Be it enacted by the people of the
state of North Carolina:
SECTION 1. TITLE. Sections 1 through
12 of this Act shall be known as the North Carolina Medical Marijuana
Act.
SECTION 2. FINDINGS.
(a)
Modern medical research has discovered beneficial uses for marijuana
in treating or alleviating the pain, nausea, and 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 U.S. 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
marijuana.
(c)
Although federal law currently prohibits any use of marijuana, the laws
of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon,
Vermont, Washington, Rhode Island and New Mexico permit the medical use and cultivation of marijuana.
North Carolina joins in this effort for the health and welfare of its
citizens.
(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 North Carolina in violation
of federal law.
(e)
State law should make a distinction between the medical and non-medical
use of marijuana. Hence, the purpose of this Act is to protect patients
with debilitating medical conditions, and their practitioners and primary
caregivers, from arrest and prosecution, criminal and other penalties,
and property forfeiture if such patients engage in the medical use of
marijuana.
(f) The people of the state of North
Carolina declare that they enact this Act pursuant to the police power
to protect the health of its citizens that is reserved to the state
of North Carolina and its people under the Tenth Amendment to the United
States Constitution.
SECTION 3. DEFINITIONS. The following
terms, as used in this Act, shall have the meanings set forth in this
section:
(a)
“Debilitating medical condition” means:
(1) cancer, glaucoma, positive status for human
immunodeficiency virus, acquired immune deficiency syndrome, mental
illness, Hepatitis C, 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;
low anandamide levels, seizures, including but not limited to those characteristic
of epilepsy; or severe and persistent muscle spasms, including but not
limited to those characteristic of multiple sclerosis and Crohn’s
disease; agitation of Alzheimer's disease; or
(3) any other medical condition or its treatment
when recommended in writing by a licensed medical doctor in the state of North
Carolina.
(b)
“Department” means the North Carolina Department of Health or its
successor agency.
(c)
“Marijuana” – All parts of the plant of the genus Cannabis, whether growing or not; the seeds of this plant; or the resin extracted from any part of this plant.
With compounds mixtures, salts or preparations containing an undetermined amount of marijuana, the percentage by weight of THC in substance will be used to calculate actual total amount of THC present, the total weight of THC in the substance will be multiplied by a factor of 10, the resulting figure {equal to the weight of marijuana of average potency (10% THC by weight with a moisture content of 12.5% by weight) (1)} will be considered the weight of marijuana present in a mixture, compound or preparation by the State under this article.
(d)
“Medical use” means the acquisition, possession, cultivation, manufacture,
use, delivery, transfer, or transportation of marijuana or paraphernalia
relating to the consumption of marijuana to alleviate a registered qualifying
patient’s debilitating medical condition or symptoms associated with
the medical condition.
(e) “Practitioner” means a person
who is licensed with authority to prescribe drugs under section North
Carolina.
(f)
“Primary caregiver” means a person who is at least 18 years old
and who has agreed to assist with a person's medical use of marijuana.
A primary caregiver may assist no more than five qualifying patients
with their medical use of marijuana.
(g)
“Qualifying patient” means a person who has been diagnosed by a
practitioner as having a debilitating medical condition.
(h)
“Registry identification card” means a document issued by the department
that identifies a person as a qualifying patient or primary caregiver.
(i) “Usable marijuana” means the dried inner(trim)leaves and flowers of the marijuana plant, or, concerning mixtures or other medical preparations such as hashish or a edible (food or drink) preparation,
only the weight of the THC of such preparations shall be considered "marijuana", but shall not include the seeds, stalks thicker than 1/4 inch diameter, shade(fan leaves), and
roots of the cannabis plant.
(j)
“Written certification” means the qualifying patient’s medical
records, or a statement signed by a practitioner, stating that in the
practitioner’s professional opinion the potential benefits of the
medical use of marijuana would likely outweigh any potential health
risks for the qualifying patient. A written certification shall only
be made in the course of a bona fide practitioner-patient relationship
after the practitioner has completed a full assessment of the qualifying
patient’s medical history. The written certification shall specify
the qualifying patient's debilitating medical condition or conditions.
SECTION 4. PROTECTIONS FOR THE MEDICAL
USE OF MARIJUANA.
(a) A qualifying patient who has in his or her 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 business or occupational or professional licensing board or bureau, for the medical use of marijuana, provided that the qualifying patient possesses an amount of marijuana that does not exceed 40 marijuana plants and 20 ounces of usable marijuana.
(b) A primary caregiver who has in
his or her 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 business or occupational or professional licensing board
or bureau, for assisting a qualifying patient to whom he or she is connected
through the department's registration process with the medical use of
marijuana, provided that the primary caregiver possesses an amount of
marijuana which does not exceed 40 marijuana plants and twenty
ounces of usable marijuana for each qualifying patient to whom he or
she is connected through the department's registration process.
(c) No school, employer, or landlord
may refuse to enroll, employ, lease to, or otherwise penalize a person
solely for his or her status as a registered qualifying patient or a
registered primary caregiver.
(d)
There shall exist a presumption that a qualifying patient or primary
caregiver is engaged in the medical use of marijuana if the qualifying
patient or primary caregiver:
(1) is in possession of a registry identification
card; and
(2) is in possession of an amount of marijuana
which does not exceed the amount permitted under this Act. Such presumption
may be rebutted by evidence that conduct related to marijuana was not
for the purpose of alleviating the qualifying patient’s debilitating
medical condition or symptoms associated with the medical condition.
(e) A primary caregiver may receive
reimbursement for costs associated with assisting with a registered
qualifying patient's medical use of marijuana. Compensation shall not
constitute sale of controlled substances.
(f)
A practitioner 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 North Carolina Medical
Board or by a another business or occupational or professional licensing
board or bureau solely for providing written certifications or for otherwise
stating that, in the practitioner's professional opinion, the potential
benefits of the medical marijuana would likely outweigh the health risks
for a patient.
(g) (1) Any interest in or right to
property that is possessed, owned, or used in connection with the medical
use of marijuana, or acts incidental to such use, shall not be forfeited.
(2)
A law enforcement agency that seizes and does not return usable marijuana
to a registered qualifying patient or a registered primary caregiver
shall be liable to the cardholder for the fair market value of the marijuana.
(h)
No person shall be subject to arrest or prosecution for constructive
possession, conspiracy, aiding and abetting, being an accessory, or
any other offense for simply being in the presence or vicinity of the
medical use of marijuana as permitted under this Act or for assisting
a registered qualifying patient with using or administering marijuana.
(i) A registry identification card,
or its equivalent, issued under the laws of another state, U.S. territory,
or the District of Columbia 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, shall have the same force and effect
as a registry identification card issued by the department.
SECTION 5. DEPARTMENT TO ISSUE REGULATIONS.
(a) Not later than 90 days after the
effective date of this Act, the department shall promulgate regulations
governing the manner in which it shall consider petitions from the public
to add debilitating medical conditions to those included in this Act.
In considering such petitions, the department shall include public notice
of, and an opportunity to comment in a public hearing upon, such petitions.
The department shall, after hearing, approve or deny such petitions
within 180 days of submission. The approval or denial of such a petition
shall be considered a final department action, subject to judicial review.
Jurisdiction and venue for judicial review are vested in the _____ Court.
The denial of a petition shall not disqualify qualifying patients with
that condition if they have a debilitating medical condition. The denial
of a petition shall not prevent a person with the denied condition from
raising an affirmative defense.
(b) Not later than 90 days after the
effective date of this Act, the department shall promulgate regulations
governing the manner in which it shall consider applications for and
renewals of registry identification cards for qualifying patients and
primary caregivers. The department's regulations shall establish application
and renewal fees that generate revenues sufficient to offset all expenses
of implementing and administering this Act. The department may vary
the application and renewal fees along a sliding scale that accounts
for a qualifying patient's income. The department may accept donations
from private sources in order to reduce the application and renewal
fees.
SECTION 6. ADMINISTERING THE DEPARTMENT'S
REGULATIONS.
(a)
The department shall issue registry identification cards to qualifying
patients who submit the following, in accordance with the department’s
regulations:
(1)
written certification;
(2)
application or renewal fee;
(3)
name, address, and date of birth of the qualifying patient, except that
if the applicant is homeless, no address is required;
(4)
name, address, and telephone number of the qualifying patient’s practitioner;
and
(5)
name, address, and date of birth of each primary caregiver of qualifying
patient, if any.
(b) The department shall not issue
a registry identification card to a qualifying patient under the age
of 18 unless:
(1)
The qualifying patient’s practitioner has explained the potential
risks and benefits of the medical use of marijuana to the qualifying
patient and to a parent, guardian, or person having legal custody of
the qualifying patient; and
(2)
A parent, guardian, or person having legal custody consents in writing
to:
(A) allow the qualifying patient’s medical
use of marijuana;
(B) serve as one of the qualifying patient’s
primary caregivers; and
(C) control the acquisition of the marijuana,
the dosage, and the frequency of the medical use of marijuana by the
qualifying patient.
(c) The department shall verify the
information contained in an application or renewal submitted pursuant
to this section, and shall approve or deny an application or renewal
within 15 days of receiving it. The department may deny an application
or renewal only if the applicant did not provide the information required
pursuant to this section, or if the department determines that the information
provided was falsified. Rejection of an application or renewal is considered
a final department action, subject to judicial review. Jurisdiction
and venue for judicial review are vested in the _____ Court.
(d) The department shall issue a registry
identification card to each primary caregiver, if any, who is named
in a qualifying patient's approved application, up to a maximum of two
primary caregivers per qualifying patient.
(e)
The department shall issue registry identification cards within five
days of approving an application or renewal, which shall expire one
year after the date of issuance. Registry identification cards shall
contain:
(1)
name, address, and date of birth of the qualifying patient;
(2)
name, address, and date of birth of each primary caregiver of qualifying
patient, if any;
(3)
the date of issuance and expiration date of the registry identification
card;
(4)
a random registry identification number; and
(5)
a photograph, if the department decides to require one.
(f) (1) A qualifying patient who has
been issued a registry identification card shall notify the department
of any change in the qualifying patient's name, address, or primary
caregiver, or if the qualifying patient ceases to have his or her debilitating
medical condition, within 10 days of such change.
(2)
A registered qualifying patient who fails to notify the department of
any of these changes is responsible for a civil infraction, punishable
by a fine of no more than $150. If the person has ceased to suffer from
a debilitating medical condition, the card shall be deemed null and
void and the person shall be liable for any other penalties that may
apply to the person's non-medical use of marijuana.
(3)
A registered primary caregiver shall notify the department of any change
in his or her name or address within 30 days of such change. A primary
caregiver who fails to notify the department of any of these changes
is responsible for a civil infraction, punishable by a fine of no more
than $150.
(4) When a qualifying patient or primary caregiver
notifies the department of any changes listed in this subsection, the
department shall issue the registered qualifying patient and each primary
caregiver a new registry identification card within 10 days of receiving
the updated information and a $10 fee.
(5) When a qualifying patient who possesses
a registry identification card changes his or her primary caregiver,
the department shall notify the primary caregiver within 30 days. The
primary caregiver's protections as provided in this Act shall expire
10 days after notification by the department.
(6) If a registered qualifying patient or a
primary caregiver loses his or her registry identification card, he
or she shall notify the department and submit a $10 fee within 10 days
of losing the card. Within five days, the department shall issue a new
registry identification card with a new random identification number.
(g)
Possession of, or application for, a registry identification card shall
not constitute probable cause or reasonable suspicion, nor shall it
be used to support the search of the person or property of the person
possessing or applying for the registry identification card, or otherwise
subject the person or property of the person to inspection by any governmental
agency.
(h) (1) Applications and supporting
information submitted by qualifying patients, including information
regarding their primary caregivers and practitioners, are confidential.
(2) The department shall maintain a confidential list of the
persons to whom the department has
issued registry identification cards. Individual names and other identifying
information on the list shall be confidential, exempt from the any Freedom
of Information Act, and not subject to disclosure, except to authorized
employees of the department as necessary to perform official duties
of the department.
(3)
The department shall verify to law enforcement personnel whether a registry
identification card is valid solely by confirming the random registry
identification number.
(4)
It shall be a crime, punishable by up to 180 days in jail and a $1,000
fine, for any person, including an employee or official of the department
or another state agency or local government, to breach the confidentiality
of information obtained pursuant to this Act. Notwithstanding this provision,
the department employees may notify law enforcement about falsified
or fraudulent information submitted to the department.
(i) The department shall report annually
to the legislature on the number of applications for registry identification
cards, the number of qualifying patients and primary caregivers approved,
the nature of the debilitating medical conditions of the qualifying
patients, the number of registry identification cards revoked, and the
number of practitioners providing written certification for qualifying
patients. The department shall not provide any identifying information
of qualifying patients, primary caregivers, or practitioners.
(j) Any state or local law enforcement
official who knowingly cooperates with federal law enforcement agents
to arrest, investigate, prosecute, or search a registered qualifying
patient or a registered primary caregiver or his or her property for
acting in compliance with this Act shall have his or her employment
suspended or terminated.
SECTION 7. SCOPE OF ACT.
(a)
This Act shall not permit:
(1) any person to undertake any task under
the influence of marijuana, when doing so would constitute negligence
or professional malpractice;
(2)
the smoking of marijuana:
(A) in a school bus or other form of public
transportation;
(B) on any school grounds;
(C) in any public place; and
(3) any person to operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marijuana. However, a registered qualifying patient shall not be considered to be under the influence solely for having marijuana metabolites in his or her system.
(b)
Nothing in this Act shall be construed to require:
(1) a government medical assistance program
or private health insurer to reimburse a person for costs associated
with the medical use of marijuana; or
(2) an employer to accommodate the medical
use of marijuana in any workplace.
(c)
Fraudulent representation to a law enforcement official of any fact
or circumstance relating to the medical use of marijuana to avoid arrest
or prosecution shall be punishable by a fine of $500, which shall be
in addition to any other penalties that may apply for making a false
statement and for the non-medical use of marijuana.
SECTION 8. AFFIRMATIVE DEFENSE AND
DISMISSAL FOR MEDICAL MARIJUANA.
(a) Except as provided in section 7,
a person and a person's primary caregiver, if any, may assert the medical
purpose for using marijuana as a defense to any prosecution involving
marijuana, and such defense shall be presumed valid where the evidence
shows that:
(1) the person’s medical records indicate,
or a practitioner has stated that, in the practitioner’s professional
opinion, after having completed a full assessment of the person’s
medical history and current medical condition made in the course of
a bona fide practitioner-patient relationship, the potential benefits
of using marijuana for medical purposes would likely outweigh the health
risks for the person; and
(2) the person and the person’s primary caregiver,
if any, were collectively in possession of a quantity of marijuana that
was not more than was reasonably necessary to ensure the uninterrupted
availability of marijuana for the purpose of alleviating the person’s
medical condition or symptoms associated with the medical condition.
(b) A person may assert the medical
purpose for using marijuana in a motion to dismiss, and the charges
shall be dismissed following an evidentiary hearing where the defendant
shows the elements listed in Section 8(a).
(c) Any interest in or right to property
that was possessed, owned, or used in connection with a person's use
of marijuana for medical purposes shall not be forfeited if the person
or the person's primary caregiver demonstrates the person's medical
purpose for using marijuana pursuant to this section.
SECTION 9. ENFORCMENT OF THIS ACT.
(a) If the Department fails to adopt
regulations to implement this Act within 120 days of the effective date
of this act, a qualifying patient may commence an action in a court
of competent jurisdiction to compel the department to perform the actions
mandated pursuant to the provisions of this Act.
(b) If the department fails to issue
a valid registry identification card in response to a valid application
submitted pursuant to this Act within 20 days of its submission, the
registry identification card shall be deemed granted and a copy of the
registry identification application shall be deemed a valid registry
identification card.
SECTION 10. REPEALER.
All
laws and parts of laws in North Carolina that are in conflict with this
Act are hereby repealed.
SECTION 11. SEVERABILITY.
Any section of this Act being held
invalid as to any person or circumstances shall not affect the application
of any other section of this Act that can be given full effect without
the invalid section or application.
SECTION 12. DATE OF EFFECT.
This Act shall take effect upon its
approval.
OPTIONAL SECTION. NON-PROFIT DISPENSARIES.
(a) "Registered organization"
means a non-profit entity registered with the state under this Act that
acquires, possesses, cultivates, manufactures, delivers, transfers,
transports, supplies, or dispenses marijuana, cultivation equipment,
related supplies and educational materials, or marijuana seeds to registered
qualifying patients and their primary caregivers. A registered organization
is a primary caregiver, although it may supply marijuana to any number
of registered qualifying patients who have designated it as one of their
primary caregivers.
(b) (1) The department shall issue a
registered organization license within 20 days to any person who complies
with department rules and provides the following:
(A) a fee paid to the department in the amount
established by the department, which shall not exceed $1,000;
(B)
the name of the registered organization;
(C) the physical addresses of the registered
organization and any other real property where marijuana is to be possessed,
cultivated, manufactured, supplied, or dispensed relating to the operations
of the registered organization; and
(D) the name, address, and date of birth of
any person who is an agent of or employed by the registered organization.
(2)
The department shall issue each agent and employee of a registered organization
a registry identification card for a cost of $10 each within 10 days
of receipt of the person's identifying information and the fee. Each
card shall specify that the cardholder is an employee or agent of a
registered organization.
(3) Each license for a registered organization
and each employee or agent registry identification card shall expire
one year after the date of issuance.
(4)
Not later than 90 days after the effective date of this act, the department
shall promulgate regulations to implement this section, including the
following:
(A) procedures for the oversight of registered
organizations, record-keeping and reporting requirements for registered
organizations, the potential transference or sale of seized cultivation
equipment and related supplies from law enforcement agencies to registered
organizations, and procedures for suspending or terminating the registration
of registered organizations; and
(B) the form and content of the registration
and renewal applications.
(c) Registered organizations shall
be subject to reasonable inspection by the department to determine that
applicable rules are being followed. Reasonable notice shall be given
prior to these inspections.
(d) (1) Registered organizations shall
be established as nonprofit entities. They shall be subject to all applicable
state laws governing nonprofit entities, but need not be recognized
as a 501(c)(3) organization by the Internal Revenue Service;
(2)
Registered organizations may not be located within 500 feet of the property
line of a public school, private school, or structure used primarily
for religious services or worship.
(3)
The operating documents of a registered organization shall include procedures
for the oversight of the registered organization and procedures to ensure
adequate record-keeping.
(e) (1) A registered organization shall
notify the department within 10 days of when an employee or agent ceases
to work at the registered organization.
(2)
The registered organization shall notify the department before a new
agent or employee begins working at the registered organization, in
writing, and it shall submit a $10 fee for that person's registry identification
card.
(f) (1) No registered organization shall
be subject to prosecution, search, seizure, or penalty in any manner,
or denied any right or privilege, including but not limited to civil
penalty or disciplinary action by a business or occupational or professional
licensing board or bureau for acting in accordance with this Act and
the regulations issued pursuant thereto to assist registered qualifying
patients to whom it is connected through the department's registration
process with the medical use of marijuana, provided that the registered
organization possesses an amount of marijuana which does not exceed
12 marijuana plants and two and one-half ounces of usable marijuana
for each registered qualifying patient.
(2)
No employees, agents, or board members of a registered organization
shall be subject to arrest, prosecution, search, seizure, or penalty
in any manner, or denied any right or privilege, including but not limited
to civil penalty or disciplinary action by a business or occupational
or professional licensing board or bureau for working for a registered
organization in accordance with this Act.
(g) The registered organization
is prohibited from:
(1)
obtaining marijuana from outside the state in violation of federal law;
(2)
acquiring, possessing, cultivating, manufacturing, delivering, transferring,
transporting, supplying, or dispensing marijuana for any purpose except
to assist registered qualifying patients with their medical use of marijuana
directly or through the qualifying patients' other primary caregivers.
(h) Except as provided in this Act,
a municipality may not prevent a registered organization from operating
in accordance with this Act in an area where zoning permits retail businesses.
(i) If provisions of this Act establishing registered organization are enjoined or declared unconstitutional, then enforcing laws against delivery of marijuana for consideration to registered qualifying patients shall be the lowest priority of law enforcement.
American Medical Doctor Organization with 124,000 Members Supports Medical Marijuana!
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