Medical/Recreational/Decriminalization Laws

Medical/Recreational/Decriminalization Laws

Colorado

Medical

In 2000, Colorado voters approved Amendment 20, which incorporated the medical use of marijuana into the State Constitution. The law allows patients to legally purchase and possess up to two ounces of marijuana, which they can purchase at medical dispensaries with a valid ID card. Patients may also grow up to six plants at home, as long as no more than three are mature. In order to obtain an ID, patients must provide a state registry with proof of a medical condition recognized for medical cannabis, which they receive from a health care professional. Approved conditions include cachexia, cancer, chronic pain, chronic nervous system disorders, epilepsy, glaucoma, HIV or AIDs, multiple sclerosis, and nausea. The law also includes exceptions to Colorado criminal laws for patients and healthcare providers, and it has a designated regulatory scheme for registration, fees, and licensing.

In 2013, the Colorado Court of Appeals held that employers retain the right to ban medical marijuana use by employees outside of the workplace, as marijuana remains illegal under federal law. Recently, lawmakers approved a bill that will require all school districts to allow patients or caregivers to administer medical marijuana to patients who are minors on school grounds.

Recreational

Recreational marijuana became legal in Colorado in 2012, when voters approved Amendment 64, which legalized the use, purchase, and possession of recreational marijuana. The law allows individuals twenty-one-years or older with a valid government ID to purchase up to one ounce of marijuana, and individuals may grow up to six plants (with only three mature) at home. The law treats marijuana in a manner similar to alcohol: transfer to minors and driving under the influence remain illegal, as does public and open consumption. Additionally, employers retain the right to have policies restricting use of marijuana by employees. Recreational marijuana is regulated by the state’s Marijuana Enforcement Division, which oversees applications, licensing, and regulations. Under the law, the first $40 million in revenue annually from the state’s 15% excise tax is credited to the Public School Capital Construction Alliance fund.

Throughout 2013, Governor Hickenlooper signed multiple bills that further delineated regulation of recreational marijuana in the state. These included establishing a standard for impaired driving, which is 5 nanograms per milliliter, the purchasing limit for out-of-state residents (1/4 ounce), and voter referendums for taxation. On January 1, 2014, retail sales began. By the end of the year, the total amount generated from taxes, licenses, and fees on marijuana sales was roughly $52.5 million. In 2015, revenue totaled over $85 million. From 2013 to 2016, the Marijuana Enforcement Division has made continuous updates to the state’s statutory rules, particularly with regard to license acquisition, labeling and packaging requirements, and license renewals.

California

Decriminalization

In 1975, California’s legislature decriminalized the use of marijuana by passing the Moscone Act, which shifted possession of up to one ounce of marijuana from a criminal to a civil offense, punishable by a $100 fine. Amounts greater than one ounce, possession on school grounds, and cultivation retained higher levels of punishment. The state’s voters revisited decriminalization in 2000, when they approved the Substance Abuse and Crime Prevention Act, which required that both first- and second-offense drug violators receive sentencing to drug treatment programs, rather than face trial and potential incarceration. Finally, in 2010, a bill reducing possession charges for up to an ounce of marijuana from a misdemeanor to a violation (like a traffic ticket) passed; the violation did not require a court appearance, and it imposed a $100 fine.

Medical

California became the first state in the country to legalize medical marijuana in 1996, when voters approved the Compassionate Use Act by a 55% majority. The Act allows individuals with cancer, AIDS, anorexia, glaucoma, migraines, and certain chronic illnesses to grow or obtain marijuana for medical purposes, so long as the use is recommended by a doctor. The law additionally mandates that doctors not face punishment for recommending marijuana use.

In 2003, Senate Bill 420 (also known as the Medical Marijuana Protection Act) supplemented the state’s medical marijuana laws. The Act clarified numerous aspects of the scope and application of the Compassionate Use Act, which had been criticized for its vague language and lax standards regarding who could qualify as a medical-marijuana patient. The Protection Act added a state identification card system, and it allowed the formation of non-profit organizations (“patient collectives”) to provide marijuana to patients. It also set a state-wide standard for possession limits, which forced counties that held “zero tolerance” policies to honor the state’s standards.

Recreational

In 2010, Proposition 19 attempted to legalize recreational marijuana in California. However, 53.5% of voters voted against the bill, which would have legalized up to 1 oz. of marijuana possession for adults 21 years of age or older, and allowed citizens to grow cannabis for personal use in a personal residence, with up to 25 square feet of space permitted. In terms of regulation, Proposition 19 authorized local governments to manage retail sales, establishments, and consider authorizing growth of larger amounts of cannabis for personal possession or commercial purposes.

In November 2016, voters will likely be asked again about recreational marijuana legalization. Although numerous initiatives circulated in 2015, The California Control, Regulate and Tax Adult Use of Marijuana Initiative gathered the votes to appear. The initiative proposes legalization of both marijuana and hemp under state law. In addition, it includes measures intended to establish a regulatory structure through creating state agencies that would oversee the state marijuana industry’s licensing, regulation, and other details. A 15% excise tax on retail sales would apply, as would a “cultivation tax” of $9.25/ounce of flowers and $2.75/ounce of leaves. (Medical marijuana patients would be exempted from the cultivation tax.) The initiative also prohibits the marketing of marijuana to minors.

Notably, the initiative allows courts to reduce sentencing times for individuals whose crimes would be reduced by the act (as long as the individual does not pose a risk to public safety), and courts may also re-designate or dismiss the same offenses from the criminal records of individuals who have already completed their sentences. The initiative also would allow industrial hemp growth as an agricultural product and for research. Hemp would be regulated separately from higher THC-content cannabis.

Nevada

Medical

Nevada legalized medical marijuana in 2000, with a margin of 65% of voters in favor and 35% against. The law approves the use of marijuana for treatment or alleviation by patients with cancer, glaucoma, AIDS, epilepsy, multiple sclerosis, and other various conditions approved by law. Use by a minor is restricted, requiring both written authorization by a parent and parental control of acquisition and use of marijuana. In addition, use or possession of marijuana in a public place is prohibited, and insurer reimbursements, along with employer accommodations, are not required by the law.

Like many other states, eligible patients can apply for an ID card authorizing them to purchase, possess, and use marijuana. Currently, the Division of Public and Behavioral Health (under the Department of Health and Human Services) oversees the state’s ID card issuance and regulatory scheme. Recognized status as a patient exempts individuals from certain state penalties normally imposed for possession or use. Patients may also grow up to twelve plants per person. However, due to lack of language in the 2000 law establishing a regulatory system for sales and distribution until 2013, it was not until July of 2015 that medical marijuana stores opened their doors in the state. Until that time, individuals who possessed an ID card had to grow their own marijuana plants in order to have access.

Recreational

Nevada residents will vote on legalizing recreational marijuana in November 2016, when it will be listed on the ballot as Question 2. If approved, the measure would legalize up to one ounce of marijuana for individuals 21 years of age or older. In addition, it would also prohibit giving or selling marijuana to minors, driving under the influence of marijuana, and public use. In terms of its regulatory scheme, Question 2 would allot licensing (including determining the number of licenses allotted) to the Nevada Department of Taxation, and local governments would have control over establishment of business locations. Operation of recreational businesses near schools, childcare facilities, religious houses, and some community areas would be prohibited. Finally, the existing state sales tax would apply to sales, along with a 15% excise tax on wholesale sales, with revenue used to support K-12 education.

Texas

Medical

In 2015, Texas passed the Texas Compassionate Use Act, which allows certain qualifying patients access to “low-THC cannabis,” meaning that the marijuana contains 10% or more cannabidiol and no more than 0.5% THC. Currently, the only condition that qualifies a patient for medical use is intractable epilepsy, and the patient must be a permanent resident of Texas. While minors with intractable epilepsy may be eligible, they must have two physicians concur that the benefit that the minor would receive outweighs potential risk.

Unlike most other medical marijuana states, which utilize an ID card system as part of regulation, the Compassionate Use Act requires that a patient receive care from a doctor authorized to participate in the program. The doctor may only authorize low-THC cannabis use by the patient once he has found at least two FDA-approved drugs to be ineffective. The doctor must also write a prescription for the cannabis use, which includes dosage recommendations, administration instructions, and the number of refills. It is worth noting, however, that a number of federal court cases have indicated that the state’s prescription approach may put doctors at risk, which in turn may affect how the Act functions when implemented. Receipt of a prescription for low-THC cannabis exempts individuals from most Texas criminal possession laws, provided the marijuana meets the low-THC standard.

At this time, the state has not implemented restrictions regarding unlawful areas for patient possession or consumption. In addition, patients are not allowed to grow their own plants.

Although the Act passed in 2015, the state has until September 2017 to issue at least three licenses to businesses who wish to operate. Licensing fees for businesses are currently $6,000, and a two-year license also costs $6,000. The state will require dispensing organizations to have certain security measures, records and operational standards, and to submit to periodic inspections. The cannabis must also be tracked through an inventory control system, tested, and packaged according to state standards.

Recreational

At this time, Texas has no legislative plans to legalize marijuana for recreational purposes.

Florida

Medical

In 2014, Florida citizens voted on the Florida Right to Medical Marijuana Initiative. Although 57.6% voted in favor of the initiative, Florida law requires a supermajority of 60% on referred amendments, so the amendment failed by 2.4%. The initiative delineated that non-medical use, possession, production, and sale of non-medical-use marijuana would remain illegal, along with driving under the influence, and it would limit the use of medical marijuana solely to qualifying patients, who would receive a prescription from a licensed physician. Qualifying patients included individuals with cancer, multiple sclerosis, glaucoma, hepatitis C, HIV, AIDS, ALS, Crohn’s disease, Parkinson’s disease, or other conditions, which would be at the discretion of the treating physician. In addition, employers and public places would not be required to accommodate its use.

Opponents of the initiative criticized it for its “loopholes,” particularly concerning its language. Most notably, they argued that the bill implied that it would immunize doctors from malpractice claims for negligent prescribing, and its lack of clarity regarding what would constitute a debilitating illness generated criticism as well.

In November 2016, citizens will vote on Amendment Two, which resembles much of the 2014 initiative, but with more clarity. Specifically, it explicitly states that it does not immunize doctors from liability for negligent marijuana prescription, and it contains redrafted language regarding who qualifies for treatment. It also addresses parental consent for use by minors, which requires that a parent or legal guardian submit written consent to the use. Recent polls indicate that, currently, approximately 65% of Floridians are in favor of Amendment Two.

Recreational

Currently, Florida has no legislative plans or ballot initiatives pending regarding legalization of marijuana for recreational purposes.

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