating documents of a registered organization shall include
procedures for the oversight of the registered organization and
procedures to ensure adequate record-keeping.
(e)(1) A registered organization shall notify the department within 10
days of when an employee or agent ceases to work at the registered
organization.
(2) The registered organization shall notify the department in writing
before a new agent or employee begins working at the registered
organization, and it shall submit a $10 fee for that person's registry
identification card. If a registered organization submits a fax or an email
to the department at any time before the employee or agent works for the
registered organization, it fulfills the notice requirement under this
subsection provided that the applicable $10 fee is forwarded immediately
to the department.
(f)(1) No registered organization shall be subject to prosecution, search,
seizure, or penalty in any manner, or denied any right or privilege,
including but not limited to civil penalty or disciplinary action by a
business or occupational or professional licensing board or bureau, for
acting in accordance with this act and the regulations issued pursuant
thereto to assist registered qualifying patients to whom it is connected
through the department's registration process with the medical use of
marijuana, provided that the registered organization possesses an
amount of marijuana which does not exceed 24 marijuana plants and
6 ounces of usable marijuana for each registered qualifying patient.
(2) No employees, agents, or board members of a registered organization
shall be subject to arrest, prosecution, search, seizure, or penalty in any
manner, or denied any right or privilege, including but not limited to civil
penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for working for a registered
organization in accordance with this act.
(g) The registered organization is prohibited from acquiring, possessing,
cultivating, manufacturing, delivering, transferring, transporting,
supplying, or dispensing marijuana for any purpose except to assist
registered qualifying patients with their medical use of marijuana directly
or through the registered qualifying patients' other registered primary
caregivers.
(h) Except as provided in this act, a municipality may not prevent a
registered organization from operating in accordance with this act in an
area where the municipality’s zoning permits retail businesses.
(i) If the provisions of this act establishing registered organizations are
enjoined or declared unconstitutional, then enforcing laws against the
delivery of marijuana for consideration to registered qualifying patients
shall be the lowest priority for law enforcement within the state and shall
hold nothing more than civil penalties.
Section 8. Scope of Act.
(a) This act shall not permit:
(1) any person to undertake any task under the influence of marijuana,
when doing so would constitute negligence or professional malpractice;
(2) the smoking of marijuana:
(A) in a school bus or other form of public transportation;
(B) on any preschool or primary or secondary school grounds;
(C) in any correctional facility, unless the person was a registered patient prior to incarceration; or
(D) in any public place; or
(3) any person to operate, navigate, or be in actual physical control of any
motor vehicle, aircraft, or motorboat while under the influence of
marijuana. However, a registered qualifying patient shall not be
considered to be under the influence because of the presence of non-psychoactive metabolites or other components of marijuana that appear
in insufficient quantity to be psychoactive.
(b) Nothing in this act shall be construed to require:
(1) a government medical assistance program or private health insurer to
reimburse a person for costs associated with the medical use of
marijuana; or
(2) an employer to accommodate the ingestion of marijuana in any
workplace or any employee working while under the influence of
marijuana, provided that a qualifying patient shall not be considered to
be under the influence solely because of the presence of non-psychoactive
metabolites or other components of marijuana that appear
in insufficient quantity to be psychoactive.
(c) Fraudulent representation to a law enforcement official of any fact or
circumstance relating to the medical use of marijuana to avoid arrest or
prosecution shall be punishable by a fine of $500, which shall be in
addition to any other penalties that may apply for making a false
statement or for the non-medical use of marijuana.
Section 9. Affirmative Defense and Dismissal for Medical Marijuana.
(a) Except as provided in section 7, a person and a person's primary
caregiver, if any, may assert the medical purpose for using marijuana as a
defense to any prosecution involving marijuana, and such defense shall
be presumed valid where the evidence shows that:
(1) a practitioner has stated that, in the practitioner’s professional
opinion, after having completed a full assessment of the person’s medical
history and current medical condition made in the course of a bona fide
practitioner-patient relationship, the person is likely to receive
therapeutic benefit from the medical use of marijuana to treat or alleviate
the symptoms of the person’s serious medical condition; and
(2) the person and the person’s primary caregiver, if any, were collectively
in possession of a quantity of marijuana that was not more than was
reasonably necessary to ensure the uninterrupted availability of
marijuana for the purpose of alleviating the person’s serious medical
condition or symptoms of the person’s medical condition.
(b) A person may assert the medical purpose for using marijuana in a
motion to dismiss, and the charges shall be dismissed following an
evidentiary hearing where the defendant shows the elements listed in
section 9(a).
(c) If a person or a person’s primary caregiver demonstrates the person's
medical purpose for using marijuana pursuant to this section, the person
shall not be subject to the following for the person's use of marijuana for
medical purposes:
1) disciplinary action by a business or occupational or professional
licensing board or bureau; or
2) forfeiture of any interest in or right to property.
Section 10. Enforcement of this Act.
(a) If the department fails to adopt regulations to implement this act
within 120 days of the effective date of this act, a qualifying patient may
commence an action in ____ court to compel the department to perform
the actions mandated pursuant to the provisions of this act.
(b) If the department fails to issue a valid registry identification card in
response to a valid application or renewal submitted pursuant to this act
within 20 days of its submission, the registry identification card shall be
deemed granted, and a copy of the registry identification application or
renewal shall be deemed a valid registry identification card.
(c) If at any time after the 140 days following the effective date of this act
the department is not accepting applications, including if it has not
created regulations allowing qualifying patients to submit applications, a
notarized statement by a qualifying patient containing the information
required in an application, pursuant to section 6 (a)(2-5), and a written
certification shall be deemed a valid registry identification card.
Section 11. Severability.
Any section of this act being held invalid as to any person or
circumstances shall not affect the application of any other section of this
act that can be given full effect without the invalid section or application.
Section 12. Date of Effect.
This act shall take effect upon its approval by the people of North Dakota.
The Compassionate North Dakotans Medical Marijuana Act:
Be it enacted by the people of the state of North Dakota:
Section 1. Title. Compassionate North Dakotan’s Medical Marijuana Act.
Sections 1 through 12 of this act shall be known as the Compassionate North Dakotan’s Medical Marijuana Act.
Section 2. Findings.
(a) Modern medical research has discovered beneficial uses for marijuana
in treating or alleviating the pain, nausea, and other symptoms
associated with a variety of debilitating medical conditions, as found by
the National Academy of Sciences’ Institute of Medicine in March 1999.
(b) Subsequent studies since the 1999 National Academy of Sciences’
Institute of Medicine report continue to show the therapeutic value of
marijuana in treating a wide array of debilitating medical conditions,
including increasing the chances of patients continuing their treatments for
HIV/AIDS and Hepatitis C.
(c) According to the U.S. Sentencing Commission and the Federal Bureau
of Investigation, 99 out of every 100 marijuana arrests in the U.S. 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.
(d) Although federal law currently prohibits any use of marijuana, the
laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada,
Oregon, Vermont, Rhode Island, Washington and New Mexico permit the medical use and cultivation of marijuana. North Dakota joins in this effort for the health and welfare of its citizens.
(e) States are not required to enforce federal law or prosecute people from
engaging in activities prohibited by federal law. Therefore, compliance
with this act does not put the state of North Dakota in violation of federal law.
(f) State law should make a distinction between the medical and non-medical
uses of marijuana. Hence, the purpose of this act is to protect
patients with debilitating medical conditions, and their practitioners and
primary caregivers, from arrest and prosecution, criminal and other
penalties, and property forfeiture if such patients engage in the medical
use of marijuana.
(g) The people of the state of North Dakota declare that they enact this act
pursuant to the police power to protect the health of its citizens that is
reserved to the state of North Dakota and its people under the 10th
Amendment to the United States Constitution.
Section 3. Definitions.
The following terms, as used in this act, shall have the meanings set forth
in this section:
(a) “Debilitating medical condition” means:
(1) cancer, glaucoma, positive status for human immunodeficiency virus,
acquired immune deficiency syndrome, Hepatitis C, or the treatment of
these conditions and any other condition or disorder for which a patient’s practitioner or doctor may see marijuana’s usefulness;
(2) a chronic or debilitating disease or medical condition or its treatment
that produces one or more of the following: cachexia or wasting
syndrome; severe pain; severe nausea; seizures, including but not limited
to those characteristic of epilepsy; severe and persistent muscle spasms,
including but not limited to those characteristic of multiple sclerosis;
amyotrophic lateral sclerosis; Crohn’s disease; and agitation of
Alzheimer's disease; or
(3) any other medical condition or its treatment approved by the
department, as provided for in section 5(a).
(b) “Department” means the North Dakota Department of Health or its successor
agency.
(c) “Marijuana” has the meaning given that term in North Dakota.
(d) “Medical use” means the acquisition, possession, cultivation,
manufacture, use, delivery, transfer, or transportation of marijuana or
paraphernalia relating to the consumption of marijuana to alleviate a
registered qualifying patient’s debilitating medical condition or
symptoms associated with the medical condition.
(e) “Practitioner” means a person who is licensed with authority to
prescribe drugs under section _____.
(f) “Primary caregiver” means a person who is at least 18 years old and
who has agreed to assist with a person's medical use of marijuana. A
primary caregiver may assist no more than five qualifying patients with
their medical use of marijuana.
(g) “Qualifying patient” means a person who has been diagnosed by a
practitioner as having a debilitating medical condition.
(h) “Registry identification card” means a document issued by the
department that identifies a person as a registered qualifying patient or
registered primary caregiver.
(i) “Usable marijuana” means the dried flowers of the
marijuana plant, and any mixture or preparation thereof, but does not
include the large leaves, seeds, stalks, and roots of the plant.
(j) “Visiting qualifying patient” means a qualifying patient who is a resident
of a state which has enacted medical marijuana laws and is not a resident
of North Dakota or who has been a resident of North Dakota less than 30
days.
(k) “Written certification” means a statement signed by a practitioner,
stating that in the practitioner’s professional opinion the qualifying
patient is likely to receive therapeutic benefit from the medical use of
marijuana to treat or alleviate the symptoms of a debilitating medical
condition, and that such benefit will in their opinion, outweigh the risks of
the use of medical marijuana. A written certification shall be made only in
the course of a bona fide practitioner-patient relationship after the
practitioner has completed a full assessment of the qualifying patient’s
medical history. The written certification shall specify the qualifying
patient's debilitating medical condition or conditions.
(L) “Nonprofit Dispensaries” means a registered organization
within the state of North Dakota.
(M) "Registered organization" means a nonprofit entity registered with the
state under this act that acquires, possesses, cultivates, manufactures,
delivers, transfers, transports, supplies, or dispenses marijuana,
cultivation equipment, related supplies and educational materials, or
marijuana seeds to registered qualifying patients and their registered
primary caregivers. A registered organization is a primary caregiver,
although it may supply marijuana to any number of registered qualifying
patients who have designated it as one of their primary caregivers.
Section 4. Protections for the Medical Use of Marijuana.
(a) A qualifying patient who has in his or her possession a registry
identification card or a signed medical certificate from a practitioner shall
not be subject to arrest, prosecution, or penalty in any manner, or denied
any right or privilege, including but not limited to civil penalty or disciplinary
action by a business or occupational or professional licensing board or
bureau, for the medical use of marijuana, provided that the qualifying
patient possesses an amount of marijuana that does not exceed 24
marijuana plants and 6 ounces of usable marijuana. Any incidental
amount of seeds, stalks, and unusable roots shall also be permitted and
shall not be included in this amount.
(b) A primary caregiver who has in his or her possession a registry
identification card shall not be subject to arrest, prosecution, or penalty
in any manner, or denied any right or privilege, including but not limited
to civil penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for assisting a qualifying patient
to whom he or she is connected through the department's registration
process with the medical use of marijuana, provided that the primary
caregiver possesses an amount of marijuana that does not exceed 24
marijuana plants and 6 ounces of usable marijuana for each qualifying
patient to whom he or she is connected through the department's
registration process. Any incidental amount of seeds, stalks, and
unusable roots shall also be permitted and shall not be included in this
amount.
(c) No school, employer, or landlord may refuse to enroll or employ or
lease to, or otherwise penalize a person solely for his or her status as a
registered qualifying patient or a registered primary caregiver.
(d) No person can be denied custody of a minor for acting in accordance
with this act, unless the person's behavior is such that it creates a
reasonable and articulate danger to the minor.
(e) There shall exist a presumption that a qualifying patient or primary
caregiver is engaged in the medical use of marijuana if the qualifying
patient or primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marijuana that does not exceed the
amount permitted under this act. Such presumption may be rebutted by
evidence that conduct related to marijuana was not for the purpose of
alleviating the qualifying patient’s debilitating medical condition or
symptoms associated with the medical condition.
(f) A registered primary caregiver may receive compensation for costs
associated with assisting with a registered qualifying patient's medical
use of marijuana, any such compensation shall not constitute sale of
controlled substances.
(g) A practitioner shall not be subject to arrest, prosecution, or penalty in
any manner, or denied any right or privilege, including but not limited to
civil penalty or disciplinary action by the North Dakota Medical Board or by
another business or occupational or professional licensing board or
bureau, solely for providing written certifications or for otherwise stating
that, in the practitioner's professional opinion, the qualifying patient is
likely to receive therapeutic benefit from the medical use of marijuana to
treat or alleviate the symptoms of a debilitating medical condition,
provided that nothing shall prevent a professional licensing board from
sanctioning a practitioner for failure to properly evaluate a patient's
medical condition or otherwise violating the standard of care for
evaluating medical conditions.
(h) No person shall be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to civil
penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for providing a registered
qualifying patient or a registered primary caregiver with marijuana
paraphernalia for purposes of a qualifying patient’s medical use.
(I) (1) Any interest in or right to property that is possessed, owned, or
used in connection with the medical use of marijuana, or acts incidental
to such use, shall not be forfeited.
(2) A law enforcement agency that seizes and does not return usable
marijuana to a registered qualifying patient or a registered primary
caregiver shall be liable to the cardholder for the fair market value of the
marijuana.
(J) No person shall be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to civil
penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, simply for being in the presence
or vicinity of the medical use of marijuana as permitted under this act, or
for assisting a registered qualifying patient with using marijuana.
(k) A registry identification card, or its equivalent, that is issued under the
laws of another state, U.S. territory, or the District of Columbia to permit
the medical use of marijuana by a visiting qualifying patient, or to permit
a person to assist with a visiting qualifying patient's medical use of
marijuana, shall have the same force and effect as a registry identification
card issued by the department.
Section 5. Department to Issue Regulations.
(a) Not later than 120 days after the effective date of this act, the
department shall promulgate regulations governing the manner in which
it shall consider petitions from the public to add debilitating medical
conditions to those included in this act. In considering such petitions, the
department shall include public notice of, and an opportunity to
comment in a public hearing upon, such petitions. The department shall,
after hearing, approve or deny such petitions within 180 days of
submission. The approval or denial of such a petition shall be considered
a final department action, subject to judicial review. Jurisdiction and
venue for judicial review are vested in the _____ Court.
(b) Not later than 120 days after the effective date of this act, the
department shall promulgate regulations governing the manner in which
it shall consider applications for and renewals of registry identification
cards for qualifying patients and primary caregivers. The department's
regulations shall establish application and renewal fees that generate
revenues sufficient to offset all expenses of implementing and
administering this act. The department may vary the application and
renewal fees along a sliding scale that accounts for a qualifying patient's
income. The department may accept donations from private sources in
order to reduce the application and renewal fees.
Section 6. Administering the Department's Regulations.
(a) The department shall issue registry identification cards to qualifying
patients who submit the following, in accordance with the department’s
regulations:
(1) written certification;
(2) application or renewal fee;
(3) name, address, and date of birth of the qualifying patient, except that
if the applicant is homeless, no address is required;
(4) name, address, and telephone number of the qualifying patient’s
practitioner; and
(5) name, address, and date of birth of each primary caregiver, if any, of
the qualifying patient.
(b) The department shall not issue a registry identification card to a
qualifying patient under the age of 18 unless:
(1) The qualifying patient’s practitioner has explained the potential risks
and benefits of the medical use of marijuana to the qualifying patient and
to a parent, guardian, or person having legal custody of the qualifying
patient; and
(2) The parent, guardian, or person having legal custody consents in
writing to:
(A) allow the qualifying patient’s medical use of marijuana;
(B) serve as one of the qualifying patient’s primary caregivers; and
(C) control the acquisition of the marijuana, the dosage, and the
frequency of the medical use of marijuana by the qualifying patient.
(c) The department shall verify the information contained in an
application or renewal submitted pursuant to this section, and shall
approve or deny an application or renewal within 15 days of receiving it.
The department may deny an application or renewal only if the applicant
did not provide the information required pursuant to this section, or if
the department determines that the information provided was falsified.
Rejection of an application or renewal is considered a final department
action, subject to judicial review. Jurisdiction and venue for judicial review
are vested in the _____ Court.
(d) The department shall issue a registry identification card to each
primary caregiver, if any, who is named in a qualifying patient's approved
application, up to a maximum of two primary caregivers per qualifying
patient.
(e) The department shall issue registry identification cards within five
days of approving an application or renewal, which shall expire one year
after the date of issuance. Registry identification cards shall contain:
(1) name, address, and date of birth of the qualifying patient;
(2) name, address, and date of birth of each primary caregiver, if any, of
the qualifying patient;
(3) the date of issuance and expiration date of the registry identification
card;
(4) a random identification number; and
(5) a photograph, if the department decides to require one.
(f)(1) A registered qualifying patient shall notify the department of any
change in the registered qualifying patient's name, address, or primary
caregiver, or if the registered qualifying patient ceases to have his or her
debilitating medical condition, within 10 days of such change.
(2) A registered qualifying patient who fails to notify the department of
any of these changes is responsible for a civil infraction, punishable by a
fine of no more than $150. If the registered qualifying patient’s certifying
practitioner notifies the department in writing that the registered
qualifying patient’s has ceased to suffer from a debilitating medical
condition, the card shall become null and void upon notification by the
department to the qualifying patient.
(3) A registered primary caregiver shall notify the department of any
change in his or her name or address within 10 days of such change. A
registered primary caregiver who fails to notify the department of any of
these changes is responsible for a civil infraction, punishable by a fine of
no more than $150.
(4) When a registered qualifying patient or registered primary caregiver
notifies the department of any changes listed in this subsection, the
department shall issue the registered qualifying patient and each
registered primary caregiver a new registry identification card within 10
days of receiving the updated information and a $10 fee.
(5) When a registered qualifying patient changes his or her registered
primary caregiver, the department shall notify the primary caregiver
within 10 days. The registered primary caregiver's protections as
provided in this act shall expire 10 days after notification by the
department.
(6) If a registered qualifying patient or registered primary caregiver loses
his or her registry identification card, he or she shall notify the
department and submit a $10 fee within 10 days of losing the card.
Within five days after such notification, the department shall issue a new
registry identification card with a new random identification number.
(g) Possession of, or application for, a registry identification card shall
not constitute probable cause or reasonable suspicion, nor shall it be
used to support the search of the person or property of the person
possessing or applying for the registry identification card, or otherwise
subject the person or property of the person to inspection by any
governmental agency.
(h)(1) Applications and supporting information submitted by qualifying
patients, including information regarding their primary caregivers and
practitioners, are confidential.
(2) The department shall maintain a confidential list of the persons to
whom the department has issued registry identification cards. Individual
names and other identifying information on the list shall be confidential,
exempt from the North Dakota Freedom of Information Act, and not subject to
disclosure, except to authorized employees of the department as
necessary to perform official duties of the department.
(3) The department shall verify to law enforcement personnel whether a
registry identification card is valid, without disclosing more information
than is reasonably necessary to verify the authenticity of the registry
identification card.
(4) It shall be a crime, punishable by up to 180 days in jail and a $1,000
fine, for any person, including an employee or official of the department
or another state agency or local government, to breach the confidentiality
of information obtained pursuant to this act. Notwithstanding this
provision, department employees may notify law enforcement about
falsified or fraudulent information submitted to the department, so long
as the employee who suspects that falsified or fraudulent information has
been submitted confers with his or her supervisor (or at least two other
employees of the department) and all agree that circumstances exist
that warrant reporting.
(i) The department shall report annually to the legislature on the number
of applications for registry identification cards, the number of qualifying
patients and primary caregivers approved, the nature of the debilitating
medical conditions of the qualifying patients, the number of registry
identification cards revoked, and the number of practitioners providing
written certification for qualifying patients. The department shall not
provide any identifying information of qualifying patients, primary
caregivers, or practitioners.
(j) It is the public policy of this state to allow the medical use of marijuana
in accordance with this act. State and local law enforcement agencies
shall establish procedures within 120 days of enactment to ensure that
state and local law enforcement officials act in accordance with this act.
This includes establishing procedures and penalties to ensure that state
and local law enforcement officials do not cooperate with federal officials
to arrest, prosecute, search, or seize property from registered primary
caregivers and registered qualifying patients. Any state or local law
enforcement official who knowingly and willfully divulges information
about the medical use of marijuana by a registered qualifying patient or a
registered primary caregiver, including to a federal law enforcement
official or agency, or who arrests, prosecutes, searches, or seizes
property from a registered qualifying patient or a registered primary
caregiver for acting in compliance with this act shall be subject to having
his or her employment suspended or terminated. This shall not prevent a
state or local law enforcement official from communicating with other
state or local law enforcement officials or from reporting a violation of
state law to another state or local agency or official, as provided by law.
Section 7, Nonprofit Dispensaries.
(1) The department shall issue a registered organization license within
20 days to any person who complies with department regulations and
provides the following:
(A) a fee paid to the department in the amount established by the
department, which shall not exceed $1,000;
(B) the name of the registered organization;
(C) the physical addresses of the registered organization and any other
real property where marijuana is to be possessed, cultivated,
manufactured, supplied, or dispensed relating to the operations of the
registered organization; and
(D) the name, address, and date of birth of any person who is an agent of
or employed by the registered organization.
(2) The department shall issue each agent and employee of a registered
organization a registry identification card for a cost of $10 each within 10
days of receipt of the person's identifying information and the fee. Each
card shall specify that the cardholder is an employee or agent of a
registered organization.
(3) Each license for a registered organization and each employee or agent
registry identification card shall expire one year after the date of
issuance.
(4) Not later than 120 days after the effective date of this act, the
department shall promulgate regulations to implement this section,
including the following:
(A) procedures for the oversight of registered organizations, recordkeeping
and reporting requirements for registered organizations, the
potential transference or sale of seized cultivation equipment and related
supplies from law enforcement agencies to registered organizations, and
procedures for suspending or terminating the registration of registered
organizations; and
(b) the form and content of the registration and renewal applications.
(c) Registered organizations shall be subject to reasonable inspection by
the department to determine that applicable rules are being followed.
Reasonable notice shall be given prior to these inspections.
(d) (1) Registered organizations shall be established as nonprofit entities.
They shall be subject to all applicable state laws governing nonprofit
entities, but need not be recognized as a 501(c)(3) organization by the
Internal Revenue Service;
(2) Registered organizations may not be located within 500 feet of the
property line of a preexisting public school, private school, or structure
used primarily for religious services or worship.
(3) The operating documents of a registered organization shall include
procedures for the oversight of the registered organization and
procedures to ensure adequate record-keeping.
(e)(1) A registered organization shall notify the department within 10
days of when an employee or agent ceases to work at the registered
organization.
(2) The registered organization shall notify the department in writing
before a new agent or employee begins working at the registered
organization, and it shall submit a $10 fee for that person's registry
identification card. If a registered organization submits a fax or an email
to the department at any time before the employee or agent works for the
registered organization, it fulfills the notice requirement under this
subsection provided that the applicable $10 fee is forwarded immediately
to the department.
(f)(1) No registered organization shall be subject to prosecution, search,
seizure, or penalty in any manner, or denied any right or privilege,
including but not limited to civil penalty or disciplinary action by a
business or occupational or professional licensing board or bureau, for
acting in accordance with this act and the regulations issued pursuant
thereto to assist registered qualifying patients to whom it is connected
through the department's registration process with the medical use of
marijuana, provided that the registered organization possesses an
amount of marijuana which does not exceed 24 marijuana plants and
6 ounces of usable marijuana for each registered qualifying patient.
(2) No employees, agents, or board members of a registered organization
shall be subject to arrest, prosecution, search, seizure, or penalty in any
manner, or denied any right or privilege, including but not limited to civil
penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for working for a registered
organization in accordance with this act.
(g) The registered organization is prohibited from acquiring, possessing,
cultivating, manufacturing, delivering, transferring, transporting,
supplying, or dispensing marijuana for any purpose except to assist
registered qualifying patients with their medical use of marijuana directly
or through the registered qualifying patients' other registered primary
caregivers.
(h) Except as provided in this act, a municipality may not prevent a
registered organization from operating in accordance with this act in an
area where the municipality’s zoning permits retail businesses.
(i) If the provisions of this act establishing registered organizations are
enjoined or declared unconstitutional, then enforcing laws against the
delivery of marijuana for consideration to registered qualifying patients
shall be the lowest priority for law enforcement within the state and shall
hold nothing more than civil penalties.
Section 8. Scope of Act.
(a) This act shall not permit:
(1) any person to undertake any task under the influence of marijuana,
when doing so would constitute negligence or professional malpractice;
(2) the smoking of marijuana:
(A) in a school bus or other form of public transportation;
(B) on any preschool or primary or secondary school grounds;
(C) in any correctional facility, unless the person was a registered patient prior to incarceration; or
(D) in any public place; or
(3) any person to operate, navigate, or be in actual physical control of any
motor vehicle, aircraft, or motorboat while under the influence of
marijuana. However, a registered qualifying patient shall not be
considered to be under the influence because of the presence of non-psychoactive metabolites or other components of marijuana that appear
in insufficient quantity to be psychoactive.
(b) Nothing in this act shall be construed to require:
(1) a government medical assistance program or private health insurer to
reimburse a person for costs associated with the medical use of
marijuana; or
(2) an employer to accommodate the ingestion of marijuana in any
workplace or any employee working while under the influence of
marijuana, provided that a qualifying patient shall not be considered to
be under the influence solely because of the presence of non-psychoactive
metabolites or other components of marijuana that appear
in insufficient quantity to be psychoactive.
(c) Fraudulent representation to a law enforcement official of any fact or
circumstance relating to the medical use of marijuana to avoid arrest or
prosecution shall be punishable by a fine of $500, which shall be in
addition to any other penalties that may apply for making a false
statement or for the non-medical use of marijuana.
Section 9. Affirmative Defense and Dismissal for Medical Marijuana.
(a) Except as provided in section 7, a person and a person's primary
caregiver, if any, may assert the medical purpose for using marijuana as a
defense to any prosecution involving marijuana, and such defense shall
be presumed valid where the evidence shows that:
(1) a practitioner has stated that, in the practitioner’s professional
opinion, after having completed a full assessment of the person’s medical
history and current medical condition made in the course of a bona fide
practitioner-patient relationship, the person is likely to receive
therapeutic benefit from the medical use of marijuana to treat or alleviate
the symptoms of the person’s serious medical condition; and
(2) the person and the person’s primary caregiver, if any, were collectively
in possession of a quantity of marijuana that was not more than was
reasonably necessary to ensure the uninterrupted availability of
marijuana for the purpose of alleviating the person’s serious medical
condition or symptoms of the person’s medical condition.
(b) A person may assert the medical purpose for using marijuana in a
motion to dismiss, and the charges shall be dismissed following an
evidentiary hearing where the defendant shows the elements listed in
section 9(a).
(c) If a person or a person’s primary caregiver demonstrates the person's
medical purpose for using marijuana pursuant to this section, the person
shall not be subject to the following for the person's use of marijuana for
medical purposes:
1) disciplinary action by a business or occupational or professional
licensing board or bureau; or
2) forfeiture of any interest in or right to property.
Section 10. Enforcement of this Act.
(a) If the department fails to adopt regulations to implement this act
within 120 days of the effective date of this act, a qualifying patient may
commence an action in ____ court to compel the department to perform
the actions mandated pursuant to the provisions of this act.
(b) If the department fails to issue a valid registry identification card in
response to a valid application or renewal submitted pursuant to this act
within 20 days of its submission, the registry identification card shall be
deemed granted, and a copy of the registry identification application or
renewal shall be deemed a valid registry identification card.
(c) If at any time after the 140 days following the effective date of this act
the department is not accepting applications, including if it has not
created regulations allowing qualifying patients to submit applications, a
notarized statement by a qualifying patient containing the information
required in an application, pursuant to section 6 (a)(2-5), and a written
certification shall be deemed a valid registry identification card.
Section 11. Severability.
Any section of this act being held invalid as to any person or
circumstances shall not affect the application of any other section of this
act that can be given full effect without the invalid section or application.
Section 12. Date of Effect.
This act shall take effect upon its approval by the people of North Dakota.
