Boston | Hartford | New York | Providence | Stamford | Albany | Los Angeles | Miami | New London | rc.com © 2015 Robinson & Cole LLPrc.com F EBRUARY 19, 2016 K ARLA L. C HAFFEE F EBRUARY MAPD L UNCH N L EARN P ROGRAM Planning for Medical Marijuana Facilities in Massachusetts

22 An Act for the Humanitarian Medical Use of Marijuana

33 STATUS: An Act for the Humanitarian Medical Use of Marijuana As of October 1, 2015: 13,607 registered and active patients  Based on Colorado’s experience, Massachusetts projects that 2% of the population (132,000 people) will qualify as registrants. 554 registered and active caregivers 19,783 active physician certifications issued

44 STATUS: An Act for the Humanitarian Medical Use of Marijuana The State’s 6 th dispensary opened this week in Lowell (Patriot Care Corp.) Salem (Alternative Therapies Group Inc.) (cultivation in Amesbury) Brockton (Good Health, Inc.) Northampton (New England Treatment Access, Inc.) (cultivation in Franklin) Ayer (Central Ave Compassionate Center, Inc.) Brookline (New England Treatment Access) (cultivation in Franklin)

55 Coming soon Fairhaven (Co-locate) Quincy (Co-locate) Newton (Retail) & Fitchburg (Cultivation) Georgetown (Co-locate) Brockton* (Co-locate) Taunton (Retail) & Holbrook (Cultivation) Mashpee (Retail) & Plymouth (Retail & Cultivation) Dennis (Retail) & Plymouth (Retail & Cultivation) Milford (Co-locate) Boston (Retail) & Lowell (Cultivation) Greenfield (Retail) & Lowell (Cultivation)

66 Why has implementation taken so long? state rule requiring dispensary applicants to get a letter of approval or a less enthusiastic statement of ‘nonopposition’ from community leaders has mired the process in local politics. “Nichole Snow, executive director of the Massachusetts Patient Advocacy Alliance, said the state rule requiring dispensary applicants to get a letter of approval or a less enthusiastic statement of ‘nonopposition’ from community leaders has mired the process in local politics.” Boston Globe, Feb. 16, 2016

77 The Act Requires…. Between one and 5 RDMs per county “Hardship” cultivation Buffers of 500 feet from facilities where “children commonly congregate” Stocks based on projected need Annual registration renewal Online registration for patients, caregivers, physicians and dispensary agents

88 Becoming a Registered Marijuana Dispensary Requirements:  Non-profit  Vertically integrated Process:  Application ● Siting Profile ● Letter of Support or Non-Opposition  Inspection Phase/ Local permitting  Final Certificate of Registration  Approval to Sell

9 Local Regulation Consistent with State Law “If state law preempts local law, why can’t we tell the state that federal law trumps them?” Why should municipalities zone for marijuana facilities?  Collateral deterioration, property damage from alterations, and resulting value loss – multiplied throughout an area  Federally authorized property seizures  Effects on resale value(s) and price(s)  Predictability and compatibility with community  Safety (of the facility and patients)  Access / public transit

10 Municipal Options Do Nothing Moratorium (This ship has sailed) Pass consistent local regulation “Although we conclude that a municipality may not completely ban such centers within its borders, we also conclude that municipalities are not prohibited from adopting zoning by-laws to regulate medical marijuana treatment centers, so long as such zoning by-laws do not conflict with the Act …..” Attorney General decision (March 13, 2013)

11 Zoning: Drafting What makes for strong zoning ordinances? Zoning Regulations Clear “Purpose” Well developed “Findings” sections

12 Municipal Options What laws conflict with Massachusetts’ Act?  Prohibition ● Compliance with federal law  Some local registration requirements  Home-cultivation special permit or other limitation  Prohibition on home delivery  Certain screening requirements  Compromises to facility security  “Mitigation” payments

13 Municipal Options What can a municipality regulate?  Reasonable hours of operation  Reasonable buffer requirements  Dimensional requirements  Designate zones  Traffic & circulation  Design review  Signage & lighting  The Act also requires coordination with local law enforcement

14 Summary: Drafting Keep in mind: Supremacy and Preemption To avoid preemption by state, local zoning ordinances should:  Avoid direct conflict with state statutory scheme  Be aware of rights created by state statute To avoid preemption by state, local zoning ordinances should not:  Permit conduct which state prohibits  Prohibit conduct which state permits  Penalize conduct which state exempts from penalty

15 What to expect with recreational legalization?

16 23 States and the District of Columbia: State Laws Legalizing Medical Marijuana Alaska Arizona California Colorado Connecticut Delaware Hawaii Illinois Maine Maryland Massachusetts Michigan Minnesota Montana Nevada New Hampshire New Jersey New Mexico New York Oregon Rhode Island Vermont Washington District of Columbia

17 State Laws: Status of Marijuana Laws

18 Cases Interpreting the CSA Gonzales v. Raich, 545 U.S. 1 (2005) “[W]e have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.”

19 Cases Interpreting the CSA Compare: Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 US 418 (2006) “The well-established peyote exception also fatally undermines the Government's broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA.”

20 Obama Administration’s Position DOJ guidance: at times inconsistent with Supreme Court guidance, and at times inconsistent with one another  2009: instruction not to focus enforcement on individuals in compliance with state laws (known as the “Non-Enforcement Policy”)  2011: reminder that, regardless of state law, any marijuana-related business violates the Controlled Substances Act  2013: identifying eight areas on which any enforcement should focus; instruction to consider compliance with state laws  2014: providing banking services might be subject to prosecution Overall: a focus on eight priorities, a trend against enforcing activities

21 Are the times changing? (Images courtesy of the Marijuana Policy Project)

22 Higher visibility = cultural change?

23 Remind you of anything?

24 Is dope the next craft beer?

25 “Artisanal” Edibles “You're not going to see Joe Camel in Massachusetts,” Evans said. “Or Joe Cannabis.”

26 KARLA L. CHAFFEE ROBINSON & COLE LLP ONE BOSTON PLACE, 25TH FLOOR BOSTON, MA DIRECT BLOG: Discussion & Questions?