SENATE, No. 119

STATE OF NEW JERSEY

213th LEGISLATURE

 PRE-FILED FOR INTRODUCTION IN THE 2008 SESSION

 

Sponsored by:

Senator NICHOLAS P. SCUTARI

District 22 (Middlesex, Somerset and Union)

Senator JIM WHELAN

District 2 (Atlantic)

Assemblyman  REED GUSCIORA

District 15 (Mercer)

Assemblyman  MICHAEL PATRICK CARROLL

District 25 (Morris)

Assemblywoman  JOAN M. VOSS

District 38 (Bergen)

 

Co-Sponsored by:

Senators Cunningham, Lesniak, Stack, Sweeney, Weinberg, Vitale, Assemblywoman Vainieri Huttle, Assemblyman Giblin, Assemblywomen Wagner, Oliver, Assemblyman Prieto, Assemblywoman Tucker, Assemblyman Johnson, Assemblywomen Jasey and Stender

SYNOPSIS

“New Jersey Compassionate Use Medical Marijuana Act.”

 

CURRENT VERSION OF TEXT

As amended by the General Assembly Senate on January 7, 2010.

AN ACT concerning the medical use of marijuana 2[and supplementing Title 24 of the Revised Statutes] 3and3 revising parts of statutory law2.

 

BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:

 

1.    This act shall be known and may be cited as the “New Jersey Compassionate Use Medical Marijuana Act.”

2.    3(New section)3 The Legislature finds and declares that:

a.     Modern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions, as found by the National Academy of Sciences’ Institute of Medicine in March 1999;

b.    According to the U.S. Sentencing Commission and the Federal Bureau of Investigation, 99 out of every 100 marijuana arrests in the country 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 marijuana2[.];2

c.     Although federal law currently prohibits the use of marijuana, the laws of Alaska, California, Colorado, Hawaii, Maine, 1Michigan, Montana,1 Nevada, 1New Mexico,1 Oregon, 1Rhode Island,1 Vermont,1and1 Washington 1[and Montana]1 permit the use of marijuana for medical purposes, and in Arizona doctors are permitted to prescribe marijuana.  New Jersey joins this effort for the health and welfare of its citizens2[.];2

d.    States are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law; therefore, compliance with this act does not put the State of New Jersey in violation of federal law2[.]; and2

e.     Compassion dictates that a distinction be made between  medical and non-medical uses of marijuana.  Hence, the purpose of this act is to protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients 1who use marijuana to alleviate1 suffering from debilitating medical conditions, 1[and] as well as1 their physicians 1[and2[,1 primary caregivers,]2 1[if such patients engage in the medical use of marijuana] 3, primary caregivers,3 and those who are authorized to produce marijuana for medical purposes1.

2[3.  As used in this act:

“Bona fide physician-patient relationship” means a physician has completed a full assessment of the patient's medical history and current medical condition, including a personal physical examination.

“Commissioner” means the Commissioner of Health and Senior Services.

“Debilitating medical condition” means:

(1)   cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

(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 or chronic 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 or Crohn's disease; or

(3) any other medical condition or its treatment that is approved by the department by regulation.

“Department” means the Department of Health and Senior Services.

“Marijuana” has the meaning given in section 2 of the “New Jersey Controlled Dangerous Substances Act,” P.L.1970, c.226 (C.24:21-2).

1“Medical marijuana alternative treatment center” or “alternative treatment center” means an entity registered pursuant to section 5 of this act, which acquires, possesses, cultivates, manufactures, delivers, transfers, transports, supplies, or dispenses marijuana or related supplies and educational materials to registered patients or their registered primary caregivers.1

“Medical use” means the acquisition, possession, cultivation, manufacture, use, delivery, transfer1[,]1 or transportation of marijuana or paraphernalia relating to a qualifying patient’s consumption of marijuana to alleviate the symptoms or effects of the patient’s debilitating medical condition.

“Physician” means a person licensed to practice medicine and surgery pursuant to Title 45 of the Revised Statutes.

“Primary caregiver” or “caregiver” means a person who is at least 18 years old, who has never been convicted of a felony drug offense, has agreed to assist with a qualifying patient’s medical use of marijuana and has been designated as primary caregiver on the qualifying patient’s application or renewal for a registry identification card or in other written notification to the department.  A primary caregiver shall only have one qualifying patient at any one time.  “Primary caregiver” shall not include the qualifying patient’s physician.

“Qualifying patient” or “patient” means a person who has been diagnosed by a physician as having a debilitating medical condition.

“Registry identification card” means a document issued by the department that identifies a person as a qualifying patient or primary caregiver, and shall include a registry identification card or its equivalent, issued by another state government to permit the medical use of marijuana by a qualifying patient or to permit a person to assist with a qualifying patient’s medical use of marijuana.

“Usable marijuana” means the dried leaves and flowers of marijuana, and any mixture or preparation thereof, and does not include the seeds, stalks and roots of the plant.

“Written certification” means the qualifying patient’s medical records, or a statement signed by a physician with whom the patient has a bona fide physician-patient relationship, stating that in the physician’s professional opinion, after having completed a full assessment of the qualifying patient’s medical history and current medical condition, the qualifying patient has a debilitating medical condition for which recognized drugs or treatments are not or would not be effective  and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient.]2

 

2[4.  a. (1)  A qualifying patient 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 professional licensing board, for the medical use of marijuana, provided that the patient possesses a registry identification card and no more than six marijuana plants and one ounce of usable marijuana.

(2)  There shall exist a rebuttable presumption that a qualifying patient is engaged in the medical use of marijuana if he possesses a registry identification card and no more than six marijuana plants and one ounce of usable marijuana.  The presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of alleviating the symptoms or effects of a patient's debilitating medical condition.

(3)  A qualifying patient may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana unless the patient was in violation of section 1[5] 7 of this act when the events giving rise to the prosecution occurred.  The defense shall be presumed valid where the evidence shows that:

(a) at the time of the events giving rise to the prosecution, the patient’s medical records indicated or a physician stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient; and

(b) the patient and his caregiver, if any, were collectively in possession of no more than six marijuana plants and one ounce of usable marijuana.

(4)  Possession of, or application for, a registry identification card shall not alone constitute probable cause to search the person or the property of the person possessing or applying for the registry identification card, or otherwise subject the person or his property to inspection by any governmental agency.

(5)  The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of marijuana determined to exist by the department, shall not apply if a qualifying patient has in his possession a registry identification card and no more than six marijuana plants and one ounce of usable marijuana1, or if an alternative treatment center permit holder has in his possession no more than six marijuana plants and one ounce of usable marijuana per registry identification card holder1.

b.  The provisions of subsection a. of this section shall not apply to a qualifying patient under the age of 18 years, unless:

(1) the patient’s physician has explained to the patient and the patient’s custodial parent, guardian, or person having legal custody, the potential risks and benefits of the medical use of marijuana; and

(2) the custodial parent, guardian, or person having legal custody consents in writing to: allow the patient’s medical use of marijuana; serve as the patient’s primary caregiver; and control the acquisition, dosage, and frequency of the medical use of marijuana by the patient.

c.  (1)  A primary caregiver who has in his 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 professional licensing board, for assisting a qualifying patient to whom the caregiver is connected through the department’s registration process with the medical use of marijuana, provided that the caregiver possesses no more than six marijuana plants and one ounce of usable marijuana for the patient to whom he is connected through the department’s registration process.

(2)  There shall exist a rebuttable presumption that a primary caregiver is engaged in the medical use of marijuana if the caregiver possesses a registry identification card and no more than six marijuana plants and one ounce of usable marijuana.  The presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of alleviating the symptoms or effects of a qualifying patient’s debilitating medical condition.

(3) A primary caregiver may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana unless the caregiver was in violation of section 1[5] 71 of this act when the events giving rise to the prosecution occurred.  The defense shall be presumed valid where the evidence shows that:

(a) at the time of the events giving rise to the prosecution, the patient’s medical records indicated or a physician stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient; and

(b) the patient and his caregiver, if any, were collectively in possession of no more than six marijuana plants and one ounce of usable marijuana.

(4)  Possession of, or application for, a registry identification card shall not alone constitute probable cause to search a person or property of a person possessing or applying for the registry identification card, or otherwise subject the person or his property to inspection by any governmental agency.

(5)  The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of marijuana determined to exist by the department, shall not apply if a primary caregiver has in his possession a registry identification card and no more than six marijuana plants and one ounce of usable marijuana1, or if an alternative treatment center permit holder has in his possession no more than six marijuana plants and one ounce of usable marijuana per registry identification card holder1.

d.  A physician 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 State Board of Medical Examiners, for providing written certification for the medical use of marijuana to a qualifying patient.

e.  No person shall be subject to arrest or prosecution for constructive possession, conspiracy or any other offense for simply being in the presence or vicinity of the medical use of marijuana as permitted under this act.]2

 

2[15. a. The department shall establish a registration program authorizing medical marijuana alternative treatment centers to produce marijuana for medical purposes, and may charge a reasonable fee for the issuance of a registration permit under this section.

b.  The department shall require that a permit applicant provide information that includes, but is not limited to:

(1) the name of the person responsible for operating the alternative treatment center;

(2) the names of all employees, whether volunteer or paid;

(3) the location of the alternative treatment center;

(4) the registry identification card number of each cardholder for whom marijuana is to be produced; and

(5) any other information that the department considers necessary.

c. A person who has been convicted of possession or sale of a controlled dangerous substance shall not be issued a permit to operate an alternative treatment center or be an employee of an alternative treatment center, unless such conviction was for a violation of federal law relating to possession or sale of marijuana for conduct that is legal under this act.

d. The department shall issue a permit to a person to operate an alternative treatment center if the requirements of this section are met and the department has verified the information contained in the application.  The department shall approve or deny an application within 60 days after receipt of a completed application.  The denial of an application shall be considered a final agency decision, subject to review by the Appellate Division of the Superior Court.

e.  A person who has been issued a permit pursuant to this section shall display the permit at the alternative treatment center at all times when marijuana is being produced, or dispensed to a registered qualifying patient or designated primary caregiver of the patient.

f.  An alternative treatment center permit holder shall report any change in information to the department not later than 10 days after such change, or the permit shall be deemed null and void.

g.  All usable marijuana, plants, seedlings and seeds associated with the production of marijuana for a registry identification cardholder are the property of the registered patient and must be provided to the patient upon request.

h. A registered patient or the designated primary caregiver of the patient may reimburse the alternative treatment center for reasonable costs associated with the production of marijuana for the cardholder.1]2

 

2[16.  A medical marijuana alternative treatment center permit holder or his employee shall not be subject to arrest or prosecution, penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, including, but not limited to, being subject to any disciplinary action by a professional licensing board, for the acquisition, distribution, possession, cultivation, or transportation of marijuana or paraphernalia related to marijuana on behalf of a registered patient, provided the amount of any marijuana so acquired, distributed, possessed, cultivated, or transported, together with the combined amount of marijuana possessed by the registered patient and his primary caregiver, shall not exceed six marijuana plants and one ounce of usable marijuana for each registered patient for whom the alternative treatment center permit holder is authorized to produced marijuana.  For the purposes of this subsection, “distribution” or “distributed” means the transfer of marijuana and paraphernalia related to marijuana from the alternative treatment center permit holder to the registered patient or his primary caregiver.1]2

 

1[5.] 2[ 7.1  The provisions of this act shall not be construed to permit any person to operate, navigate, or be in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana; or smoke marijuana in a school bus or other form of public transportation, on any school grounds, in any correctional facility, at any public park or beach, or at any recreation center.  A person who commits an act as provided in this section shall be subject to such penalties as provided by law.]2

 

1[6.] 2[8.1  It shall be a disorderly persons offense for a person to fabricate or misrepresent a registry identification card 1or a medical marijuana alternative treatment center permit1 to a law enforcement official.]2

 

1[7.] 2[9.1 a.  The department shall establish a registry and shall issue a registry identification card to a qualifying patient who submits the following, in accordance with the department's regulations:

(1) written certification that the person is a qualifying patient;

(2) an application or renewal fee, which may be based on a sliding scale as determined by the commissioner;

(3) name, address and date of birth of the patient;

(4) name, address and telephone number of the patient's physician; and

(5) name, address and date of birth of the patient's primary caregiver, if any.

Before issuing a registry identification card, the department shall verify the information contained in the application or renewal form submitted pursuant to this section.  The department shall approve or deny an application or renewal within 15 days of receipt of the application or renewal, and shall issue a registry identification card within five days of approving the application or renewal.  The department may deny an application or renewal only if the applicant fails to provide the information required pursuant to this section, or if the department determines that the information was falsified.  Denial of an application is considered a final agency decision, subject to review by the Appellate Division of the Superior Court.

b.  The department shall issue a registry identification card to the caregiver named in a patient's approved application, if the caregiver signs a statement agreeing to provide marijuana only to the patient who has named him as caregiver.  However, the department shall not issue a registry identification card to a proposed caregiver who has previously been convicted of a felony drug offense.

c.  A registry identification card shall contain the following information:

(1) the name, address and date of birth of the patient;

(2) the name, address and date of birth of the patient's caregiver, if any;

(3) the date of issuance and expiration date of the registry identification card;

(4) photo identification of the cardholder; and

(5) such other information that the department may specify in its regulations.

A patient who has been issued a registry identification card shall notify the department of any change in the patient's name, address, physician or caregiver, or change in status of the patient's debilitating medical condition, within 10 days of such change, or the registry identification card shall be deemed null and void.

d.  The department shall maintain a confidential list of the persons to whom it has issued registry identification cards.  Individual names and other identifying information on the list shall be confidential, and shall not be considered a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.), and shall not be disclosed except to:

(1) authorized employees of the department as necessary to perform official duties of the department; or

(2) authorized employees of State or local law enforcement agencies, only as necessary to verify that a person who is engaged in the suspected or alleged medical use of marijuana is lawfully in possession of a registry identification card.]2

 

1[8.] 2[10.1  The commissioner may accept from any governmental department or agency, public or private body or any other source grants or contributions to be used in carrying out the purposes of this act.]2

 

1[9.] 2[11.1 The commissioner shall report annually to the Governor and the Legislature on the number of applications for registry identification cards, the number of qualifying patients and primary caregivers1[approved] registered11the number of medical marijuana alternative treatment center permits issued,1 the nature of the debilitating medical conditions of the patients, the number of registry identification cards1and alternative treatment center permits1 revoked, and the number of physicians providing written certifications for patients.  The report shall not contain any identifying information of patients, caregivers1, alternative treatment centers,1 or physicians.]2

23.   (New section) As used in this act:

“Bona fide physician-patient relationship” means a relationship in which the physician has 3[the]3 ongoing 3[primary]3 responsibility for the assessment, care and treatment of a patient’s debilitating medical condition.

3“Certification” means a statement signed by a physician with whom a qualifying patient has a bona fide physician-patient relationship, which attests to the physician’s authorization for the patient to apply for registration for the medical use of marijuana.3

“Commissioner” means the Commissioner of Health and Senior Services.

“Debilitating medical condition” means:

(1) 3one of the following conditions, if resistant to conventional medical therapy:3 seizure disorder, including epilepsy3[,];3 intractable skeletal muscular spasticity3;3 or glaucoma 3[that is resistant to conventional medical therapy]3;

(2) 3one of the following conditions, if severe or chronic pain, severe nausea or vomiting, cachexia, or wasting syndrome results from the condition or treatment thereof:3 positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or cancer 3[that results in severe or chronic pain, severe nausea or vomiting, cachexia, or wasting syndrome]3;

(3) amyotrophic lateral sclerosis, multiple sclerosis, terminal cancer3, muscular dystrophy, or inflammatory bowel disease, including Crohn’s disease;

(4) terminal illness, if the physician has determined a prognosis of less than 12 months of life3; or

3[(4)] (5)3 any other medical condition or its treatment that is approved by the department by regulation.

“Department” means the Department of Health and Senior Services.

“Marijuana” has the meaning given in section 2 of the “New Jersey Controlled Dangerous Substances Act,” P.L.1970, c.226 (C.24:21-2).

“Medical marijuana alternative treatment center” or “alternative treatment center” means 3[a nonprofit] an3 organization approved by the department to perform activities necessary to provide registered qualifying patients with usable marijuana and related paraphernalia in accordance with the provisions of this act.  This term shall include the organization’s officers, directors, board members, and employees.

“Medical use of marijuana” means the acquisition, possession, 3transport,3 or use of marijuana or paraphernalia by a registered qualifying patient as authorized by this act.

“Minor” means a person who is under 18 years of age and who has not been married or previously declared by a court or an administrative agency to be emancipated.

“Paraphernalia” has the meaning given in N.J.S.2C:36-1.

“Physician” means a person licensed to practice medicine and surgery pursuant to Title 45 of the Revised Statutes with whom the patient has a bona fide physician-patient relationship and who is the 3primary care physician, hospice physician, or3 physician responsible for the ongoing 3[primary]3 treatment of a patient’s debilitating medical condition 3, provided, however, that such ongoing treatment shall not be limited to the provision of authorization for a patient to use medical marijuana or consultation solely for that purpose3.

     3“Primary caregiver” or “caregiver” means a resident of the State who:

a.     is at least 18 years old;

b.    has agreed to assist with a registered qualifying patient’s medical use of  marijuana, is not currently serving as primary caregiver for another qualifying patient, and is not the qualifying patient’s physician;

c.     has never been convicted of possession or sale of a controlled dangerous substance, unless such conviction occurred after the effective date of this act and was for a violation of federal law related to possession or sale of marijuana that is authorized under this act;

d.    has registered with the department pursuant to section 4 of this act, and has satisfied the criminal history record background check requirement of section 4 of this act; and

e.     has been designated as primary caregiver on the qualifying patient’s application or renewal for a registry identification card or in other written notification to the department.3  

“Qualifying patient” or “patient” means a 3[person] resident of the State3 who has been provided with a 3[written]3 certification by a physician pursuant to a bona fide physician-patient relationship.

“Registry identification card” means a document issued by the department that identifies a person as a registered qualifying patient 3or primary caregiver3.

“Usable marijuana” means the dried leaves and flowers of marijuana, and any mixture or preparation thereof, and does not include the seeds, stems, stalks or roots of the plant.

3[“Written certification” means a statement signed by a physician with whom a qualifying patient has a bona fide physician-patient relationship, which attests to the physician’s authorization for the patient to apply for registration for the medical use of marijuana.2]3


     24.  (New section) a. The department shall establish a registry of qualifying patients 3and their primary caregivers,3 and shall issue a registry identification card 3[that], which3 shall be valid for 3[one year] two years,3 to a qualifying patient 3and primary caregiver, if applicable,3 who submits the following, in accordance with regulations adopted by the department:

(1) a 3[written]3 certification that meets the requirements of section 5 of 3[P.L.    , c.   ( C.      )(pending before the Legislature as this bill)] this act3;

(2)   an application or renewal fee, which may be based on a sliding scale as determined by the commissioner;

(3)   the name, address and date of birth of the patient 3and caregiver, as applicable3;3and3

(4)   the name, address and telephone number of the patient’s physician.

b.    Before issuing a registry identification card, the department shall verify the information contained in the application or renewal form submitted pursuant to this section.  3In the case of a primary caregiver, the department shall provisionally approve an application pending the results of a criminal history record background check, if the caregiver otherwise meets the requirements of this act.3  The department shall approve or deny an application or renewal within 30 days of receipt of the 3completed3 application or renewal, and shall issue a registry identification card within five days of approving the application or renewal.  The department may deny an application or renewal only if the applicant fails to provide the information required pursuant to this section, or if the department determines that the information was incorrect or falsified or does not meet the requirements of this act.  Denial of an application shall be a final agency decision, subject to review by the Superior Court, Appellate Division.

c.  3(1) The commissioner shall require each applicant seeking to serve as a primary caregiver to undergo a criminal history record background check.  The commissioner is authorized to exchange fingerprint data with and receive criminal history record background information from the Division of State Police and the Federal Bureau of Investigation consistent with the provisions of applicable federal and State laws, rules, and regulations.  The Division of State Police shall forward criminal history record background information to the commissioner in a timely manner when requested pursuant to the provisions of this section.

An applicant seeking to serve as a primary caregiver shall submit to being fingerprinted in accordance with applicable State and federal laws, rules, and regulations.  No check of criminal history record background information shall be performed pursuant to this section unless the applicant has furnished his written consent to that check.  An applicant who refuses to consent to, or cooperate in, the securing of a check of criminal history record background information shall not be considered for inclusion in the registry as a primary caregiver or issuance of an identification card.  An applicant shall bear the cost for the criminal history record background check, including all costs of administering and processing the check.

(2) The commissioner shall not approve an applicant seeking to serve as a primary caregiver if the criminal history record background information of the applicant reveals a disqualifying conviction.  For the purposes of this section, a disqualifying conviction shall mean a conviction of a crime involving any controlled dangerous substance or controlled substance analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes except paragraph (4) of subsection a. of N.J.S.2C:35-10, or any similar law of the United States of any other state.

(3)   Upon receipt of the criminal history record background information from the Division of State Police and the Federal Bureau of Investigation, the commissioner shall provide written notification to the applicant of his qualification or disqualification for serving as a primary caregiver.

If the applicant is disqualified because of a disqualifying conviction pursuant to the provisions of this section, the conviction that constitutes the basis for the disqualification shall be identified in the written notice.

(4)   The Division of State Police shall promptly notify the commissioner in the event that an individual who was the subject of a criminal history record background check conducted pursuant to this section is convicted of a crime or offense in this State after the date the background check was performed.  Upon receipt of that notification, the commissioner shall make a determination regarding the continued eligibility of the applicant to serve as a primary caregiver.

(5)   Notwithstanding the provisions of subsection b. of this section to the contrary, no applicant shall be disqualified from serving as a registered primary caregiver on the basis of any conviction disclosed by a criminal history record background check conducted pursuant to this section if the individual has affirmatively demonstrated to the commissioner clear and convincing evidence of rehabilitation.  In determining whether clear and convincing evidence of rehabilitation has been demonstrated, the following factors shall be considered:

(a)   the nature and responsibility of the position which the convicted individual would hold, has held, or currently holds;

(b)   the nature and seriousness of the crime or offense;

(c)   the circumstances under which the crime or offense occurred;

(d)   the date of the crime or offense;

(e)   the age of the individual when the crime or offense was committed;

(f)    whether the crime or offense was an isolated or repeated incident;

(g)   any social conditions which may have contributed to the commission of the crime or offense; and

(h)   any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of those who have had the individual under their supervision.

d.3  A registry identification card shall contain the following information:

(1)   the name, address and date of birth of the patient 3and primary caregiver, if applicable3;

(2)   the 3[date of]3 expiration date of the registry identification card;

(3)   photo identification of the cardholder; and

(4)   such other information that the department may specify by regulation.

3e.   (1)3  A patient who has been issued a registry identification card shall notify the department of any change in the patient’s name, address, or physician or change in status of the patient’s debilitating medical condition, within 10 days of such change, or the registry identification card shall be deemed null and void.

3(2) A primary caregiver who has been issued a registry identification card shall notify the department of any change in the caregiver’s name or address within 10 days of such change, or the registry identification card shall be deemed null and void.3

3[d.] f.3  The department shall maintain a confidential list of the persons to whom it has issued registry identification cards.  Individual names and other identifying information on the list, and information contained in any application form, or accompanying or supporting document shall be confidential, and shall not be considered a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.), and shall not be disclosed except to:

(1)   authorized employees of the department and the Division of Consumer Affairs in the Department of Law and Public Safety as necessary to perform official duties of the department and the division, as applicable; and

(2)   authorized employees of State or local law enforcement agencies, only as necessary to verify that a person who is engaged in the suspected or alleged medical use of marijuana is lawfully in possession of a registry identification card.

3[e.] g.3  Applying for or receiving a registry card does not constitute a waiver of the qualifying patient’s patient-physician privilege.2

 

25.  (New section) a. Medical use of marijuana by a qualifying patient may be authorized pursuant to a 3[written]3 certification which meets the requirements of this act.  In order to provide such 3[a written]3certification, a physician shall be licensed and in good standing to practice in the State 3[and be board-certified, if available, in the specialty appropriate for the assessment, care, and ongoing primary treatment of the debilitating medical condition for which the medical use of marijuana is being considered]3.

The 3[written]3 certification shall attest that the above criteria have been met.

b.    The provisions of subsection a. of this section shall not apply to a qualifying patient who is a minor unless the custodial parent, guardian, or person who has legal custody of the minor, consents in writing that the minor patient has that person’s permission for the medical use of marijuana and that the person will control the acquisition and possession of the medical marijuana and any related paraphernalia from the alternative treatment center.2

 

26.   (New section)  a. The provisions of N.J.S.2C:35-18 shall apply to any qualifying patient, 3primary caregiver,3 alternative treatment center, physician, or any other person acting in accordance with the provisions of this act.

b.    A qualifying patient, 3primary caregiver,3 alternative treatment center, physician, or any other person acting in accordance with the provisions of this act shall not be subject to any civil or administrative penalty, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, related to the medical use of marijuana as authorized under this act.

c.     Possession of, or application for, a registry identification card shall not alone constitute probable cause to search the person or the property of the person possessing or applying for the registry identification card, or otherwise subject the person or his property to inspection by any governmental agency.

d.    The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of marijuana determined to exist by the department, shall not apply if a qualifying patient 3or primary caregiver3 has in his possession a registry identification card and no more than the maximum amount of usable marijuana that may be obtained in accordance with section 10 of 3[P.L.    , c.   (C.       ) (pending before the Legislature as this bill)] this act3.

e.     No person shall be subject to arrest or prosecution for constructive possession, conspiracy or any other offense for simply being in the presence or vicinity of the medical use of marijuana as authorized under this act.

f.     No custodial parent, guardian, or person who has legal custody of a qualifying patient who is a minor shall be subject to arrest or prosecution for constructive possession, conspiracy or any other offense for assisting the minor in the medical use of marijuana as authorized under this act.2

 

27.  (New section)  a.  The department shall accept applications from 3[nonprofit]3 entities 3for permitsto operate as alternative treatment centers, and may charge a reasonable fee for the issuance of a permit under this section.  The department shall seek to ensure the availability of 3a sufficient number of3 alternative treatment centers throughout the State, 3pursuant to need,3 including3[, to the maximum extent practicable,]3 at least two each in the northern, central, and southern regions of the State.  3The first two centers issued a permit in each region shall be nonprofit entities, and centers subsequently issued permits may be nonprofit or for-profit entities.3

     An alternative treatment center shall be authorized to acquire 3a reasonable initial and ongoing inventory, as determined by the department, of3 marijuana seeds or seedlings and paraphernalia, possess, cultivate, plant, grow, harvest, process, display, manufacture, deliver, transfer, transport, distribute, supply, sell, or dispense marijuana, or related supplies to 3[registered]3 qualifying patients 3or their primary caregivers3who are registered with the department pursuant to section 4 of 3[P.L.    , c.   (C.     )(pending before the Legislature as this bill)] this act3.

Applicants for authorization as 3[annonprofit3 alternative treatment 3[centercenters3 shall be subject to all applicable State laws governing nonprofit entities, but need not be recognized as a 50l(c)(3) organization by the federal Internal Revenue Service.

b.    The department shall require that an applicant provide such information as the department determines to be necessary pursuant to regulations adopted pursuant to this act.

c.     A person who has been convicted of 3[possession or sale of a controlled dangerous substance] a crime involving any controlled dangerous substance or controlled substance analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes except paragraph (4) of subsection a. of N.J.S.2C:35-10, or any similar law of the United States or any other state3 shall not be issued a permit to operate as 3[a] an3alternative treatment center or be a director, officer, or employee of an alternative treatment center, unless such conviction 3occurred after the effective date of this act and3 was for a violation of federal law relating to possession or sale of marijuana for conduct that is authorized under this act.

d.  3(1) The commissioner shall require each applicant seeking a permit to operate as an alternative treatment center to undergo a criminal history record background check.  For purposes of this section, the term “applicant” shall include any owner, director, officer, or employee of an alternative treatment center.  The commissioner is authorized to exchange fingerprint data with and receive criminal history record background information from the Division of State Police and the Federal Bureau of Investigation consistent with the provisions of applicable federal and State laws, rules, and regulations.  The Division of State Police shall forward criminal history record background information to the commissioner in a timely manner when requested pursuant to the provisions of this section.

An applicant shall submit to being fingerprinted in accordance with applicable State and federal laws, rules, and regulations.  No check of criminal history record background information shall be performed pursuant to this section unless the applicant has furnished his written consent to that check.  An applicant who refuses to consent to, or cooperate in, the securing of a check of criminal history record background information shall not be considered for a permit to operate, or authorization to be employed at, an alternative treatment center.  An applicant shall bear the cost for the criminal history record background check, including all costs of administering and processing the check.

(2) The commissioner shall not approve an applicant for a permit to operate, or authorization to be employed at, an alternative treatment center if the criminal history record background information of the applicant reveals a disqualifying conviction as set forth in subsection c. of this section.

(3)   Upon receipt of the criminal history record background information from the Division of State Police and the Federal Bureau of Investigation, the commissioner shall provide written notification to the applicant of his qualification for or disqualification for a permit to operate or be a director, officer, or employee of an alternative treatment center.

If the applicant is disqualified because of a disqualifying conviction pursuant to the provisions of this section, the conviction that constitutes the basis for the disqualification shall be identified in the written notice.

(4)   The Division of State Police shall promptly notify the commissioner in the event that an individual who was the subject of a criminal history record background check conducted pursuant to this section is convicted of a crime or offense in this State after the date the background check was performed.  Upon receipt of that notification, the commissioner shall make a determination regarding the continued eligibility to operate or be a director, officer, or employee of an alternative treatment center.

(5)   Notwithstanding the provisions of subsection b. of this section to the contrary, the commissioner may offer provisional authority for an applicant to be an employee of an alternative treatment center for a period not to exceed three months if the applicant submits to the commissioner a sworn statement attesting that the person has not been convicted of any disqualifying conviction pursuant to this section.

(6)   Notwithstanding the provisions of subsection b. of this section to the contrary, no employee of an alternative treatment center shall be disqualified on the basis of any conviction disclosed by a criminal history record background check conducted pursuant to this section if the individual has affirmatively demonstrated to the commissioner clear and convincing evidence of rehabilitation.  In determining whether clear and convincing evidence of rehabilitation has been demonstrated, the following factors shall be considered:

(a)   the nature and responsibility of the position which the convicted individual would hold, has held or currently holds;

(b)   the nature and seriousness of the crime or offense;

(c)   the circumstances under which the crime or offense occurred;

(d)   the date of the crime or offense;

(e)   the age of the individual when the crime or offense was committed;

(f)    whether the crime or offense was an isolated or repeated incident;

(g)   any social conditions which may have contributed to the commission of the crime or offense; and

(h)   any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of those who have had the individual under their supervision.3

e.     The department shall issue a permit to a person to operate as an alternative treatment center if the department finds that issuing such a permit would be consistent with the purposes of this act and the requirements of this section are met and the department has verified the information contained in the application.  The department shall approve or deny an application within 60 days after receipt of a completed application.  The denial of an application shall be considered a final agency decision, subject to review by the Appellate Division of the Superior Court.  The department may suspend or revoke a permit to operate as an alternative treatment center for cause, which shall be subject to review by the Appellate Division of the Superior Court.

f.     A person who has been issued a permit pursuant to this section shall display the permit at the premises of the alternative treatment center at all times when marijuana is being produced, or dispensed to a registered qualifying patient 3or the patient’s primary caregiver3.

g.     An alternative treatment center shall report any change in information to the department not later than 10 days after such change, or the permit shall be deemed null and void.

h.     An alternative treatment center may charge a registered qualifying patient 3or primary caregiver3 for the reasonable costs associated with the production and distribution of marijuana for the cardholder.

i.      The commissioner shall adopt regulations to:

(1) 3[provide for the use by a registered qualifying patient of a designated individual in an emergency situation to transport marijuana to the patient who is otherwise unable to obtain marijuana from an alternative treatment center;  and

(2)]3 require such written documentation of each delivery of marijuana to, and pickup of marijuana for, a registered qualifying patient, including the date and amount dispensed, to be maintained in the records of the alternative treatment center, as the commissioner determines necessary to ensure effective documentation of the operations of each alternative treatment center3;

(2) monitor, oversee, and investigate all activities performed by an alternative treatment center; and

(3) ensure adequate security of all facilities 24 hours per day, including production and retail locations, and security of all delivery methods to registered qualifying patients3.2

 

28.   (New section) The provisions of this act shall not be construed to permit a person to:

a.     operate, navigate, or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana; or

b.    smoke marijuana in a school bus or other form of public transportation, in a private vehicle unless the vehicle is not in operation, on any school grounds, in any correctional facility, at any public park or beach, at any recreation center, or in any place where smoking is prohibited pursuant to N.J.S.2C:33-13.

A person who commits an act as provided in this section shall be subject to such penalties as are provided by law.2


     29.   (New section) A person who knowingly sells, offers, or exposes for sale, or otherwise transfers, or possesses with the intent to sell, offer or expose for sale or transfer a document that falsely purports to be a registration card issued pursuant to this act, or a registration card issued pursuant to this act that has been altered, is guilty of a crime of the third degree.  A person who knowingly presents to a law enforcement officer a document that falsely purports to be registration card issued pursuant to this act, or a registration card that has been issued pursuant to this act that has been altered, is guilty of a crime of the fourth degree.  The provisions of this section are intended to supplement current law and shall not limit prosecution or conviction for any other offense.2

     210. (New section) a.  A physician shall provide written instructions for a registered 3qualifying3 patient 3or his caregiver3 to present to an alternative treatment center 3[, at the time of pickup or delivery,]3concerning the total amount of usable marijuana that a patient may be dispensed, in weight, in a 30-day period, which amount shall not exceed 3[one ounce] two ounces3.  If no amount is noted, the maximum amount that may be dispensed at one time is 3[one ounce] two ounces3.

b.    A physician may issue multiple written instructions at one time authorizing the patient to receive a total of up to a 90-day supply, provided that the following conditions are met:

(1)   Each separate set of instructions shall be issued for a legitimate medical purpose by the physician, as provided in this act;

(2) 3[The physician shall provide written instructions for each dispensation, other than the first dispensation if it is to be filled immediately, indicating] Each separate set of instructions shall indicate3 the earliest date on which a center may dispense the marijuana3, except for the first dispensation if it is to be filled immediately3; and

(3)   The physician has determined that providing the patient with multiple instructions in this manner does not create an undue risk of diversion or abuse.

c.     A registered qualifying patient 3or his primary caregiver3 shall present the patient’s 3or caregiver’s3 registry identification card3, as applicable,3 and these written instructions 3[at the time of pickup or delivery, and] to3 the alternative treatment center3, which3 shall verify and log the documentation presented.  3A physician may provide a copy of a written instruction by electronic or other means, as determined by the commissioner, directly to an alternative treatment center on behalf of a registered qualifying patient.3 The dispensation of marijuana pursuant to any written instructions shall occur within one month of the date that the instructions were written or the instructions are void.

d.    A patient may be registered at only one alternative treatment center at any time.2

     211.  (New section) a. A physician who provides 3[written] a3 certification or written instruction for the medical use of marijuana to a qualifying patient pursuant to P.L.  , c.  (C. )(pending before the Legislature as this bill) and any alternative treatment center shall furnish to the Director of the Division of Consumer Affairs in the Department of Law and Public Safety such information, in such a format and at such intervals, as the director shall prescribe by regulation, for inclusion in a system established to monitor the dispensation of marijuana in this State for medical use as authorized by the provisions of P.L.    , c.   ( C.      )(pending before the Legislature as this bill), which system shall serve the same purpose as3, and be cross-referenced with,3 the electronic system for monitoring controlled dangerous substances established pursuant to section 25 of P.L.2007, c.244 (C.45:1-45).

b.    The Director of the Division of Consumer Affairs, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), 3and3 in consultation with the Commissioner of Health and Senior Services, shall adopt rules and regulations to effectuate the purposes of subsection a. of this section.

c.     Notwithstanding any provision of P.L.1968, c.410 to the contrary, the Director of the Division of Consumer Affairs shall adopt, immediately upon filing with the Office of Administrative Law and no later than the 90th day after the effective date of 3[this actP.L.    , c.   (C.     )(pending before the Legislature as this bill)3, such regulations as the director deems necessary to implement the provisions of subsection a. of this section. Regulations adopted pursuant to this subsection shall be effective until the adoption of rules and regulations pursuant to subsection b. of this section and may be amended, adopted, or readopted by the director in accordance with the requirements of P.L.1968, c.410.2

 

212.  N.J.S.2C:35-18 is amended to read as follows:

2C:35-18. Exemption; Burden of Proof. a.  If conduct is authorized by the provisions of P.L.1970, c.226 (C.24:21-1 et seq.) or P.L.    , c.   (C.      )(pending before the Legislature as this bill), that authorization shall, subject to the provisions of this section, constitute an exemption from criminal liability under this chapter or chapter 36, and the absence of such authorization shall not be construed to be an element of any offense in this chapter or chapter 36. It is an affirmative defense to any criminal action arising under this chapter or chapter 36 that the defendant is the authorized holder of an appropriate registration, permit or order form or is otherwise exempted or excepted from criminal liability by virtue of any provision of P.L.1970, c 226 (C.24:21-1 et seq.) or P.L.    , c.   (C.    ) (pending before the Legislature as this bill). The affirmative defense established herein shall be proved by the defendant by a preponderance of the evidence. It shall not be necessary for the State to negate any exemption set forth in this act or in any provision of Title 24 of the Revised Statutes in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this act.

b.    No liability shall be imposed by virtue of this chapter or chapter 36 upon any duly authorized State officer, engaged in the enforcement of any law or municipal ordinance relating to controlled dangerous substances or controlled substance analogs.2

(cf: P.L.1988, c.44, s.8)

 

213.  (New section) a.  The commissioner may accept from any governmental department or agency, public or private body or any other source grants or contributions to be used in carrying out the purposes of this act.

b.    All fees collected pursuant to this act, including those from qualifying patients and alternative treatment centers’ initial, modification and renewal applications, shall be used to offset the cost of the department’s administration of the provisions of this act.2

 

214.  (New section)  a.  The commissioner shall report to the Governor, and to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1):

(1)   no later than one year after the effective date of this act, on the actions taken to implement the provisions of this act; and

(2)   annually thereafter on the number of applications for registry identification cards, the number of qualifying patients registered, 3the number of primary caregivers registered,3 the nature of the debilitating medical conditions of the patients, the number of registry identification cards revoked, 3the number of alternative treatment center permits issued and revoked,3 and the number of physicians providing 3[written]3certifications for patients.

b.    The reports shall not contain any identifying information of patients3, caregivers,3 or physicians.2

3c.   Within two years after the effective date of this act and every two years thereafter, the commissioner shall: evaluate whether there are sufficient numbers of alternative treatment centers to meet the needs of registered qualifying patients throughout the State; evaluate whether the maximum amount of medical marijuana allowed pursuant to this act is sufficient to meet the medical needs of qualifying patients; and determine whether any alternative treatment center has charged excessive prices for marijuana that the center dispensed.

The commissioner shall report his findings no later than two years after the effective date of this act, and every two years thereafter, to the Governor, and to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1).3

 

215.  (New section) a.  The Department of Health and Senior Services is authorized to exchange fingerprint data with, and receive information from, the Division of State Police in the Department of Law and Public Safety and the Federal Bureau of Investigation for use in reviewing applications 3for individuals seeking to serve as primary caregivers pursuant to section 4 of P.L.    , c.   (C.     )(pending before the Legislature as this bill), andfor 3[a permit] permits3 to operate as, or to be a director, officer3,3 or employee of, 3[an]3 alternative treatment 3[center] centers3 pursuant to section 7 of P.L.    , c.   (C.     )(pending before the Legislature as this bill).

b.    The Division of State Police shall promptly notify the Department of Health and Senior Services in the event an applicant 3seeking to serve as a primary caregiver or an applicant3 for a permit to operate as, or to be a director, officer3,3 or employee of, an alternative treatment center3,3who was the subject of a criminal history record background check conducted pursuant to subsection a. of this section, is convicted of a crime involving possession or sale of a controlled dangerous substance.2

 

1[10.] 2[12.116.  (New section)2  Nothing in this act shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana, or an employer to accommodate the medical use of marijuana in any workplace.

 

1[11.] 2[13.1  The State shall not be held liable for any deleterious outcomes from the medical use of marijuana by any qualifying patient.]2

 

1[12.] 2[14. a.1 Pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), the commissioner shall promulgate rules and regulations to effectuate the purposes of this act. The regulations shall establish: the application and renewal form, process and fee schedule; and the manner in which the department will consider petitions from the public to add debilitating medical conditions to those included in this act.

1b.   Notwithstanding any provision of P.L.1968, c.410 to the contrary, the commissioner shall adopt, immediately upon filing with the Office of Administrative Law and no later than the 90th day after the effective date of this act, such regulations as the commissioner deems necessary to implement the provisions of section 9 of this act.  Regulations adopted pursuant to this subsection shall be effective until the adoption of rules and regulations pursuant to subsection a. of this section and may be amended, adopted, or readopted by the commissioner in accordance with the requirements of P.L.1968, c.410.1]2

 

1[13.] 2[15.1  This act shall take effect 90 days after enactment.]2

 

217.  (New section) In addition to any immunity or defense provided by law, the State and any employee or agent of the State shall not be held liable for any actions taken in accordance with this act or for any deleterious outcomes from the medical use of marijuana by any registered qualifying patient.2

 

218.  (New section) a. Pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), the commissioner shall promulgate rules and regulations to effectuate the purposes of this act, in consultation with the Department of Law and Public Safety.

3[The regulations shall establish: the form, process and fee schedule for initial, modification and renewal applications for qualifying patients and alternative treatment centers that are complete and accurate; the considerations to be used to determine whether to approve an application for an alternative treatment center, including its operational procedures; the form and manner in which the department will function, including the consideration and approval of petitions to add new debilitating medical conditions to those included in this act; validating written certifications and other information contained in applications received from prospective and current qualifying patients and alternative treatment centers; protections for ensuring the confidentiality of the information submitted by prospective and current qualifying patients and alternative treatment centers, and that contained in the registry; monitoring, oversight and investigation of physicians who issue written certifications, with authority to refer physicians in violation of provisions of this act to the State Board of Medical Examiners; procedures for the revocation or suspension of a qualifying patient’s registry identification card; monitoring, oversight and investigation of all activities performed by an alternative treatment center; the methods for testing, authenticating and guaranteeing the quality, safety and quantity of marijuana sold to registered qualifying patients; which strains of marijuana shall be sold by an alternative treatment center; procedures to guarantee the quality and safety of paraphernalia sold to registered qualifying patients; standards to ensure adequate security of all facilities, including production and retail locations, and security of all delivery methods to registered qualifying patients; and the authority and process for the department to assume control of an alternative treatment center’s facilities, equipment, inventory and other items necessary for the department to serve as an alternative treatment center in the event an alternative treatment center is no longer able to operate or meet its requirements]3.

b.    Notwithstanding any provision of P.L.1968, c.410 to the contrary, the commissioner shall adopt, immediately upon filing with the Office of Administrative Law and no later than the 90th day after the effective date of this act, such regulations as the commissioner deems necessary to implement the provisions of this act. Regulations adopted pursuant to this subsection shall be effective until the adoption of rules and regulations pursuant to subsection a. of this section and may be amended, adopted, or readopted by the commissioner in accordance with the requirements of P.L.1968, c.410.2

 

219.  This act shall take effect on the first day of the 3[12th] sixth3 month after enactment, but the commissioner 3and the Director of the Division of Consumer Affairs3 may take such anticipatory administrative action in advance thereof as may be necessary to effectuate the provisions of this act.2