Grow Your Own Case

Recently, I posted about a Leon County, Florida Court case in which the Judge found in favor of a medical marijuana patient who sought permission to grow his own medical marijuana because he needed the raw plant for the treatment his state-certified doctor had prescribed to him for his stage 4 lung cancer.  Medical cannabis dispensaries in Florida do not provide raw plant product.  Following that Court Order, Florida’s Department of Health filed an appeal.

The First District Court of Appeal in Florida has temporarily blocked that ruling and reinstated the stay that prevented Joe Redner, the medical marijuana patient, from growing his own medical marijuana.  We will continue to monitor this matter.  Mr. Redner has indicated that he will pursue his case to the Florida Supreme Court.

Smoking Case

As I’ve posted before here and here, the regulations implementing Florida’s Amendment Two (medical marijuana) banned the smoking of medical marijuana.  And, not surprisingly, litigation was immediately filed challenging the smoking ban.

The trial in the case challenging the smoking ban is scheduled to start tomorrow and we will be monitoring it as it progresses.  The trial judge in the smoking case is Leon County Circuit Judge Karen Gievers.  Judge Gievers is the same Judge who ruled in favor of Joe Redner in the grow case noted above.

In Other Florida News

Despite a slow start in implementing medical marijuana and getting licenses issued and regulations written, Florida now has more than 100,000 registered medical marijuana patients.

Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Green California Vector IllustrationIn an Alert published Thursday, Fox partner Tracy Gallegos and associate Lynnel Reyes examined new emergency regulations recently proposed by the California Department of Public Health to allow Type 6, 7, or N cannabis licensed manufacturers to register their facility as a “shared-use” facility. The regulations also provide for a new license, the Type S license, which would allow licensees to create infusions, package and label cannabis products and conduct extractions with butter or food grade oils (provided that the extract or concentrate produced may only be used in infused products manufactured by that licensee.) The regulations are expected to be approved by tomorrow, April 13, 2018.

Tracy and Lynnel outline the details of the proposed regulations and the new Type S license, including its benefits, associated concerns and the application process.

To read their full discussion, please visit the Fox Rothschild website.

Florida’s medical marijuana regulations do not presently permit medical marijuana patients to grow their own medical marijuana.  Florida’s Department of Health’s website states the following:

Florida law only allows the licensed dispensing organizations to grow, process and dispense marijuana. The department will refer any business or individual suspected of violating state law to local law enforcement for investigation. It is important to remember marijuana is illegal under federal law.

Joe Redner, of Tampa Florida, challenged this Florida regulation and argued in his lawsuit that he was entitled to grow his own medical marijuana because he needs the raw plant for the treatment his state-certified doctor has prescribed to him for his stage 4 lung cancer.  Medical cannabis dispensaries across the state do not provide raw plant product.

Leon County Circuit Judge Karen Givers recently ruled in Mr. Redner’s favor and found that the

Florida’s Constitution provides Mr. Redner’s right to grow his own medical marijuana so he can follow his physician’s recommendation.  Until and unless the [Florida Department of Health] stops violating its Constitutional duty and adopts the mandated presumptive regulation, the evidence clearly demonstrates that Mr. Redner is entitled to follow the recommendations of his certified physician.

However, this ruling is limited solely to Mr. Redner and no other Florida medical marijuana patients can grow their own medical marijuana pursuant to this ruling.  The Florida Department of Health is likely to appeal the Court’s Order.

Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Yesterday, a judge in Arkansas enjoined the issuance of any medical cannabis cultivation licenses because of irregularities in the process. I was interview by a local TV station, which can be seen here; http://www.nwahomepage.com/news/arkansans-may-wait-another-year-before-getting-medical-marijuana/1066923671.

The New York City skyline with skyscrapers and a rainbowOn May 16, 2018, Fox partner Alexander Leonard and associates Matt Kittay and Zev Singer will present a live webinar on New York’s new medical marijuana law and its impact on employers. Alexei, Matt and Zev will discuss key provisions of the new law and their interplay with federal law; practical implications for employers including drug testing, background checks and privacy concerns; as well as disability discrimination issues and off-duty/off-premises policies. They’ll also explore pertinent hypotheticals surrounding the new law.

This live webinar is designed for human resource professionals, business owners, attorneys, business managers, benefits and payroll professionals, operations managers, presidents, vice presidents, supervisors, managers, controllers and accountants.

We invite you to attend and learn more about the latest developments for medical marijuana in New York. For full details and to register for the webinar, please visit the Lorman Business Center website.

Jesse Harris writes:

Is a landlord who accepts rent from a cannabis dispensary tenant entitled to bankruptcy relief in a federal forum? In In re Olson, 2018 WL 989263 (B.A.P. 9th Cir. Feb. 5, 2018), the Bankruptcy Appellate Panel for the Ninth Circuit answered: maybe, maybe not, but either way, the bankruptcy court must make specific factual findings based on evidence in the record and explain its reasoning.

U.S. Court of Appeals for the Ninth Circuit building in San Francisco, CAIn Olson, a 92-year-old, legally blind landlord owned a shopping center in which a marijuana dispensary—operating legally under California law—was a tenant. Facing a foreclosure sale of her property, as well as ongoing litigation with the dispensary tenant, the debtor filed for Chapter 13 relief. The debtor continued to collect rent from the dispensary tenant, and ultimately proposed a Chapter 13 plan that included the sale of the shopping center within six months of plan confirmation. Before confirmation, however, the bankruptcy court sua sponte dismissed the bankruptcy case because the debtor was receiving “illegal proceeds” by “leasing property for an unlawful purpose under federal law, although lawful under state law.”

The debtor appealed, arguing that the bankruptcy court abused its discretion by dismissing the case. The Ninth Circuit agreed. In vacating the bankruptcy court’s order, the Bankruptcy Appellate Panel found that the bankruptcy court failed to articulate its legal basis for dismissing the case with “clarity and precision.” Specifically, the panel noted that the bankruptcy court did not make findings on its conclusion that the debtor violated the Controlled Substances Act by accepting the dispensary’s rent; that the debtor acted in bad faith; that the trustee would be administering the proceeds of an illegal business; or that the rents were to be used to fund the plan.

A concurring opinion written by Judge Maureen A. Tighe also pointed out that “[w]ith over twenty-five states allowing the medical or recreational use of marijuana, courts increasingly need to address the needs of litigants who are in compliance with state law while not excusing activity that violates federal law.” According to Judge Tighe, “the presence of marijuana near the [bankruptcy] case should not cause mandatory dismissal.”

The holding in Olson not only highlights the ongoing tension between the Controlled Substances Act and state marijuana programs, but it also emphasizes the need for landlords to carefully consider leasing property to cannabis businesses. Should those landlords eventually seek bankruptcy relief, such relief may be limited. That said, the panel in Olson appears to have equipped landlords who choose to lease property to cannabis businesses with certain bankruptcy options to avoid the “harsh penalty of dismissal,” such as rejecting the lease under Section 365 of the Bankruptcy Code.

Jesse M. Harris is an associate in the firm’s Financial Restructuring & Bankruptcy Department, based in its Philadelphia office.

As Florida’s 2018 legislative session comes to a close, its time to review legislative changes to Florida’s medical marijuana laws.

First, Florida’s Senate passed HB 6049,  This bill removes the requirement that the Florida medical marijuana license (Florida has a vertical licensing system) reserved for a Black farmer must go to a Black farmer who is a member of the Black Farmers and Agriculturalists Association.

As I explained in my earlier posts (here and here), Columbus Smith, a Black farmer from Panama City, filed a lawsuit challenging the law implementing Amendment Two (medical marijuana) alleging that the law was unconstitutional.

Second, the Florida legislature has withheld funds for the Florida Department of Health (putting the funds in reserve) in an effort to spur the Department of Health to move more quickly on regulations implementing Amendment Two (medical marijuana) which passed in 2016.

Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Richard L. Holzworth writes:

Medical cannabis research
Copyright: thommorrisphotography / 123RF Stock Photo

Despite Pennsylvania’s medical marijuana industry being in its infancy, more than 17,000 patients have registered for the program, and more than 4,000 already have received their medical marijuana card from the Department of Health. Now that cannabis products have burst onto the scene, hospitals and other residential healthcare facilities are struggling with what to do when patients present medical marijuana cards and attempt to use marijuana in the facilities. Indeed, it is high time for the healthcare providers to update their policies and procedures to address these growing concerns.

Policy Considerations

In developing a medical marijuana policy, it is important for healthcare administrators to remember that medical marijuana, although legal in most states, is still classified by the federal government as a Schedule I Controlled Substance. With medical marijuana laws varying from state to state, hospitals, healthcare associations, and other stakeholders have developed and implemented a wide range of policies addressing the use and possession of medical marijuana products. These policies range from strict, categorical prohibitions to sanctioned self-therapy during hospital admission. Regardless of a healthcare facility’s philosophy (either from a political or medicinal perspective) on medical marijuana, it is important for each institution to develop and implement a comprehensive set of policies and procedures to address the inevitable circumstance of a patient presenting with a medical marijuana ID card or cannabis products in hand.

Each healthcare facility should consider a number of factors to ensure that policies and procedures align with the facility’s individualized needs:

  • Does the facility treat a population or particular demographic with a higher rate of medical marijuana use?
  • Does the facility specialize in treating one or more of the 17 “serious medical conditions” that qualify a patient for medical marijuana use?
  • Does the institution receive federal funding that could be impacted by permitting the use of medical marijuana?
  • What is the facility’s existing human resources policy on a drug free workplace, and does this policy address use of medical marijuana by employees?
  • What is the facility’s controlled substance diversion prevention protocol?
  • What is the facility’s current policy for medications brought into the facility by the patient?
  • What is the facility’s intake procedure, and how does it address medical marijuana use?

In Pennsylvania, neither the Medical Marijuana Act nor the applicable regulations specifically address these issues. However, guidance can be found in the regulations regarding employer-employee relations, the Department of Health suggestions for schools, and the policies in place at facilities in states with more mature medical marijuana programs.

Employer Regulations

Under the Pennsylvania Medical Marijuana Act, it is unlawful for an employer to “discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee […] solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” § 10231.2103(b)(1). However, nothing the law prevents an employer from disciplining an employee who is under the influence of marijuana (regardless of the source of the marijuana) or for working while under the influence of marijuana when the employee’s conduct falls below the standard normally accepted for that position. § 10231.2103(b)(2). In other words, employers cannot take an “adverse employment action” simply because an employee has been certified by a physician to use marijuana products, but employers are not obligated to tolerate use of marijuana or substandard performance because of marijuana. Moreover, employers are not required to accommodate the use of marijuana products in the workplace.

For hospitals and other residential healthcare facilities, these employer-employee provisions in the Medical Marijuana Act suggest that the Pennsylvania lawmakers did not intend to require healthcare providers to tolerate or accommodate the use of medical marijuana by patients (or anyone else) on the premises. Importantly, Pennsylvania’s Medical Marijuana Act does not “require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.” § 10231.2103(b)(3). Accordingly, it is unlikely that healthcare facilities or their employees will be required to take any action that is prohibited under federal law, e.g. possession of marijuana products or facilitation of marijuana use.

School Guidelines

The Pennsylvania Medical Marijuana Act directs the Department of Education to promulgate regulations for the use of medical marijuana on school district property. Although those regulations have not been issued, the Department of Health has provided temporary guidelines for schools. According to Department of Health, students should be prohibited from bringing medical marijuana products on school property or storing products at the school. Neither the students nor school personnel should be permitted to administer medical marijuana.

In order for a student to use medical marijuana during the school day, the Department of Health recommends that a parent, legal guardian, or registered caregiver bring the medical marijuana product to school, administer the product, and then remove the unused product from the premises. These arrangements should be made with school administration in advance and in accordance with all visitor protocols.

Even though these temporary guidelines are not mandatory and are not specifically designed for hospitals and other residential healthcare facilities, the concept could be implemented in a healthcare setting. The Medical Marijuana Act enables qualified patients to designate a “caregiver” who is registered with the Department of Health and permitted to purchase, transport, and administer medical marijuana products. With this in mind, hospitals and other residential facilities could permit a caregiver to possess and administer medical marijuana products to a patient, and then remove the unused product from the premises.

Examples from Other States

The Washington Health Care Association has published a sample medical marijuana policy for use by long-term care facilities. This policy outlines a protocol that is very similar to the Pennsylvania Department of Health’s guidance for school districts. The Washington policy requires each patient to designate a “provider” who will bring medical marijuana product into the facility, administer the medication, and then remove the unused product. The policy also states that staff will not assist patients in obtaining or using medical marijuana, store medical marijuana, or ensure that medical marijuana is being used appropriately. Staff involvement is to be limited to confirming a patient’s status as a qualified medical marijuana user and ensuring that the use of medical marijuana does not impact any other patients. Should a designated provider or patient fail to follow the policy, the facility reserves the right to enforce appropriate consequences, including discharge from the facility.

The Minnesota Hospital Association has published three different policy templates for medical marijuana use, which offer healthcare providers a range of options for handling medical marijuana issues. The first template completely bans medical marijuana from hospital property. If a patient is found to be using or in possession of marijuana products, this policy directs hospital personnel to first determine whether the patient is a qualified and certified to use medical marijuana under state law. Qualified patients will be asked to remove medical marijuana products from the facility, or the products will be secured with the patient’s other personal belongings. For patients who are not qualified users, the hospital will dispose of the marijuana in accordance with hospital policy for handling other illicit drugs.

Generally, the second and third policy templates offered by the Minnesota Hospital Association suggest that qualified patients should be permitted to continue use of medical marijuana in accordance with state regulations. These policy options include suggested protocols for incorporating medical marijuana as either a “self-directed therapy” or as part of the hospital’s medication process. Importantly, these policy templates include provisions that require patients to verify that they are enrolled in the state’s medical marijuana program, and state that the hospitals are not required to certify a patient as eligible for medical marijuana or to permit the continued use of medical marijuana during an in-patient stay.

Takeaways

Drafting comprehensive medical marijuana policies and procedures is an imperative for Pennsylvania healthcare facilities, including hospitals, long-term care facilities, nursing homes, and others. However, the specifics of these policies and procedures must be tailored to each facility’s individualized interests and needs. These policies also must balance patient rights and interests, compliance with divergent state and federal law, and the facilities’ own financial, operational, and political circumstances. This can be accomplished with the careful evaluation of existing facility policies, practices, and operations, and with the assistance of experienced counsel.

Richard L. Holzworth is an associate in the firm’s Litigation Department, based in its Pittsburgh office.

As I’ve posted before, Florida’s implementation of Amendment Two (medical marijuana) does not permit patients to smoke medical marijuana.

Not surprisingly, the ban on smoking of medical marijuana triggered litigation.  Now, that case has been set for a bench trial in May 2018.

The lawsuit seeks a declaratory judgment that the smoking ban is contrary to the amendment’s language, which itself does not expressly say medicinal cannabis can be smoked. The suit is against the Department of Health, which regulates medical marijuana.

 

Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.