TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO HEALTH.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. On June 14, 2000, Act 228, Session Laws of Hawaii 2000, was signed into law, making Hawaii one of the first states to permit the medical use of marijuana by registered patients. No changes have been made to Hawaii's medical marijuana law since its inception, while registered patients have increased and more states have enacted more comprehensive medical marijuana laws. In summary, the current law allows for the growth, transport, and possession of marijuana for medical purposes by qualified patients and caregivers.
The medical cannabis working group was charged with completing the mission originally assigned to the medical cannabis task force under Act 29, Special Session Laws of Hawaii 2009, which was enacted over a veto by the governor. The medical cannabis task force was never convened and therefore, the medical cannabis working group examined current state statutes, state administrative rules, and all county policies and procedures relating to the medical marijuana program and issues and obstacles encountered by qualifying patients, physicians, caregivers, and law enforcement officials. The medical cannabis working group also compared and contrasted Hawaii's medical marijuana program with all other states' medical marijuana programs. According to the findings of the February 2010 "Medical Cannabis Working Group Report to the Hawai‘i State Legislature", immediate action should be taken by the legislature to improve Hawaii's medical cannabis program.
Foremost, the medical cannabis working group recommends the creation of a state regulated medical marijuana distribution system so that qualifying patients have safe and reliable access to medical marijuana. Currently, fourteen states have enacted laws allowing the use of marijuana for medical purposes. In addition, Maine, Rhode Island, New Jersey, New Mexico, Colorado, Washington, D.C., and California have laws regulating the distribution of medical marijuana to qualified patients. The medical cannabis working group found after compiling patient, caregiver, and physician information that patients do not have access to a safe and legal supply of medicine. Rather, patients are often forced to find black market sources where risk of violence and robbery exist. Many patients receive low quality cannabis that is ineffective as medication. Patients' physical limitations and illness often prevent or inhibit them from growing medical cannabis. Further, it is almost impossible for most patients and caregivers to acquire the expertise, time, and intense cultivation skills required to produce an adequate supply of medical cannabis that is medically effective.
For purposes of the health, public safety, and social and economic welfare of the State, a fully integrated cultivation and distribution program would regulate access to medical marijuana more safely and effectively, and generate jobs and revenue to provide resources for other state programs.
The purpose of this Act is to establish a five-year pilot program in one county within the department of public safety to regulate the distribution of medical marijuana.
SECTION 2. (a) There shall be established within the department of public safety for administrative purposes the medical marijuana distribution pilot program for purposes of regulating the distribution of medical marijuana. The distribution pilot program shall be established and implemented in county no later than August 7, 2012. The pilot program shall:
(1) Provide a safe and accessible distribution system for qualifying patients by requiring qualifying patients to access medical marijuana through the compassion center established pursuant to this Act;
(2) Establish a medical marijuana compassion center license for selling medical marijuana to qualifying patients to be issued to the compassion center established pursuant to this Act;
(3) Collect from the licensee an initial licensing fee of $ for a medical marijuana compassion center license;
(4) Establish a compassion center in county;
(5) Ensure that all medical marijuana distributed through the distribution program is produced by the licensee;
(6) Ensure that the compassion center provides medical marijuana exclusively to qualifying patients and primary caregivers, and to other non-Hawaii qualifying patients holding a temporary registration certificate;
(7) Prohibit any person who has had a felony drug conviction or any person convicted of any felony in the immediately preceding ten years from obtaining or renewing a license;
(8) Prohibit individuals who are less than twenty-one years of age from being a licensee or an employee or director of the licensed facility;
(9) Establish inspection criteria for the business premises of the licensed facility;
(10) Require the licensee to submit annual reports of their financial transactions to the department;
(11) Ensure that the licensee is permitted to possess sufficient medical marijuana or marijuana plants to reasonably guarantee an adequate supply;
(12) Establish security procedures to monitor medical marijuana;
(13) Establish procedures to allow out-of-state visitors who are qualifying patients or primary caregivers in their home state to obtain a temporary registration certificate valid for the length of time of the visit, upon payment of a $100 administrative fee; and
(14) Prohibit medical marijuana from being transported out of county.
(b) As used in this Act:
"Adequate supply" means an amount of marijuana jointly possessed by the qualifying patient and the compassion center that is not more than is reasonably necessary to assure the uninterrupted availability of marijuana for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition; provided that an "adequate supply" shall not exceed:
(1) Seven marijuana plants and six ounces of usable marijuana per compassion center per qualifying patient per fourteen day period; and
(2) Seven marijuana plants and two ounces of usable marijuana per plant per qualifying patient.
"Compassion center" and "compassion care center" means a medical marijuana compassion center licensee, other than the qualifying patient and the qualifying patient's physician, who has agreed to be the primary caregiver of the qualifying patient.
"Department" means the department of public safety.
"Medical marijuana" means marijuana for medical use by a qualified patient upon issuance of a written certification by a licensed physician to the qualified patient pursuant to part IX of chapter 329, Hawaii Revised Statutes.
"Medical marijuana-infused product" means a product regulated by the department that contains medical marijuana and is intended for medical use by means other than smoking. The term includes edible products, ointments, and tinctures. A medical marijuana-infused product shall be exempt from section 328-14, Hawaii Revised Statutes; provided that the product is labeled as containing marijuana for medical use and specifies the potency and quantity in grams of the active ingredients.
"Primary caregiver" and "qualifying patient" means the same as that in section 329-121.
(c) No business or nonprofit entity shall cultivate, distribute, manufacture, or sell marijuana for medical use or manufacture a medical marijuana-infused product without a license issued by the department. The department may suspend or revoke any license that is not in substantial compliance with this Act. The medical use of marijuana under part IX of chapter 329, Hawaii Revised Statutes, shall not require a license under this Act.
(d) The department shall assess and collect an annual fee of $ for the issuance of a medical marijuana compassion center license and a fee for annual renewal of a license in the same amount. All fees collected shall be transferred to the county of .
(e) The amount of marijuana that may be sold for medical use or in a medical marijuana-infused product at any one time to a qualifying patient or primary caregiver for use by a qualifying patient shall not exceed an adequate supply.
(f) Medical marijuana and medical marijuana-infused products shall not be used or consumed on any business premises of a licensee.
(g) No licensee shall be subject to criminal prosecution for activities conducted in compliance with this Act.
(h) There is established a medical marijuana compassion center license to be issued to one entity. The requirements for the license shall be as follows:
(1) The license may be issued to a business or nonprofit entity to sell marijuana for medical use by a registered qualifying patient; provided that the sale occurs on the licensee's business premises;
(2) Prior to initiating a sale to a qualifying patient, a trained employee of the licensee making the sale shall verify that the purchaser is a qualifying patient who has a valid written certification under section 329-122, Hawaii Revised Statutes, and presents a valid picture identification card that matches the name on the written certification;
(3) All marijuana sold by a licensee shall be labeled with a list of all chemical additives, including nonorganic pesticides, herbicides, and fertilizers, that were used in the cultivation and the production of the marijuana;
(4) Qualifying patients shall access medical marijuana through a designated licensee; and
(5) All food and other consumables sold on the licensed premises shall be regulated by the department and the federal Food and Drug Administration.
(i) The licensee shall not be permitted to transfer the license.
(j) No applicant for a license shall be eligible for issuance or renewal of a license under this section if:
(1) The issuance or renewal fee for the license has not been paid within thirty days of the payment due date;
(2) A criminal history check conducted pursuant to subsection (k) indicates that the applicant, director, officer, of other employee of the applicant has been convicted of any felony drug offense or any felony in the immediately preceding ten years from obtaining a license;
(3) The applicant, director, officer, or other employee of the applicant is under twenty-one years of age;
(4) The applicant failed to pay any taxes, interest, or penalties due to a government agency or failed to pay any amount due to a government agency pursuant to a judgment or order; or
(5) The applicant, director, officer, or other employee of the applicant is a law enforcement officer or an employee of the department of public safety or the department.
(k) The department shall conduct a criminal history record check pursuant to chapter 846, Hawaii Revised Statutes, on each applicant for a license or renewal of a license and on other persons associated with the applicant as specified in this subsection. No person who has had a felony drug conviction or who has been convicted of any felony in the immediately preceding ten years shall be eligible to obtain or renew any license under this Act. Every applicant for a license or renewal of a license, including the applicant's employees, directors, owners, principals, partners, and stockholders shall undergo a criminal history record check under section 846-2.7, Hawaii Revised Statutes.
(l) Any medical marijuana shall be labeled at all times with at least a listing of the type of strain and the non-organic ingredients used to grow the marijuana.
(m) Every licensee shall keep a complete set of all records of the business transactions of the licensee regarding medical marijuana, including dispensing records and patients' registry information. Photocopies of all written certifications shall be maintained in a database and shall be available to law enforcement at any time without notice. The records shall be subject to inspection by the department at any time without notice. The department may conduct an audit of the licensee's business records.
All records relating to a transaction shall be kept by the licensee for a period of not less than five years following that transaction; provided that all records shall be kept confidential.
(n) The business premises of any licensee shall be subject to unannounced inspections by the department. The department may review the licensee's confidential records, including dispensing records identified by a qualifying patient's registry number to protect confidentiality.
(o) All sales of medical marijuana sold by the licensee pursuant to this Act shall be subject to a tax under chapter 237, Hawaii Revised Statutes; provided that in addition to the tax imposed under chapter 237, an additional amount of tax shall be assessed at a rate to be calculated by multiplying the gross proceeds of sales of medical marijuana by a rate of thirty per cent. All taxes collected pursuant to this subsection shall be paid to the director of taxation for deposit into the general fund. The licensee shall maintain and certify required records of sales and income for purposes of chapter 237, Hawaii Revised Statutes.
(p) The licensee shall implement appropriate security and safety measures to deter and prevent the theft of marijuana and the unauthorized entrance onto the licensee's business premises. The licensee shall:
(1) Install video surveillance cameras that operate twenty-four hours per day, seven days per week, and that provide a live video feed of the facilities operation are accessible to law enforcement agencies. Each camera shall have seventy-two hours of storage capacity;
(2) Install an alarm system for break-ins that is connected to an alarm company to alert law enforcement of break-ins;
(3) Store marijuana in a locked area on the premises; and
(4) Be responsible for costs incurred for the installation and maintenance of security, including providing the continuous live video feed of the facilities' operations to local law enforcement.
(q) The licensed facility shall not be located within six hundred yards of any day care facility, preschool, or public or private school. There shall be no use of medication on the premises of the facility.
(r) The directors, agents, and employees of the licensee shall be exempt from state criminal prosecution for possession, production, delivery, and transportation of marijuana; aiding and abetting another in the possession, production, delivery, and transportation of marijuana; or any other criminal offense in which possession, production, delivery, or transportation of marijuana is an element, if the activities are in substantial compliance with this Act; provided that the following activities shall be subject to criminal prosecution:
(1) Driving a motor vehicle while under the influence of marijuana;
(2) Engaging in the production, possession, or distribution of marijuana in public view;
(3) Distributing marijuana to any individual who the deliverer knows or should have known does not possess a written certification;
(4) Manufacturing or distributing marijuana at an address not registered with the department; and
(5) Failing to report otherwise legal sales of medical marijuana to the department.
(s) The department may adopt rules pursuant to chapter 91, Hawaii Revised Statutes, necessary to carry out the purposes of this Act. The department may convene a task force to study and advise on drafting the department rules. The task force may include a representative of the department of health and an operator or other person with experience operating or regulating compassion centers in other jurisdictions.
(t) The pilot project shall cease to exist no later than five years after the date of implementation.
(u) The department shall submit to the legislature:
(1) A status report on the pilot project with findings and recommendations, including proposed legislation that may be necessary, no later than twenty days prior to the convening of the 2013, 2014, 2015, and 2016 regular sessions; and
(2) A final report on the pilot project with findings and recommendations, including proposed legislation, if any, no later than twenty days prior to the convening of the 2017 regular session.
SECTION 3. Section 846-2.7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) Criminal history record checks may be conducted by:
(1) The department of health on operators of adult foster homes or developmental disabilities domiciliary homes and their employees, as provided by section 333F-22;
(2) The department of health on prospective employees, persons seeking to serve as providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health services as provided by section 321‑171.5;
(3) The department of health on all applicants for licensure for, operators for, prospective employees, and volunteers at one or more of the following: skilled nursing facility, intermediate care facility, adult residential care home, expanded adult residential care home, assisted living facility, home health agency, hospice, adult day health center, special treatment facility, therapeutic living program, intermediate care facility for the mentally retarded, hospital, rural health center and rehabilitation agency, and, in the case of any of the above facilities operating in a private residence, on any adult living in the facility other than the client as provided by section 321-15.2;
(4) The department of education on employees, prospective employees, and teacher trainees in any public school in positions that necessitate close proximity to children as provided by section 302A-601.5;
(5) The counties on employees and prospective employees who may be in positions that place them in close proximity to children in recreation or child care programs and services;
(6) The county liquor commissions on applicants for liquor licenses as provided by section 281-53.5;
(7) The department of human services on operators and employees of child caring institutions, child placing organizations, and foster boarding homes as provided by section 346-17;
(8) The department of human services on prospective adoptive parents as established under section 346‑19.7;
(9) The department of human services on applicants to operate child care facilities, prospective employees of the applicant, and new employees of the provider after registration or licensure as provided by section 346‑154;
(10) The department of human services on persons exempt pursuant to section 346-152 to be eligible to provide child care and receive child care subsidies as provided by section 346-152.5;
(11) The department of human services on operators and employees of home and community-based case management agencies and operators and other adults, except for adults in care, residing in foster family homes as provided by section 346-335;
(12) The department of human services on staff members of the Hawaii youth correctional facility as provided by section 352-5.5;
(13) The department of human services on employees, prospective employees, and volunteers of contracted providers and subcontractors in positions that place them in close proximity to youth when providing services on behalf of the office or the Hawaii youth correctional facility as provided by section 352D-4.3;
(14) The judiciary on employees and applicants at detention and shelter facilities as provided by section 571-34;
(15) The department of public safety on employees and prospective employees who are directly involved with the treatment and care of persons committed to a correctional facility or who possess police powers including the power of arrest as provided by section 353C-5;
(16) The department of public safety on each applicant for a license or renewal of a license for a compassion center as defined in section 2(b) of Act , Session Laws of Hawaii, 2011, and on the applicant's employees, directors, owners, principals, partners, and stockholders;
(16)] (17) The department of commerce
and consumer affairs on applicants for private detective or private guard
licensure as provided by section 463‑9;
(17)] (18) Private schools and
designated organizations on employees and prospective employees who may be in
positions that necessitate close proximity to children; provided that private
schools and designated organizations receive only indications of the states
from which the national criminal history record information was provided pursuant
to section 302C-1;
(18)] (19) The public library system on
employees and prospective employees whose positions place them in close
proximity to children as provided by section 302A-601.5;
(19)] (20) The State or any of its
branches, political subdivisions, or agencies on applicants and employees
holding a position that has the same type of contact with children, vulnerable
adults, or persons committed to a correctional facility as other public
employees who hold positions that are authorized by law to require criminal history
record checks as a condition of employment as provided by section 78-2.7;
(20)] (21) The department of human
services on licensed adult day care center operators, employees, new employees,
subcontracted service providers and their employees, and adult volunteers as
provided by section 346-97;
(21)] (22) The department of human
services on purchase of service contracted and subcontracted service providers
and their employees serving clients of the adult and community care services
branch, as provided by section 346-97;
(22)] (23) The department of human
services on foster grandparent program, retired and senior volunteer program,
senior companion program, and respite companion program participants, as
provided by section 346-97;
(23)] (24) The department of human
services on contracted and subcontracted service providers and their current
and prospective employees that provide home and community-based services under
Section 1915(c) of the Social Security Act, Title 42 United States Code
Section 1396n(c), or under any other applicable section or sections of the
Social Security Act for the purposes of providing home and community-based
services, as provided by section 346-97;
The department of commerce and consumer affairs on proposed directors and
executive officers of a bank, savings bank, savings and loan association, trust
company, and depository financial services loan company as provided by section
The department of commerce and consumer affairs on proposed directors and
executive officers of a nondepository financial services loan company as
provided by section 412:3‑301;
The department of commerce and consumer affairs on the original chartering
applicants and proposed executive officers of a credit union as provided by
(27)] (28) The department of commerce
and consumer affairs on:
(A) Each principal of every non-corporate applicant for a money transmitter license; and
(B) The executive officers, key shareholders, and managers in charge of a money transmitter's activities of every corporate applicant for a money transmitter license,
as provided by section 489D-9;
The department of commerce and consumer affairs on applicants for licensure and
persons licensed under title 24;
(29)] (30) The Hawaii health systems
(B) Applicants seeking employment;
(C) Current or prospective members of the corporation board or regional system board; or
(D) Current or prospective volunteers, providers, or contractors,
in any of the corporation's health facilities as provided by section 323F-5.5;
(30)] (31) The department of commerce
and consumer affairs on:
(A) An applicant for a mortgage loan originator license; and
(B) Each control person, executive officer, director, general partner, and manager of an applicant for a mortgage loan originator company license,
as provided by chapter 454F; and
Any other organization, entity, or the State, its branches, political
subdivisions, or agencies as may be authorized by state law."
SECTION 4. 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 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect on July 1, 2050; provided that upon the termination of the medical marijuana distribution pilot program established in section 2 of this Act, section 3 of this Act shall be repealed and reenacted in the form in which it read on the day before the approval of this Act.
Medical Marijuana Compassion Center; Pilot Program
Establishes a comprehensive five-year medical marijuana distribution pilot program in an unspecified county. Effective July 1, 2050. (SB1458 HD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.