Where Theres Smoke, Theres Fire: Vermonts Path Toward Legalization - - PowerPoint PPT Presentation

March 20, 2018

Where There’s Smoke, There’s Fire: Vermont’s Path Toward Legalization

By Daniel Crisp

Marijuana: A Snapshot of Vermont

• Medical Marijuana
• 5,313 Registered Patients and 624 Registered Caregivers as
• f December 18, 2017.
• Almost 2,000 new patients since October 1, 2016.
• Adult-Use Marijuana
• Approximately 80,000 Vermonters are regular marijuana

users.

• Vermonters estimated to consume 15 and 25 metric tons
• n marijuana.
• $125 mil to $225 mil a year spent on marijuana.
• Tax revenues on Vermonters’ use could be $20 mil to $75

mil annually.

Vermont Medical Marijuana Law

• In 2004, the Vermont General Assembly passed “An Act

Relating to the Medical Use of Marijuana.”

• 2015 and 2017 revisions to the Act.
• To be a registered medical marijuana patient requires:
• Vermont Resident.
• Bona-fide health care professional-patient relationship.
• Diagnosed with a debilitating medical condition.
• Application for registration.
• Medical verification form.
• Registered caregivers.
• Restrictions.

Vermont Care Facilities and Landlord/Tenant Laws

• Pre-July 1, 2018, Vermont laws did not address the use of

medical marijuana at care facilities or at rental properties.

• Many DAIL regulations pre-date Vermont’s medical

marijuana law.

• Residents’ Rights for Nursing Homes
• Same rights as on CMS.gov.
• Residents’ Rights for Residential Care Homes and Assisted

Living Residences.

Vermont Act 86 - Decriminalization

• Effective July 1, 2018
• Eliminates penalties for possession of less than one ounce of

marijuana and cultivation of two mature and four immature marijuana plants.

• Retains penalties for possession, dispensing and sale of

larger amounts of marijuana.

• Cannot be consumed in public places.
• Parks
• Schools
• Restaurants
• Places of Public Accommodation

Vermont Act 86 – Important Provisions

• Landlords may ban possession or use of marijuana in a lease

agreement (18 V.S.A. § 4230a(b)(2)(E)).

• Employer is not required to permit or accommodate the use,

consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace (18 V.S.A. § 4230a(e)(1)).

• Employer may adopt a policy that prohibits the use of marijuana

in the workplace (18 V.S.A. § 4230a(e)(2)).

• Employee cannot sue an employer who discharges that employee

for violating a policy that restricts or prohibits the use of marijuana by employees (18 V.S.A. § 4230a(e)(3)).

• Each “dwelling unit” may have two mature and four immature

plants (18 V.S.A. § 4230e(a)(2)).

• Personal cultivation may only occur on property in possession of

cultivator or with the written consent of the person in lawful possession of the property (18 V.S.A. § 4230e(b)(1)).

• Gov. Scott’s Executive Order No. 15-17
• Creates the Governor’s Marijuana Advisory Commission.
• Three Subcommittees.
• Roadway Safety.
• Education and Prevention.
• Taxation and Regulation.

Adult-Use Marijuana in the Region

• Massachusetts
• Accept retailer license applications by April 1st .
• Issue retail licenses starting June 1st.
• Retail shops should open on July 1st.
• Number of retailers as of July 1st? Unknown.
• Maine
• Moratorium on the adult-use marijuana market extended

to April 18th.

• Canada
• Final vote to be cast on July 7th.

Marijuana – Federal Law

• Listed on Schedule I of the Controlled Substances Act.
• High potential for abuse.
• No currently accepted medical use in treatment.
• Lack of accepted safety for use of the drug under medical

supervision.

• Department of Justice Memos
• 2009 Ogden Memo
• 2011 Cole Memo
• 2013 Cole Memo

Marijuana – Federal Law (Cont’d)

• 2018 – DOJ Memo to U.S. Attorneys
• Current law reflects Congress’s determination that

marijuana is a dangerous drug and that marijuana activity is a serious crime.

• Limited resources.
• Previous guidance on marijuana enforcement is

rescinded, effective immediately.

• Prosecutorial discretion.
• The 2018 Memo has had little effect on the adult-use

marijuana industry.

Two Questions to Ask

• What should be our facility’s attitude – for residents and

employees – toward medical marijuana? Adult-use marijuana?

• Do our current policies adequately reflect our attitude? If

not, do we need to refresh our existing policies or adopt a new marijuana-specific policy(ies)?

• Numerous considerations in answering these questions.

Marijuana – Considerations for Policies Prohibiting or Permitting Use

• Federal Considerations.
• No right under the U.S. Constitution.
• Marijuana remains illegal under federal law.
• Schedule I of the Controlled Substances Act.
• June 2005 U.S. Supreme Court decision: Congress can

prohibit cultivation of medical marijuana for personal use.

• All businesses must ask
• Receive federal funds?/federal grants subject to

recapture?

• Regulated by federal govt?
• Enter into contracts with federal govt?

Marijuana - Considerations for Policies Prohibiting or Permitting Use (Cont’d)

• Vermont considerations.
• No right under the Vermont Constitution.
• No explicit statutory or regulatory right for a resident to use

marijuana at your facility.

• Use of medical marijuana must not endanger the health or

well-being of another person.

• Facility operators are charged with keeping premises safe,

clean and fit for human habitation and in compliance with applicable building codes

• Landlords may ban use of marijuana in lease agreements.
• Property owner must consent to on-site cultivation.
• Other Act 86 provisions

Marijuana - Considerations for Policies Prohibiting or Permitting Use (Cont’d)

• Facility Considerations (General)
• Is the facility itself subject to a lease?
• Do you have any loans? What do your loan documents say?
• Would your insurance policy cover, for example, a fire caused by a

resident who was smoking marijuana?

• Facility Considerations (Residents)
• Will your facility provide assistance in obtaining marijuana?
• Safety of the Residents
• Considerations for smoking, vaping, edibles, etc.
• Where can it be used?
• What are the consequences for violating the facility’s rules?
• Who administers the marijuana to residents?
• Resident? Outside registered caregiver? Staff as registered

caregivers?

Marijuana - Considerations for Policies Prohibiting or Permitting Use (Cont’d)

• Facility Considerations (Residents)
• Issues relating to storing marijuana on-site
• How will marijuana be stored?
• Who will have access?
• How will the supply be monitored?
• How to minimize risk of diversion by employees?
• How will authorized use be verified?
• Facility Considerations (Employees)
• How do Act 86’s employment law provisions fit within existing

Vermont employment law (e.g., Vermont’s drug testing law)?

• Ask an attorney that specializes in employment law. DRM

has several.

Thank You!

• Any questions?