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Municipalities Tackle Medical Marijuana Law

(from Maine Townsman, June 2010)
By Douglas Rooks

Catherine Cobb, the state Department of Health and Human Services official who soon will decide where to locate Maine’s first eight medical marijuana dispensaries, has heard many stories on the topic since voters passed a new referendum last November.

One that stands out in her mind came from a 76-year-old man, who had been smoking marijuana for a medical condition many years before voters first legalized the drug for medical use in 1999.

“He would go out on a street corner and try to find a kid who said he had access to a dealer,” she said. “At least half the time, the kid would take his money and just disappear.”

That, in a nutshell, was the problem with the system set up under the first referendum. Those with a recommendation from a physician could grow and process marijuana plants – or seek a supply on the black market. There was no safe, consistent or reliable source, something many patients said was a hardship.

When the second medical marijuana referendum was proposed and certified for the ballot in 2009, there was little opposition. Voters approved the measure, Question 5, by 332,000 votes in favor to 232,000 opposed. Fifty-nine percent of all voters approved the ballot item, a similar margin to the 1999 referendum, which 61 percent of all voters favored.

OVERHWHELMING SUPPORT

“Mainers overwhelmingly support the use of marijuana for this purpose,” said Jonathan Leavitt, director of the Maine Marijuana Policy Initiative, which campaigned for the new law. “Only a few law enforcement and municipal officials have a problem with this.”

Some municipal officials beg to differ with that assessment, saying that any expanded access to a substance that remains banned under federal law must be done carefully.

WIDE PUBLIC SUPPORT

Most acknowledge that the law has wide public support and that, under terms of implementing legislation enacted in April, town and cities can regulate marijuana dispensaries within their borders but they cannot ban them.

DHHS’ Division of Licensing and Regulatory Services, which Cobb heads, will soon decide where the first dispensaries will be located. The Legislature directed that there be one in each of the eight public health districts in Maine (See map on pg 11). Those districts generally follow the lines created for district attorneys more than 30 years ago. After a year of operation, DHHS will evaluate how well the public is being served. It could permit further dispensaries at that time.

There are now emergency rules on the books. Applicants wishing to operate medical marijuana dispensaries – probably at least 60 if then – soon will file their applications. Most are expected at the June 25 deadline.

“Under the law, the applications are public documents and since this is a competitive process, they probably don’t want competitors to see what they’re proposing,” Cobb said.

She expects “a flood” of applications on the last day, after which DHHS will begin its review. Each applicant must pay a $15,000 filing fee, all but $1,000 of which is refundable if the application is unsuccessful. Successful applicants will be notified on July 9.

Medical Marijuana at a Glance ChartWHERE WILL THEY GO?

No one knows yet where dispensaries will be, but there are plenty of theories. Since there will be only eight at the start, many municipal officials believe the state will prefer centrally located facilities.

That figured into deliberations at Augusta Planning Board and city council meetings. The capital city became perhaps the first municipality in Maine to enact an ordinance specifically related to dispensaries this spring when it designated its new medical zone as the site where a dispensary will be a permitted use.

The 270-acre zone, adjacent to Interstate 95, is currently home to the Harold Alfond Center for Cancer Care. It also is where MaineGeneral Health hopes to build a new regional hospital by 2015.

“The planning board saw this as a health-related business, with this as the most appropriate place,” said City Planner Matt Nazar. Hospital officials raised no objections to the designation and the small number of homeowners in the zone favored it, he said.

“They believe this will increase the value of their property,” Nazar said.

Augusta is also considering zoning for the growing operations that will be included with dispensary approvals, probably in one of the industrial parks. Nazar explained that the grow sites can be adjacent to dispensaries but they do not need to be.

Security concerns are to be expected in such situations. Cobb said the final rules will include requirements for lighting, perimeter-intrusion monitors and fencing, but not – so far – security officers on a 24/7 basis.

Nazar said there has been some speculation that grow areas could be centralized, rather than having one for each dispensary. Cobb said that will happen only if a single applicant is awarded more than one dispensary permit. In that case, a single grow site could serve all the dispensaries run by that applicant.

A SLOWER APPROACHImplementing Legislation Chart

In other municipalities, officials are taking a slower approach. Bangor and Brewer, which are considered possible sites for a dispensary for the public health area comprising Penobscot and Piscataquis counties, both passed moratoriums on dispensaries shortly after the referendum vote. Both also recently extended them another 180 days, through the end of this year. The second extension passed narrowly in Bangor, however, with a 5-4 vote by the city council.

Linda Johns, city planner for Brewer, said that the council raised immediate concerns following the November election.

“We have nothing in the zoning ordinance concerning dispensaries and they wanted to make sure we had enough time to properly consider this,” Johns said.

At the moment, she said, Brewer is in a “research phase,” studying ordinances from Maine and other states. It is likely to go ahead with new zoning rules this fall.

One possible model includes the methadone treatment center rules that Brewer enacted earlier. There are no methadone centers in Brewer yet, although there are in Bangor. Johns said the council might use some of the same rules for a marijuana dispensary. These include provisions on parking, screening, lighting and security. Municipalities are permitted to enact more restrictive rules than the state’s, which will cover many of the same subjects, she noted.

Jonathan Leavitt, whose advocacy group considers moratoriums unnecessary, said there are fewer than a dozen statewide, although he did not have a specific count. At least one moratorium, in Topsham, was approved by a town meeting vote.

THE FARMINGTON PLAN

Farmington is another town that considered using methadone treatment center rules as a guideline. But, according to Town Manager Richard Davis, selectmen decided that would be too restrictive.

“They see this as more of a business that should be permitted in the general purpose zone, along with other businesses,” Davis said.

Farmington is one town – neighboring Wilton is another – where applicants have already submitted site-plan applications for a specific building to be used as a dispensary.

In Farmington, that would be the former Rite Aid building on Wilton Road, where Lucas Sirois and Charles Crandall, local businessmen, have submitted an application called Ahead Care.

Davis said he isn’t sure how serious a prospect a dispensary would be at either site. Franklin County is grouped with Androscoggin and Oxford counties in a public health district. Lewiston or Auburn may offer more competitive sites, he said. A location near Franklin Memorial Hospital would also be permitted under the proposed new ordinance, he added.

The effect of moratoriums on the state selection process is unknown and Cobb said she could not directly address it.

There is as yet no date for when dispensaries will begin operating. While some would like that to be sooner rather than later, Cobb said that some supporters of the law initially saw the June 25 deadline as too soon.

“They were trying to get their organizations licensed and registered with the state and that takes time,” she said.

Along with the question of where dispensaries are located are concerns about how the new system will work.

DOCTORS ARE SPLIT

Gordon Smith, executive director of the Maine Medical Association, said that marijuana used for therapeutic purposes remains intensely controversial among physicians.

“Family doctors who work directly with patients tend to be the most supportive,” Smith said. “Psychiatrists and addictionologists tend to have the most concerns.”

Marijuana is a difficult drug for doctors to work with, he said. “They’re used to working with pharmaceuticals, where there’s a known, safe dosage and they can be sure what the patient is getting,” said Smith.

There are no such assurances with marijuana under current law, he said, though dispensaries are likely to offer more consistency.

Because of the widely divergent attitudes among physicians, Smith served on a task force that crafted the implementing legislation and on panels such as the Maine Medical Cannabis Conference, held in Portland on June 5.

“It didn’t seem that any one doctor could represent the profession,” Smith said. The medical association testified against the initiated bill that became the referendum but did not actively campaign against it.

“The only opposition came from some law enforcement groups, and that was late and not particularly strong,” he said.

If Mainers have made up their minds about the medical potential of marijuana, Smith said he’s glad that the state is erecting numerous safeguards concerning its use.

CALIFORNIA OR BUST?

In California, activists have certified a measure for the November ballot that would legalize marijuana for any use by adults. That doesn’t seem likely to happen in Maine any time soon.

Asked about marijuana’s potential, Jonathan Leavitt consistently refers to its medical properties, though he said patients should be the sole judges of its usefulness to them. Leavitt said it’s important that the permission from physicians is considered a “recommendation” rather than a prescription. Ultimately, he would like to see all health-care providers authorized to write them.

Leavitt noted that caregivers already are authorized under the statute to provide marijuana to patients, even before the dispensaries begin operating. But like the original referendum, there is no regulation concerning how providers obtain their supplies.

Also, new in the law is a provision that anyone seeking marijuana from a dispensary must register with the state. Under the old, informal system, patients simply had the physician’s recommendation, which could lead to conflicts with law enforcement officers.

Cobb said that one of the fine points of the new registry and dispensary system is how law enforcement agencies will be notified who has the legal right to possess marijuana. But the registry will be mandatory. Until Dec. 31, 2010, the old informal system remains, “but after that, people have to choose,” she said.

Marijuana sold by dispensaries is also subject to Maine’s 5 percent sales tax, which will provide some revenue to municipalities through revenue sharing.

Along with the business of setting up legal access to marijuana for medical purposes, there is a certain novelty to this transition for a drug that has long been part of a rebellious youth culture, even if many pot users are now facing old age.

Gordon Smith said that those who haven’t used marijuana in a long time, and now are seeking it as medicine, should be careful.

“The stuff produced today is a lot more potent,” he said. “This isn’t what people were smoking back in the 1960s and ’70s.”

Catherine Cobb, who usually spends more of her time reviewing Certificate of Need applications from hospitals and other professional licensing issues, said medical marijuana does stand out from the pack.

“This certainly isn’t what I’d been expecting to do after 30 years at DHHS,” she said.