Who is a member?
Our members are the local governments of Massachusetts and their elected and appointed leadership.
Dr. Lauren Smith
Interim Commissioner
Department of Public Health
Boston
Dear Commissioner Smith,
On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association appreciates the opportunity to offer testimony on draft regulation 105 CMR 725.000: Implementation of An Act for the Humanitarian Medical Use of Marijuana. The draft regulation lays out a practical framework to implement the medical marijuana law approved by the voters of Massachusetts in November of 2012, and represents a thoughtful approach to many issues of concern to our communities. The Department of Public Health (DPH) is to be commended for the methodical and deliberative process it has undertaken with the formulation of the draft regulations, accepting public comment both before and after their release.
The implementation of the medical marijuana law will impact cities and towns in significant and long-lasting ways. This letter offers detailed comments on issues of concern and relevance to municipalities and makes several recommendations to ensure the establishment of a safe and streamlined medical marijuana program that avoids harmful impacts within our communities. The MMA commends the DPH for its responsiveness to local concerns with the inclusion of several important components in the draft regulations that were suggested in the MMA’s letter of February 26 on issues ranging from the ability of local governments to regulate medical marijuana to the necessity of full compliance with all local codes and ordinances.
Local Impact
Most importantly, it is essential that any and all regulations promulgated by the DPH in no way preempt the authority or the ability of local governments to regulate medical marijuana within municipalities.
In 725.600: Municipal Requirements (A), the draft regulation states that a Medical Marijuana Treatment Center (MMTC) and registered persons must comply with all local rules, regulations, ordinances and bylaws. The MMA commends the DPH for its recognition of the necessity to ensure that all of its determinations are consistent with local law as it considers whether or not to issue a registration certificate to a prospective MMTC. This is a necessary component and criterion for evaluation of any application.
In 725.600: Municipal Requirements (B), the draft regulation states that while no local regulation of MMTCs, hardship cultivation registrations or other aspects of the law is required, nothing prohibits appropriate, lawful local oversight and regulation, including fee requirements. This is a crucial component of the regulation; local governments are best able to ascertain the public health and safety needs in their communities and to enact appropriate and responsive regulations consistent with those local needs, and cities and towns must retain the authority to do so. In fact, in March of this year, Attorney General Martha Coakley issued an advisory stating that municipalities may adopt zoning bylaws to regulate MMTCs, and may implement temporary moratoriums as a mechanism to manage a new use and study its complexity. We appreciate the consistency of the draft regulation with these determinations.
In 725.100: Registration of Medical Marijuana Treatment Centers, (B) (1) Application Requirements, Phase 1-Request to Submit an Application, the required content of what a prospective MMTC must submit to DPH in application for a registration certificate is outlined. Each submission must include documentation of the entity’s status as a Massachusetts non- profit; documentation that no one associated with the applicant has been convicted of a felony drug offense; a description of any legal actions against the applicant in other states relative to medical marijuana; and a description of the proposed location, amongst other components. The MMA requests that the language of this section be amended to require inclusion of the physical address of the prospective site in the Phase 1 application, along with the description of the proposed location. Further, if the prospective cultivation site is separate from the prospective MMTC, the physical address of the cultivation site should be included as well.
Additional language should be added to this section to require that the applicant concurrently submit a copy of the Phase 1 application to the chief administrative officer and chief of police in the municipality listed as the proposed site for the MMTC, and to the chief administrative officer and chief of police in the municipality listed as the proposed site for medical marijuana cultivation, if different. This will serve as formal notification to the municipality of the applicant’s intent to open an MMTC within its boundaries. The MMA requests that the DPH reject any application that does not include a physical address of the MMTC or separate cultivation site, if any, in its Phase 1 application.
In 725.100: Registration of Medical Marijuana Treatment Centers, (B) (3) Application Requirements, Phase 2- Application, the draft regulation lists numerous required components for submission by the prospective MMTC. This includes evidence of compliance with local codes, ordinances and bylaws for the physical address of the MMTC and for the physical address of the additional location, if any, and any demonstration of support or non-opposition furnished by the local municipality. The MMA strongly supports this language and respectfully and urgently requests that “demonstration of support or non-opposition” be defined as a letter from the chief municipal official to the DPH that indicates support or non-opposition and certifies that the prospective applicant is in compliance with all local codes, ordinances and bylaws relative to the proposed site. This letter should include any pending changes to local codes, ordinances and bylaws that may be relevant to the proposed site of the MMTC.
In 725.100: Registration of Medical Marijuana Treatment Centers, (B) (5) Action on Phase 2 Submissions, the draft regulation describes the evaluation and scoring of applications by a selection committee constituted by the DPH for the purpose of granting registrations. The MMA suggests that further language be included in this section to indicate that in the case of an application where the local municipality has indicated pending changes to local codes, ordinances and bylaws relative to the prospective MMTC site, the committee should withhold its decision on approval or rejection of an application until those changes have been adopted or not adopted via the local legislative process. In addition, the MMA requests that language be added to this section of the regulations empowering the chief executive officer or body of the potential host city or town to request a public hearing on the application in order to ensure that the city or town has the opportunity to officially submit its recommendations on the application prior to any decision by the department.
In order to promote clarity of communication between the Department of Public Health and the municipalities that will either host a medical marijuana treatment center or cultivation site, or be home to residents possessing home-growth hardship registrations, the DPH should create the position of an ombudsman specifically charged with serving as a liaison with municipalities on the issue of medical marijuana. The creation of this designated position will facilitate the close collaborative relationship that will be necessary between the DPH and municipalities to ensure the successful and safe implementation of the law. Among other responsibilities, the ombudsman should be responsible for a quarterly issuance of notification of registered medical marijuana treatment centers and their employees to the chief administrative office and chief of police within the host municipality. The ombudsman position should exist within a larger designated Enforcement Unit housed within the DPH, similar to those that have been created in other states that have legalized medical marijuana. The Enforcement Unit should maintain a toll-free number through which concerns about unlawful or inappropriate activity related to medical marijuana may be reported.
Financial Impact
Once again, the MMA commends the DPH for its inclusion of language within the draft regulation stating that local lawful and appropriate oversight and regulation, inclusive of fee requirements, of MMTCs is permitted. The implementation of this law must be cost-neutral at the local level.
Section 14B of the Act for the Humanitarian Medical Use of Marijuana states that the fraudulent use of a medical marijuana registration card or cultivation registration shall be a misdemeanor punishable by up to six months in the house of correction, or a fine up to $500. The department should establish a pathway in its final regulation to allow for the non-criminal disposition of such fines to improve local enforcement of the regulations.
Public Health and Safety Impact
In 725.300: Inspection of Medical Marijuana Treatment Centers (A), the draft regulation states that the DPH or its agents may inspect a MMTC at any time in order to determine its compliance with the law and regulations. The MMA requests that additional language be added to this section to include authorization for appropriate local officials, who may include members of a Board of Health, Department of Inspectional Services or other permit-granting offices to determine compliance with all local laws and regulations.
In 725.015: Registration of Qualifying Patients and 725.035: Hardship Cultivation Registration, the draft regulation describes the process for the issuance of registration cards for patients who will access medical marijuana from a MMTC or through hardship home cultivation. The MMA recommends that the registration cards issued by the DPH to these patients include embedded electronic information linked to a central database that may be scanned by authorized public safety officials for authentication purposes and for information relative to the patient’s authorized 60-day supply.
Further, we urge you to give full consideration to all comments and recommendations submitted by the Massachusetts Chiefs of Police Association on specific issues of public safety and crime prevention, as the concerns of local law enforcement must be addressed in order to ensure the appropriate and proper implementation of the Act in a manner consistent with the needs of our citizens and communities.
Once again, thank you for the opportunity to provide input on the draft regulation required under the Act to implement the medical marijuana law in Massachusetts. Because of the tremendous importance of this issue within communities across the state, we deeply appreciate the thorough, cautious and transparent approach that the department has undertaken to ensure that the medical marijuana regulation creates the highest of standards to minimize any potential for misuse. If you have any questions, please do not hesitate to contact Catherine Rollins of the MMA staff at (617) 426-7272 at any time.
Thank you very much.
Sincerely,
Geoffrey C. Beckwith
Executive Director, MMA