CAREGIVER COMPLIANCE AND RISK MANAGEMENT PROGRAM VOLUME 1

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Jonah Armstrong
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1 CAREGIVER COMPLIANCE AND RISK MANAGEMENT PROGRAM VOLUME 1

ABOUT THE CANNABIS LEGAL GROUP Protecting You and Your Business The Cannabis Legal Group is comprised of lawyers who specialize in cannabis-related legal issues with experience in established markets

2 ABOUT THE CANNABIS LEGAL GROUP Protecting You and Your Business The Cannabis Legal Group is comprised of lawyers who specialize in cannabis-related legal issues with experience in established markets such as Oregon and Colorado. Our group serves marijuana-related businesses with issues including regulatory compliance, land use, zoning, raising capital, and licensing. We also provide individuals counseling on caregiving compliance and aggressive criminal defense. Led by award-winning attorney Barton Morris, Michigan s only American Chemical Society s designated Forensic Lawyer-Scientist, the Cannabis Legal Group is the premier cannabis law firm in Metro Detroit. Science is a fundamental issue in all things related to marijuana, and it is a major reason why the group is the Face of Cannabis Law. The Cannabis Legal Group will provide the counsel and guidance necessary for long-term security and success in the fast changing cannabis marketplace. Cannabis Legal Group and the, Unauthorized use and/or duplication of this material without express and written permission from this site s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Cannabis Legal Group and the Caregivet Compliance and Risk Management Program with appropriate and specific direction to the original content.

3 INTRODUCTION This is the of the Cannabis Legal Group ( Compliance Program ). We created this Compliance Program to help Caregivers become compliant with the Michigan Medical Marijuana Act ( MMMA ), to stay in compliance with the MMMA, and to prepare you for the future of a fully regulated cannabis industry in Michigan. The content of this Compliance Program is drawn from the plain language of the MMMA, numerous court cases in Michigan interpreting the MMMA, and the years of combined experience among the attorneys at the Cannabis Legal Group. This Compliance Program, together with the supporting documents, forms and logs, have been provided to you with the express understanding that these documents are confidential, privileged and subject to U.S. Copyright law, and may not be redistributed to anyone without the express authorization of the Cannabis Legal Group. As the law evolves, so will this Compliance Program. As courts examine the MMMA additional insights will develop and be incorporated herein. You will receive timely updates to this Compliance Program. If you need assistance with the implementation of this Compliance Program, please schedule an appointment or a site visit after you have read through the program several times. Your understanding of the recommendations here, and daily implementation of the policies and procedures contained herein, is essential to the proper functioning of the program. If you don t work the Compliance Program, it won t work for you. Your experience with the implementation of this program is important to the Cannabis Legal Group and we look forward to and welcome your feedback. As always, if you have any questions you may always or call us for assistance. We are here for you now, and will continue to be as the cannabis industry develops more fully in Michigan in the months and years to come.

4 TABLE OF CONTENTS I. Michigan Medical Marijuana Act The Basics 5 II. Impact of New Medical Marihuana Facilities Licensing Act 9 III. The Caregiver Registered Patient Relationship 12 IV. Registered Patient-Physician Relationship 14 V. Usable Marijuana 15 VI. Enclosed Locked Facility 16 VII. Patient Cards 19 VIII. Permissible Transfers to Patients 20 IX. Locating Your Cultivation Facility 21 X. Transporting Medical Marijuana 23 XI. Waste Disposal 24 XII. Security 26 XIII. Testing Protocol 27 XIV. Pest Management 30 XV. Pesticide Use 32 XVI. Package and Labeling 33 XVII. Miscellaneous 34 XVIII. Emergency Contact Information 38 XIX. Forms and Logs Medical Marijuana Transfer Record 2. New Patient Intake Form 3. Patient Acknowledgement 4. Patient Card Tracking Form 5. Patient Investigation Form 6. Draft Patient Termination Letter 7. Plant Count Log 8. Patient Visitor Log 9. Monthly Waste Log (Multiple Caregivers) 10. Monthly Waste Log (Single Caregiver) XIV. Other Attachments 1. Amended Michigan Medical Marijuana Act 2. Medical Marijuana Facilities Licensing Act 4

5 COMPLIANCE PROGRAM POLICIES AND PROCEDURES The Michigan Medical Marihuana Act ( MMMA ) is not a statute that creates a robust cannabis business infrastructure in Michigan. The MMMA does not legalize the commercial cultivation or sale of marijuana in the State of Michigan. The MMMA, rather, is a criminal defensive statute against a limited number of allegations involving marijuana, but ONLY if certain conditions are met. This Compliance Program is designed to assist you in meeting all of those conditions. Most essential to the defenses available under the MMMA is the underlying principle that the purpose for the patient s use of the marijuana is truly medical. The non-medical use of marijuana, even for a Registered Patient, is not lawful in the State of Michigan. These policies and procedures, if followed, are designed to minimize your legal risk and permit you to successfully assert the defenses established by the MMMA - if the need to ever becomes necessary. I. Michigan Medical Marijuana Act The Basics In this section we provide you with basic information about the MMMA and the operation of the Michigan Medical Marijuana Program by Michigan s Department of Licensing and Regulatory Affairs ( LARA ). LARA administers the Michigan Medical Marihuana Program ( MMMP ). We have provided you with copies of all of the forms for the MMMP, however, you should regularly visit LARA s website to check for updates to the forms used in the operation of the MMMP. See under the Program tab for the Michigan Medical Marijuana Program. 5

6 Defenses Under the MMMA The basic defense under the MMMA is that a Caregiver can possess, for each Registered Patient who designates them as a Caregiver on a valid registry identification card through LARA s registration program, an amount of marijuana that does not exceed: 1. An amount of 2.5 ounces of usable marijuana; 2. Up to 12 plants kept in an enclosed, locked facility; and 3. Any incidental amount of seeds, stalks and unusable roots. Caregivers CAN NOT use their own product, unless they are a patient themselves and their own Caregiver. There is nothing in the MMMA that prohibits a Caregiver from serving up to 5 patients and having someone else serve as their Caregiver. Do not lose your driver s license or other state issued identification. Oddly enough, the defense available under the MMMA is technically applicable only if a Caregiver presents a valid Registry Identification Card and a valid driver s license or government identification card bearing a picture of the Caregiver. Proper maintenance of your patient cards and your own identification is essential. This is particularly true because every time a patient designates you as their Caregiver you must complete a Caregiver Attestation Form and provide your patient with a copy of your current identification to attach to their Application for Registry Identification Card. ALL of your cultivation activities, including the acquisition, possession, delivery, transfer or transportation of marijuana, in every instance, MUST relate to the use of marijuana to treat or alleviate a Registered Patient s serious or debilitating medical condition or symptoms therefrom. THERE IS NO RECREATIONAL USE OF MARIJUANA IN MICHIGAN! If you suspect that one of your Registered Patients is using their marijuana recreationally, rather than medicinally, you should take the steps outlined in the attached Patient Investigation Form to clarify this matter. 6

7 If you conclude that any of your Registered Patients have ceased using marijuana for solely medicinal purposes, you should immediately terminate the Caregiver relationship. This is because, notwithstanding the MMMA provision allowing for the possession of up to 2.5 ounces of usable marijuana, you are not allowed to possess on behalf of a Registered Patient any more than is reasonably necessary to treat and alleviate the patient s medical conditions. If the patient isn t using the marijuana for medicinal purposes, then you are not allowed to possess any usable marijuana on their behalf. This means that at all times you must be vigilant that your Registered Patients are using the marijuana that you grow for and transfer to them for true medicinal purposes. If you have a reason to believe that one of your Registered Patients is giving away or selling their medical marijuana then you must immediately terminate the Caregiver relationship. Minors As Patients The only minors you should have as patients are your own children. Only the parent or legal guardian can be the Caregiver for a minor patient. Minors are not allowed to be their own Caregivers and are not allowed to possess their own plants. Only the parent or legal guardian listed on the MMMP application is allowed to possess the minor patient s medical marijuana plants or usable marijuana. Even if you are a Caregiver and one of the parents, you must be THE parent designated on the card in order to grow for your child. The application process for minors is a bit more rigorous than for adults. In order for minors to become a Registered Patient, the parent or legal guardian must provide to LARA written consent in the form of a Declaration of Person Responsible for Minor Patient. Additionally, for minors to become registered, two physicians must certify that the patient will receive therapeutic or palliative benefit from the medical use of marijuana. Landlords Who Is Subject to Possession Limits: A person can be found to possess marijuana who does not own the marijuana. Only those persons, however, who exercise dominion and control over cultivation operations will be found to be in possession of the plants and usable 7

8 marijuana found therein. Therefore, landlords who are not involved in the operation of caregiver cultivation has little legal exposure. Landlords will not be found in possession of marijuana so long as they reasonably believe their Caregiver tenants are compliant with the MMMA and otherwise have no knowledge of the presence of marijuana exceeding the limits of the MMMA. Retail Sale of Marijuana (Dispensaries) The MMMA allows Caregivers to be reimbursed for costs associated with providing marijuana to their patients. The sale of marijuana, however, is not included in the MMMA s definition of the medical use of marijuana. Retail sales by dispensaries and patient-topatient sales are not protected by the MMMA. State v. McQueen, 293 Mich. App. 644, 669; 811 NW2d 513, 528 (2011), aff d 493 Mich 135; 828 NW2d 644 (2013). No marijuana may be sold to someone who is not allowed to use marijuana for medical purposes a dispensary is not allowed to use marijuana for medical purpose. Thus, all sales directly to a dispensary is not protected by the MMMA and is currently a felony. Registration with the MMMP Timelines According to Section 6(c) of the MMMA, the Health Licensing Division in the Bureau of Professional Licensing, LARA ( the Department ) must approve or deny an application for patient registry identification card with a period of 15 business days from receipt. If the application is going to be denied the Department mails the denial within 20 business days. The Department, in a Frequently Asked Questions section on their web site dated June 13, 2013, advised that: Once it has been 20 business days since the date the check or money order has been cashed, (if the patient has not received a certified letter of denial from the State), then in most cases, the patient (and if a Caregiver was designated on the application) has been approved. Pursuant to the Michigan Medicinal Marihuana Act and Administrative Rules, the copy of the application is deemed a valid registration card until the card is received. The patient (and if a Caregiver was designated on the application) should receive their registry ID cards within approximately 60 days. 8

9 Please be aware that not all law enforcement will accept a copy of the application, and you may consider waiting until the registry ID card is received or seek legal counsel before you proceed to obtain medicinal marijuana. If you experience substantial delays with the Department that are in substantial violation of the time lines in the MMMA, please contact our office. Miscellaneous Provisions of the MMMA to Note According to the MMMA, no person should ever: Operate any machinery or equipment after medicating if you are a Registered Patient; or Possess marijuana for any purpose in a school bus, on the grounds of any school (including preschool/day care) or in any correctional facility or jail. Infused Products - Amendment to MMMA (HB 4210) House Bill 4210, signed by Governor Snyder on September 21 and effective December 21, 2016, amends the MMMA to cover Marijuana-Infused Products. If one meets all of the other criteria, the defenses available in the MMMA now covers infused products, including: Topical Formulation; Tincture; Beverage; Edible Substance; or Similar product containing usable marijuana that is intended for human consumption in a manner other than smoke inhalation. As such, the definition of usable marijuana has been amended to now include plant resin or extract of the marijuana plant II. Impact of New Medical Marihuana Facilities Licensing Act On September 21, 2016, Michigan Governor Snyder signed legislation that will forever change the cannabis industry in Michigan - House Bills 4209 and HB 4209 is known as the Medical Marihuana Facilities Licensing Act and HB 4210 is an 9

together with a medical marijuana licensing board to oversee the licensees.

10 amendment to the MMMA that adds edibles to the definition of usable marijuana. The Basics The Medical Marihuana Facilities Licensing Act (MMFLA) creates a licensing structure for the cultivation, processing, secure transportation, testing and retail sale of medical marijuana, together with a medical marijuana licensing board to oversee the licensees. The possession limits of the MMMA will still apply under the new law and a statewide internet based monitoring system will be implemented to ensure that patients/caregivers do not exceed these limits. Under the MMFLA, all medical marijuana will be tracked and laboratory tested. All licensees will be required to adopt an inventory control and tracking system to interface with the state monitoring system to track all plants, products, packages, purchases, waste, transfers, sales and returns. Through this system, the state will have access to total daily sales data, total number of plants in production and/or destroyed and all inventory adjustments. The MMFLA creates three classes of grower licenses based on the number of marijuana plants grown: A Plants B - 1,000 Plants C - 1,500 Plants The Timeline The MMFLA is effective December 21, Beginning 360 days after that date the new state board will accept applications for operating licenses. We anticipate the state to issue rules and regulations in about August or September, 2017, and that licenses will be issued starting about February, City Ordinance is the Key The MMFLA states that a marihuana facility shall not operate in a municipality unless the municipality has adopted an ordinance that authorizes that type of facility. The municipality is allowed to authorize one or more types of marijuana facilities and to limit the number of each type of facility, but may not regulate purity or pricing. 10

Please note that this draft is incomplete and likely to change before and/or after City Planning Commission review.

Please note that this draft is incomplete and likely to change before and/or after City Planning Commission review. M E M O R A N D U M To: From: City Planning Commission Ordinance Review Committee Jill Thacher, City Planner Date: August 8, 2017 Re: DRAFT Medical Marijuana Zoning Ordinance Staff has drafted an ordinance