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Medical Marijuana Act 2006 - New Rules Clarify the Statute
In 1998, Oregonians passed the Oregon Medical Marijuana Act (OMMA). In 2005, legislators passed Senate Bill (SB) 1085, which became effective January 1.
After a bill becomes a law, the executive body administering the law or statute makes rules. The Oregon Administrative Rules (OAR) for SB1085 are available at the Department of Human Services (DHS) OR Medical Marijuana Program (OMMP) website www.healthoregon.org/mm
The new statute codifies sharing of useable marijuana among cardholders and reimbursement only for costs of supplies and utilities associated with marijuana production when a patient designates another to grow for him/her. Although better, it remains illegal for registered cardholders to charge each other for true production costs. In my opinion, fixing this section during the 2007 legislative session to allow any registrant to charge another registrant for all expenses in producing cannabis would solve problems of the newly diagnosed cardholder who needs medicine immediately or the registrant without medicine because of garden failure.
OAR clarifies that new possession limits under SB1085 are 6 mature plants, 18 seedlings, and 24 ounces of useable marijuana. A seedling has no flowers and is less than 12 inches in any dimension. If a plant is bigger than a seedling, it is considered mature. That means a 13-inch non-flowering plant is now defined as mature while immature plants are no longer defined. With improved possession limits may come severe penalties if any registrant exceeds limits.
OMMP begins criminal background checks (CBC) on persons applying to grow marijuana because after January 1, 2006, a first violation of the Controlled Substances Act yields a five-year restriction on growing while a second means a lifetime prohibition. Such violations also carry a possession restriction to one ounce.
For clarification, I contacted DHS OMMP manager Pamela Salsbury. She states OMMP had to make decisions about the CBC because OMMP is required by statute to run a CBC on persons who may grow marijuana. This check is only for convictions after January 1, 2006, that would restrict a person from being able to grow. The OMMP could have done this 1. by having the grower get local Law Enforcement to run the CBC; 2. outsource the CBC to another state agency; or 3. run checks within the OMMP. To maintain confidentiality, OMMP decided to run checks internally or within OMMP. Ms. Salsbury states OMMP chose, “a web-based program that is extremely confidential. This way we can manage searches [internally] without involving an outside source. And [OMMP is] able to conduct business in a timely manner while maintaining the most protection for our patients and their information.”
A multi-patient garden exists where there is more than one garden located at only one address. OAR clarifies that if the patient or caregiver is not present at the garden then the person responsible for the marijuana growsite may grow for a maximum of 4 patients and/or caregivers at any given time.
This limit on the person responsible for the marijuana growsite to 4 per address does not exist for the designated primary caregiver. And, there is no limit on numbers of patients in cooperatives if multiple patients live at one address and each has a personal garden.
Although both statute and rules seem clear, the possibility remains that zealous prosecutors may challenge caregivers who exceed four patients at one address. The 2007 legislative session could yield an amendment making a four-patient size garden the maximum size garden for all.
Note two important things here:
1. Under SB1085, a four-patient garden can have 24 mature plants and 72 seedlings. The feds count this as 96 plants.
2. The federal five-year mandatory minimum prison sentence applies to 100 or more plants. Doing the math yields the following solution: So long as this federal benchmark and sentencing guideline persists, the four-patient-garden may be the prudent limit for OMMP cardholders until federal issues resolve.
Anyone using or considering medical marijuana in Oregon should carefully read both the new statute and administrative rules. Both are easily accessible by Internet or by calling OMMP in Portland (971-673-1226) to request an application packet. It is also prudent to consider a legal opinion in advance, if there is doubt. Particularly in criminal justice law, an ounce of prevention is worth pounds of cure.
Richard “Rick” Bayer, MD, FACP is board-certified in internal medicine, a Fellow in the American College of Physicians (FACP), and practiced in Oregon many years.
Site updated Fall 09