THE SENATE

S.B. NO.

1459

TWENTY-SIXTH LEGISLATURE, 2011

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to the medical use of marijuana.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


PART I.

     SECTION 1.  Chapter 329, Hawaii Revised Statutes, is amended by adding five new subparts to part IX to be appropriately designated and to read as follows:

"B.  Licensed Producers and Licensed Processors

     §329-A  Possession by licensed producers.  Provided they are acting in compliance with the terms of this part and rules adopted to enforce and carry out its purposes, licensed producers and their employees, members, officers, and directors may manufacture, plant, cultivate, grow, harvest, produce, prepare, propagate, process, package, repackage, transport, transfer, deliver, label, relabel, wholesale, or possess marijuana intended for medical use by qualifying patients, including seeds, seedlings, cuttings, plants, and useable marijuana, and shall not be arrested, searched, prosecuted, or subject to other criminal sanctions or civil consequences under state law, or have real or personal property searched, seized, or forfeited pursuant to state law, for such activities, notwithstanding any other provision of law.

     §329-B  Possession by licensed processors.  Provided they are acting in compliance with the terms of this part and rules adopted to enforce and carry out its purposes, licensed processors of marijuana products and their employees, members, officers, and directors may possess useable marijuana and manufacture, produce, prepare, process, package, repackage, transport, transfer, deliver, label, relabel, wholesale, or possess marijuana products intended for medical use by qualifying patients, and shall not be arrested, searched, prosecuted, or subject to other criminal sanctions or civil consequences under state law, or have real or personal property searched, seized, or forfeited pursuant to state law, for such activities, notwithstanding any other provision of law.

     §329-C  Powers of the director.  (a)  The director shall administer and implement this part and rules adopted hereunder.  The director may:

     (1)  Monitor and inspect the production, processing, weighing, packaging, labeling, storage, and shipping of all marijuana intended for medical use;

     (2)  Monitor and review the inspection and grading of all marijuana intended for medical use;

     (3)  Approve or disapprove the facilities, including scales, of all licensed producers and licensed processors;

     (4)  Investigate all complaints of fraud in the operation of the production facility or processing facility of any licensed producer or licensed processor;

     (5)  Examine, inspect, and audit, during ordinary business hours, any producer or processor licensed under this part, including all production facilities, processing facilities, and all marijuana therein, and examine, inspect, audit, or record all books, documents, and records;

     (6)  Administer oaths and issue subpoenas to compel the attendance of witnesses or the production of books, documents, and records anywhere in the State pursuant to a hearing for the purposes and provisions of this part.  Witnesses shall be entitled to fees for attendance and travel, as provided in section 621-7; and

     (7)  Adopt rules under chapter 91:

         (A)  Establishing inspection standards and procedures for marijuana intended for medical use;

          (B)  Regarding the identification of marijuana intended for medical use so that such marijuana may be readily identified if stolen or removed in violation of this part from a production or processing facility, or if otherwise unlawfully transported; and

          (C)  Necessary for carrying out the purposes of this part.

     (b)  The director is authorized to deny, suspend, or revoke a producer's or processor's license after a hearing in any case in which it is determined that there has been a violation or refusal to comply with the requirements of this part or rules adopted hereunder.  All hearings for the denial, suspension, or revocation of a producer's or processor's license are subject to chapter 91.

     §329-D  Licensed producers and processors; rules.  (a)  By July 1, 2012, taking into consideration the security requirements described in 21 C.F.R. 1301.71-1301.76, the director shall adopt rules, under chapter 91, regarding marijuana intended for medical use to:

     (1)  Prescribe grades and standards that are deemed suitable for inspection;

     (2)  Provide for inspection or grading and certification of grade, grading factors, condition, strain, cannabinoid profile, THC concentration, or other qualitative measurement;

     (3)  Fix the sizes, dimensions, and safety and security features required of containers to be used for packing, handling, or storing;

     (4)  Establish labeling requirements;

     (5)  Establish requirements for the licensure of producers and processors of marijuana products, setting forth procedures to obtain licenses, and determine expiration dates and renewal requirements;

     (6)  Provide for mandatory inspection of production and processing facilities;

     (7)  Establish requirements for transportation of marijuana from production facilities to processing facilities and licensed dispensers;

     (8)  Enforce and carry out this section and the rules adopted thereunder; and

     (9)  Establish license application and renewal fees adequate to recapture the cost to the State of implementing, maintaining, and enforcing this section and section 329-T, and the rules adopted thereunder.

     (b)  During the rulemaking process, the department shall consult with stakeholders and persons with relevant expertise, including qualifying patients, primary caregivers, health care professionals, state and local law enforcement agencies, and the department of health.

     §329-E  Records.  (a)  Each licensed producer and licensed processor shall maintain complete records at all times with respect to all marijuana produced, processed, weighed, tested, stored, shipped, or sold.  The director shall adopt rules under chapter 91 specifying the minimum recordkeeping requirements necessary to comply with this section.

     (b)  The property, books, records, accounts, papers, and proceedings of every licensed producer and licensed processor shall be subject to inspection by the department of public safety at any time during ordinary business hours.  Licensed producers and licensed processors shall maintain adequate records and systems for the filing and accounting of crop production, product manufacturing and processing, records of weights and measurements, product testing, receipts, canceled receipts, other documents, and transactions necessary or common to the medical marijuana industry.

     §329-F  Information reporting; marijuana inspection program.  Each licensed producer and licensed processor shall report information to the department of public safety at times that may be reasonably required by the director for the necessary enforcement and supervision of a sound, reasonable, and efficient marijuana inspection program for the protection of the health and welfare of qualifying patients.

     §329-G  Production and processing facilities.  The production facilities of a licensed producer and processing facilities of a licensed processor shall be maintained in a manner that provides a reasonable means of ingress and egress to all areas and equipment, and an adequate facility shall be provided to the department of public safety personnel to complete inspections.

     §329-H  Inspections; notice; penalties.  (a)  The department of public safety may give written notice to a licensed producer or licensed processor to submit to inspection, or furnish required reports, documents, or other requested information, under conditions and at times that the department deems necessary whenever a licensed producer or licensed processor fails to:

     (1)  Submit books, papers, or property for lawful inspection or audit;

     (2)  Submit required reports or documents to the department by their due dates; or

     (3)  Furnish the department with requested information.

     (b)  If the licensed producer or licensed processor fails to comply with the terms of the notice provided under subsection (a), within seventy-two hours from the date of its issuance, or within such further time as the department of public safety may allow, the department shall levy a fine of $500 per day from the final date for compliance allowed by this section or the department.  If the failure to comply continues for more than seven days, or if the director determines the failure to comply creates a threat to public health, public safety, or a substantial risk of diversion of marijuana to unauthorized persons or purposes, the department, in lieu of levying further fines, may petition a court of competent jurisdiction for an order:

     (1)  Authorizing the department to seize and take possession of all books, papers, marijuana, and property of all kinds used in connection with the conduct or the operation of the licensed producer's or licensed processor's business, and the books, papers, records, and property that pertain specifically, exclusively, and directly to that business; and

     (2)  Enjoining the licensed producer or licensed processor from interfering with the department in the discharge of its duties as required by this part.

     (c)  All necessary costs and expenses, including attorney's fees, incurred by the department of public safety in carrying out this section may be recovered at the same time and as part of the action filed under subsection (b).

     §329-I  Disposition of marijuana samples.  Samples of marijuana drawn by department inspectors, unless returned by agreement to the licensed producer or applicant for a license to produce, or to the licensed processor or applicant for a license to process, shall become the property of the State and subject to disposition by the department.  The department shall adopt rules under chapter 91 relating to sample retention and disposal.

     §329-J  Prohibited acts by department personnel.  (a)  Any department employee who, directly or indirectly, accepts any money or other consideration for any neglect or improper performance of duty in the person's capacity as a department employee shall be guilty of a misdemeanor.

     (b)  Any department employee who diverts or retains marijuana for personal use or sale shall be subject to the applicable criminal penalties.

     §329-K  Prohibited acts by licensed producers and licensed processors.  (a)  A licensed producer shall not sell or deliver marijuana to any person other than a department inspector, licensed processor, licensed dispenser, or law enforcement officer except as provided by court order.

     (b)  A licensed processor shall not sell or deliver marijuana to any person other than a department inspector, licensed dispenser, or law enforcement officer except as provided by court order.

     (c)  Violation of this section is a class C felony.

C.  Licensed Dispensers

     §329-L  Possession by licensed dispensers.  Provided they are acting in compliance with the terms of this part and rules adopted to enforce and carry out its purposes, licensed dispensers and their employees, members, officers, and directors may deliver, distribute, dispense, transfer, prepare, package, repackage, label, relabel, sell at retail, or possess marijuana intended for medical use by qualifying patients, including seeds, seedlings, cuttings, plants, useable marijuana, and marijuana products, and shall not be arrested, searched, prosecuted, or subject to other criminal sanctions or civil consequences under state law, or have real or personal property searched, seized, or forfeited pursuant to state law, for such activities, notwithstanding any other provision of law.

     §329-M  Licensed dispensers; rules.  (a)  By July 1, 2012, taking into consideration the security requirements described in 21 C.F.R. 1301.71-1301.76, the director shall adopt rules under chapter 91:

     (1)  Establishing requirements for the licensure of dispensers, setting forth procedures to obtain licenses, and determining expiration dates and renewal requirements;

     (2)  Providing for mandatory inspection of licensed dispensers' locations;

     (3)  Establishing procedures governing the suspension and revocation of licenses of dispensers;

     (4)  Establishing recordkeeping requirements for licensed dispensers;

     (5)  Fixing the sizes and dimensions of containers to be used for dispensing marijuana;

     (6)  Establishing safety standards for containers to be used for dispensing marijuana;

     (7)  Establishing marijuana storage requirements, including security requirements;

     (8)  Establishing marijuana labeling requirements;

     (9)  Establishing physical standards for marijuana dispensing facilities;

    (10)  Establishing physical standards for sanitary conditions for marijuana dispensing facilities;

    (11)  Establishing physical and sanitation standards for marijuana dispensing equipment;

    (12)  Enforcing and carrying out this section and the rules adopted thereunder; and

    (13)  Establishing license application and renewal fees adequate to recapture the cost to the State of implementing, maintaining, and enforcing this section and section 329-T and the rules adopted thereunder.

     (b)  During the rulemaking process, the department shall consult with stakeholders and persons with relevant expertise, including but not be limited to qualifying patients, primary caregivers, health care professionals, state and local law enforcement agencies, and the department of health.

     §329-N  Prohibited acts.  (a)  A licensed dispenser shall not sell marijuana received from any person other than a licensed producer or licensed processor, or sell or deliver marijuana to any person other than a qualifying patient or primary caregiver except as provided by court order.

     (b)  Violation of this section is a class C felony.

D.  Miscellaneous Provisions Applying to All Licensed

Producers, Licensed Processors, and Licensed Dispensers

     §329-O  Weights and measures.  All weighing and measuring instruments and devices used by licensed producers, licensed processors, and licensed dispensers shall comply with the requirements set forth in chapter 486.

     §329-P  Advertisement; prohibition; penalty.  (a)  No licensed producer, licensed processor, or licensed dispenser shall advertise marijuana for sale to the general public on broadcast television or radio in any manner that promotes or tends to promote the use or abuse of marijuana. For the purposes of this subsection, displaying marijuana, including artistic depictions of marijuana, is considered to promote or to tend to promote the use or abuse of marijuana.

     (b)  The department of public safety may fine a licensed producer, licensed processor, or licensed dispenser no more than $1,000 for each violation of subsection (a).

     §329-Q  Application for license; effect of convictions.  (a)  A prior conviction for an offense involving marijuana shall not disqualify an applicant from receiving a license to produce, process, or dispense marijuana for medical use; provided that the conviction did not include any sentencing enhancements under section 706-660.1, 706-660.2, 706-661, or analogous laws in other jurisdictions.

     (b)  Any criminal conviction of a current licensee may be considered in proceedings to suspend or revoke a license.

     §329-R  Violations; generally.  Violation of any section of this part, or any rule adopted thereunder, that relates to the licensing and regulation of producers, processors, or dispensers, where no other penalty is provided for, is a misdemeanor.

     §329-S  Civil penalties.  (a)  Any licensed producer, licensed processor, or licensed dispenser who fails to comply with this part, or any rule adopted thereunder, may be subject to a civil penalty, as determined by the director, in an amount of not to exceed $1,000 for each violation.  Each violation shall be a separate and distinct offense.

     (b)  Any person who, through an act of commission or omission, procures, aids, or abets in a violation under subsection (a) shall be considered to have violated this part and may be subject to the penalty provided for in subsection (a).

E.  Secure Registration of Licensed Producers, Licensed Processors, and Licensed Dispensers

     §329-T  Registration system; confidentiality.  (a)  The department of public safety shall:

     (1)  Create and maintain a secure and confidential list of licensed producers, licensed processors, and licensed dispensers; provided that:

         (A)  Except as provided in subparagraph (B), the list shall be confidential and exempt from public disclosure, inspection, or copying under chapters 91 and 92F; and

         (B)  Names and other personally identifiable information from the list may be released only to:

               (i)  Authorized employees of the department of public safety as necessary to perform official duties of the department; or

             (ii)  Authorized employees of state or local law enforcement agencies, only as necessary to verify that a person is a licensed producer, licensed processor, or licensed dispenser, or that a location is the recorded address of a production, processing, or dispensing facility owned or operated by a licensed producer, licensed processor, or licensed dispenser, and only after the inquiring state or local law enforcement employee has provided adequate identification;

     (2)  Develop a secure and confidential system by which authorized employees of state and local law enforcement agencies may verify at all times, after providing adequate identification, that a person is a licensed producer, licensed processor, or licensed dispenser, or that a location is the recorded address of a production, processing, or dispensing facility owned or operated by a licensed producer, licensed processor, or licensed dispenser;

     (3)  Maintain a log of all requests, for no less than three years from the date of the request, by employees of state and local law enforcement agencies for information relating to whether a person is a licensed producer, licensed processor, or licensed dispenser, or that a location is the recorded address of a production, processing, or dispensing facility owned or operated by a licensed producer, processor, or dispenser, and the information supplied.  Personally identifiable information of licensed producers, licensed processors, or licensed dispensers included in the log shall be confidential and exempt from public disclosure, inspection, or copying under chapters 91 and 92F, provided that the subject of a request for information may:

         (A)  Personally appear during ordinary department of public safety business hours and inspect or copy log records relating to the person upon adequate proof of identity; or

         (B)  Submit a written request to the department of public safety, along with adequate proof of identity, for copies of log records relating to the person; and

     (4)  Establish and collect reasonable fees for the dissemination of information to employees of state and local law enforcement agencies relating to whether a person is a licensed producer, licensed processor, or licensed dispenser, or that a location is the recorded address of a production, processing, or dispensing facility owned or operated by a licensed producer, processor, or dispenser, and for the dissemination of log records relating to such requests for information to the subjects of those requests; provided that authorized employees of state or local law enforcement agencies who obtain personally identifiable information from the list, as authorized under this section, shall not release or use the information for any purpose other than verification that a person is a licensed producer, licensed processor, or licensed dispenser, or that a location is the recorded address of a production, processing, or dispensing facility owned or operated by a licensed producer, processor, or dispenser.

     (b)  The registration system established in subsection (a) shall meet the following requirements:

     (1)  Any personally identifiable information included in the registration system shall be nonreversible, pursuant to definitions and standards set forth by the national institute of standards and technology;

     (2)  Any personally identifiable information included in the registration system shall not be susceptible to linkage by use of data external to the registration system;

     (3)  The registration system shall incorporate current best differential privacy practices, allowing for maximum accuracy of registration system queries while minimizing the chances of identifying the personally identifiable information included therein; and

     (4)  The registration system shall be upgradable and updated in a timely fashion to keep current with state of the art privacy and security standards and practices.

     §329-U  Verification of status prior to search or arrest.  (a)  Before obtaining a search warrant or arrest warrant and before making a warrantless arrest or warrantless search or seizure based on probable cause, a law enforcement officer investigating a marijuana-related incident shall ascertain whether the person or location under investigation is registered with the department of public safety as a qualifying patient, primary caregiver, licensed producer, licensed processor, as the primary residence of a qualifying patient or primary caregiver, or the address of a production or processing facility.

     If the department reports that the location or person is registered, the law enforcement officer shall not seek a warrant, unless evidence exists of conduct that would disqualify the location or person from the protections of this part, or probable cause exists that another criminal offense has been or is being committed.  If the officer seeks a warrant, the affidavit submitted in support of the application for the warrant shall include that registration checks were conducted with the department and the results of the checks.

     Registered persons shall not be arrested or searched, or have personal property searched or seized, and registered locations shall not be searched or seized, unless evidence exists of conduct that would disqualify the person from the protections of this part, or probable cause exists that another criminal offense has been or is being committed.

     (b)  If a law enforcement officer discovers marijuana at a location outside ordinary business hours of the department of public safety, and no person is present to provide verification information, the officer shall make reasonable efforts to contact the occupant of the location before seizing marijuana that falls within the limits described in section 329-127.

     §329-V  Prohibited acts; penalties; civil action.  (a)  Any person who discloses, disseminates, or allows to be inspected or copied personally identifiable information of a qualifying patient, primary caregiver, licensed producer, licensed processor, or licensed dispenser, except as authorized by this part, shall pay a civil penalty of $500 to the subject of the record containing the personally identifiable information.  This penalty shall apply separately to each such disclosure, dissemination, inspection, or copying of the record.

     (b)  Any law enforcement officer who fails to comply with section 329-U shall pay a civil penalty of $500 to any qualifying patient, primary caregiver, licensed producer, licensed processor, or licensed dispenser who is arrested or searched, or who has real or personal property searched or seized, if the person was currently registered at the time of the arrest, search, or seizure, no evidence existed at the time that would have disqualified the person from the protections of this part, and no probable cause existed at the time that another criminal offense had been or was being committed.

     (c)  A qualifying patient, primary caregiver, licensed producer, licensed processor, or licensed dispenser injured by any act subject to the penalties of this section shall be entitled to bring a civil action to pursue the remedies provided by this section.  A plaintiff who prevails on a claim brought under this section shall be entitled to recover reasonable attorney's fees and costs.  A defendant who prevails shall not be allowed to recover fees or costs unless the defendant proves, by a preponderance of the evidence, that the plaintiff initiated the action in bad faith or without any evidence whatsoever that would support a reasonable belief that the person was entitled to the remedies provided in this section.

F.  Preemption

     §329-W  Preemption.  The State fully occupies and preempts the entire field of authorizing and regulating the production, processing, dispensation, possession, and use of marijuana for medical purposes.  Counties may enact only those ordinances and regulations relating to the medical use of marijuana that are consistent with this part and administrative rules adopted thereunder.  County ordinances and regulations that are inconsistent with the requirements of state law and rules adopted pursuant to this part shall not be enacted and are preempted and repealed, regardless of the nature of the code or charter of the county.  This section does not preempt reasonable zoning requirements for licensed producers, licensed processors, and licensed dispensers that are adopted by counties pursuant to their authority and duties under section 46-4."

PART II.

     SECTION 2.  Chapter 92F, Hawaii Revised Statutes, is amended by adding a new section to part II to be appropriately designated and to read as follows:

     "§92F-     Medical use of marijuana; exception to general rule.  Records containing names and other personally identifiable information relating to qualifying patients, primary caregivers, and persons licensed as producers, processors, or dispensers of marijuana for medical use, under part IX of chapter 329 and rules adopted to carry out its purposes, are exempt from disclosure under this chapter."

     SECTION 3.  Chapter 237, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§237-     Exemption of sales of marijuana for medical use.  This chapter shall not apply to amounts received by dispensers of marijuana licensed under part IX, subpart C, of chapter 329, for sales of marijuana or marijuana products intended for medical use to qualifying patients or primary caregivers registered with the department of public safety under section 329-123."

     SECTION 4.  Chapter 329, part IX, Hawaii Revised Statutes, is amended by designating sections 329-121 to 329-128 as subpart A, entitled:

"A.  General Provisions"

     SECTION 5.  Section 329-121, Hawaii Revised Statutes, is amended by adding three new definitions to be appropriately inserted and to read as follows:

     ""Licensed dispenser" means a nonprofit corporation licensed to dispense marijuana for medical use to qualifying patients and primary caregivers by the department of public safety in accordance with rules adopted by the department pursuant to the terms of this part.

     "Licensed processor" means a person licensed by the department of public safety to manufacture, process, handle, and label marijuana products for wholesale to licensed dispensers.

     "Licensed producer" means a person licensed by the department of public safety to produce marijuana for medical use for wholesale to licensed dispensers and licensed processors in accordance with rules adopted by the department pursuant to the terms of this part."

PART III.

     SECTION 6.  (a)  The auditor shall conduct a cost-benefit evaluation of the implementation of chapter 329, part IX, Hawaii Revised Statutes, as amended by this Act, and the rules adopted to carry out its purposes.

     (b)  The cost-benefit evaluation shall include but not be limited to the following factors:

     (1)  Qualifying patients' access to an adequate source of marijuana for medical use;

     (2)  Qualifying patients' access to a safe source of marijuana for medical use;

     (3)  Qualifying patients' access to a consistent source of marijuana for medical use;

     (4)  Qualifying patients' access to a secure source of marijuana for medical use;

     (5)  Qualifying patients' and primary caregivers' contact with law enforcement and involvement in the criminal justice system;

     (6)  Diversion of marijuana intended for medical use to non-medical uses; and

     (7)  Incidents of home invasion burglaries, robberies, and other violent and property crimes associated with qualifying patients accessing marijuana for medical use.

     (c)  For the purposes of facilitating this evaluation, the department of public safety shall make available to the auditor all requested data and any other data the department may consider relevant, from which all personally identifiable information shall be redacted.

     (d)  The auditor shall report its findings and recommendations, including any proposed legislation, to the legislature not later than twenty days prior to the convening of the 2014 regular session.

PART IV.

     SECTION 7.  If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 8.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 9.  In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 10.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 11.  This Act shall take effect on July 1, 2011.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Medical Marijuana; Licensure of Producers, Processors, and Dispensers; Evaluation

 

Description:

Establishes licensure of producers, processors, and dispensers of medical marijuana.  Requires secure registration system.  Reserves authority to regulate medical use of marijuana to the State.  Directs the auditor to conduct a cost-benefit evaluation.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.