Introduced Version
House Bill 2230 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2230
(By Delegate Manypenny)
[Introduced February 13, 2013; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §16-8A-1, §16-8A-2,
§16-8A-3, §16-8A-4, §16-8A-5, §16-8A-6, §16-8A-7, §16-8A-8,
§16-8A-9, §16-8A-10, §16-8A-11, §16-8A-12, §16-8A-13,
§16-8A-14, §16-8A-15, §16-8A-16, §16-8A-17, §16-8A-18,
§16-8A-19, §16-8A-20, §16-8A-21, §16-8A-22, §16-8A-23 and
§16-8A-24, all relating to creating the "Compassionate Use Act
for Medical Cannabis; providing for protections for the
medical use of cannabis; limitations of article; prohibiting
discrimination; authorizing addition of debilitating medical
conditions; registration of qualifying patients and
designated care givers; issuance of registry identification
cards; affirmative defense and dismissal for medical
marihuana; providing misdemeanor offense and criminal
penalties for disclosing certain information; and otherwise providing for the enforcement of this article.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §16-8A-1, §16-8A-2,
§16-8A-3, §16-8A-4, §16-8A-5, §16-8A-6, §16-8A-7, §16-8A-8,
§16-8A-9, §16-8A-10, §16-8A-11, §16-8A-12, §16-8A-13, §16-8A-14,
§16-8A-15, §16-8A-16, §16-8A-17, §16-8A-18, §16-8A-19, §16-8A-20,
§16-8A-21, §16-8A-22, §16-8A-23 and §16-8A-24, all to read as
follows:
ARTICLE 8A. THE COMPASSIONATE USE ACT FOR MEDICAL CANNABIS.
§16-8A-1. Findings.
_____(a) Marihuana's recorded use as a medicine goes back nearly
five thousand years. Modern medical research has confirmed the
beneficial uses for marihuana in treating or alleviating the pain,
nausea, and other symptoms associated with a variety of
debilitating medical conditions, including cancer, multiple
sclerosis, and HIV/AIDS, as found by the National Academy of
Sciences' Institute of Medicine in March 1999.
_____(b) Studies, published since the 1999 Institute of Medicine
report, have continued to show the therapeutic value of marihuana
in treating a wide array of debilitating medical conditions. These
include relief of the neuropathic pain caused by multiple
sclerosis, HIV/AIDS, and other illnesses and injuries that often
fails to respond to conventional treatments and relief of nausea, vomiting, and other side effects of drugs used to treat HIV/AIDS
and hepatitis C, increasing the chances of patients continuing on
life-saving treatment regimens.
_____(c) Marihuana has many currently accepted medical uses in the
United States, having been recommended by thousands of licensed
physicians to more than five hundred thousand patients in states
with medical marihuana laws. Marihuana's medical utility has been
recognized by a wide range of medical and public health
organizations, including the American Academy of HIV Medicine, the
American College of Physicians, the American Nurses Association,
the American Public Health Association, the Leukemia & Lymphoma
Society and many others.
_____(d) Data from the Federal Bureau of Investigation's Uniform
Crime Reports and the Compendium of Federal Justice Statistics show
that approximately ninety-nine out of every one hundred marihuana
arrests in the United States are made under state law, rather than
under federal law. Consequently, changing state law will have the
practical effect of protecting from arrest the vast majority of
seriously ill patients who have a medical need to use marihuana.
_____(e) Alaska, Arizona, California, Colorado, Delaware, Hawaii,
Maine, Michigan, Montana, Nevada, New Mexico, New Jersey, Oregon,
Vermont, Rhode Island, Washington state and the District of
Columbia, have removed state-level criminal penalties from the
medical use and cultivation of marihuana. West Virginia joins in this effort for the health and welfare of its citizens.
_____(f) States are not required to enforce federal law or
prosecute people for engaging in activities prohibited by federal
law. Therefore, compliance with this article does not put the
State of West Virginia in violation of federal law.
_____(g) State law should make a distinction between the medical
and nonmedical uses of marihuana. Hence, the purpose of this
article is to protect patients with debilitating medical
conditions, as well as their practitioners and providers, from
arrest and prosecution, criminal and other penalties and property
forfeiture, if the patients engage in the medical use of marihuana.
§16-8A-2. Definitions.
_____For purposes of this article, unless the context otherwise
requires:
_____(a) "Bona fide practitioner-patient relationship" means:
_____(1) A practitioner and patient have a treatment or consulting
relationship, during the course of which the physician has
completed a full assessment of the patient's medical history and
current medical condition, including an appropriate personal
physical examination;
_____(2) The practitioner has consulted with the patient with
respect to the patient's debilitating medical condition; and
_____(3) The physician is available to or offers to provide
follow-up care and treatment to the patient, including, but not limited to, patient examinations.
_____(b) "Cardholder" means a qualifying patient or a designated
caregiver who has been issued and possesses a valid registry
identification card.
_____(c) "Compassion center agent" means a principal officer, board
member, employee or agent of a registered compassion center who is
twenty-one years of age or older and has not been convicted of a
disqualifying felony offense.
_____(d) "Debilitating medical condition" means:
_____(1) Cancer, glaucoma, positive status for human
immunodeficiency virus, acquired immune deficiency syndrome,
hepatitis C, amyotrophic lateral sclerosis, Crohn's disease,
agitation of Alzheimer's disease, Parkinson's disease,
post-traumatic stress disorder, depression, anxiety, addiction to
opiates or amphetamines or the treatment of these conditions;
_____(2) A chronic or debilitating disease or medical condition or
its treatment that produces one or more of the following: Cachexia
or wasting syndrome; severe or chronic pain; severe nausea;
seizures; or severe and persistent muscle spasms, including, but
not limited to, those characteristic of multiple sclerosis; or
_____(3) Any other medical condition or its treatment added by the
department, as provided in section six of this article.
_____(e) "Department" means the West Virginia Department of Health
and Human Resources or its successor agency.
_____(f) "Designated caregiver" means a person who:
_____(1) Is at least twenty-one years of age;
_____(2) Has agreed to assist with a patient's medical use of
marihuana;
_____(3) Has not been convicted of a disqualifying felony offense;
and
_____(4) Assists no more than five qualifying patients with their
medical use of marihuana.
_____(g) "Disqualifying felony offense" means:
_____(1) A violent crime that was classified as a felony in the
jurisdiction where the person was convicted; or
_____(2) A violation of a state or federal controlled substance law
that was classified as a felony in the jurisdiction where the
person was convicted, not including:
_____(A) An offense for which the sentence, including any term of
probation, incarceration or supervised release was completed ten or
more years earlier; or
_____(B) An offense that consisted of conduct for which this
article would likely have prevented a conviction, but the conduct
either occurred prior to the enactment of this article or was
prosecuted by an authority other than the State of West Virginia.
_____(h) "Enclosed, locked facility" means a closet, room,
greenhouse, building or other enclosed area that is equipped with
locks or other security devices that permit access only by the cardholder allowed to cultivate the plants or, in the case of a
registered compassion center, the compassion center agents working
for the registered compassion center. Two or more registered
qualifying patients or registered designated caregivers who reside
in the same dwelling and have a registry identification card that
removes state penalties for marihuana cultivation may share one
enclosed, locked facility for cultivation.
_____(i) "Marihuana" has the meaning given that term in section
101, article one, chapter sixty-a of this code.
_____(j) "Mature marihuana plant" means a marihuana plant that with
one or more of the following characteristics:
_____(1) The plant has flowers;
_____(2) The plant is twelve or more inches in height; or
_____(3) The plant is twelve inches or greater in diameter.
_____(k) "Medical use" includes the acquisition, administration,
cultivation, or manufacture in an enclosed, locked facility,
delivery, possession, transfer, transportation or use of marihuana
or paraphernalia relating to the administration of marihuana to
treat or alleviate a registered qualifying patient's debilitating
medical condition or symptoms associated with the patient's
debilitating medical condition. It does not include cultivation by
a visiting qualifying patient or cultivation by a registered
designated caregiver or registered qualifying patient who is not
designated as being allowed to cultivate.
_____(l) "Practitioner" means a person who is licensed with
authority to prescribe drugs to humans under the provisions of
section one-b, article five, chapter thirty of this code, except as
otherwise provided in this subsection. If the qualifying patient's
debilitating medical condition is post-traumatic stress disorder,
the practitioner must be a licensed psychiatrist. In relation to a
visiting qualifying patient, "practitioner" means a person who is
licensed with authority to prescribe drugs to humans in the state
of the patient's residence.
_____(m) "Qualifying patient" means a person who has been diagnosed
by a practitioner as having a debilitating medical condition.
_____(n) "Registered compassion center" means a not-for-profit
entity registered pursuant to section fourteen of this article that
acquires, possesses, cultivates, manufactures, delivers, transfers,
transports, sells, supplies or dispenses marihuana, paraphernalia
or related supplies and educational materials to registered
qualifying patients.
_____(o) "Registry identification card" means a document issued by
the department that identifies a person as a registered qualifying
patient or registered designated caregiver.
_____(p) "Registered safety compliance facility" means an entity
registered under section fifteen by the department to provide one
or more of the following services:
_____(1)__Testing marihuana produced for medical use, including for potency and contaminants; and
_____(2)__Training cardholders and compassion center agents. The
training may include, but need not be limited to, information
related to one or more of the following:
_____(A) The safe and efficient cultivation, harvesting, packaging,
labeling and distribution of marihuana;
_____(B) Security and inventory accountability procedures; and
_____(C) Up-to-date scientific and medical research findings
related to medical marihuana.
_____(q) "Safety compliance facility agent" means a principal
officer, board member, employee, or agent of a registered safety
compliance facility who is twenty-one years of age or older and has
not been convicted of a disqualifying felony offense.
_____(r) "Seedling" means a marihuana plant that has no flowers, is
less than twelve inches in height, and is less than twelve inches
in diameter.
_____(s) "Usable marihuana" means the flowers of the marihuana
plant and any mixture or preparation thereof, but does not include
the seeds, stalks, and roots of the plant. It does not include the
weight of any nonmarihuana ingredients combined with marihuana,
including ingredients added to prepare a topical administration,
food, or drink.
_____(t) "Verification system" means a phone or Web-based system
established and maintained by the department that is available to law-enforcement personnel and compassion center agents on a
twenty-four-hour basis for verification of registry identification
cards.
_____(u) "Visiting qualifying patient" means a person who:
_____(1)__Has been diagnosed with a debilitating medical condition;
_____(2) Possesses a valid registry identification card, or its
equivalent, that was issued pursuant to the laws of another state,
district, territory, commonwealth, insular possession of the United
States or country recognized by the United States that allows the
person to use marihuana for medical purposes in the jurisdiction of
issuance; and
_____(3) Is not a resident of West Virginia or who has been a
resident of West Virginia for less than thirty days.
_____(v) "Written certification" means a document dated and signed
by a practitioner, stating that in the practitioner's professional
opinion the patient is likely to receive therapeutic or palliative
benefit from the medical use of marihuana to treat or alleviate the
patient's debilitating medical condition or symptoms associated
with the debilitating medical condition. A written certification
shall affirm that it is made in the course of a bona fide
practitioner-patient relationship and shall specify the qualifying
patient's debilitating medical condition.
§16-8A-3. Protections for the medical use of cannabis.
_____(a) A registered qualifying patient may not be subject to arrest, prosecution or denial of any right or privilege, including,
but not limited to, civil penalty or disciplinary action by a court
or occupational or professional licensing board or bureau, for the
medical use of marihuana pursuant to this article, if the
registered qualifying patient does not possess more than:
_____(1) Six ounces of usable marihuana; and
_____(2) Twelve mature marihuana plants and twelve seedlings, if
the qualifying patient has not specified that a designated care
giver will be allowed under state law to cultivate marihuana for
the qualifying patient.
_____(b) A registered designated caregiver may not be subject to
arrest, prosecution or denial of any right or privilege, including,
but not limited to, civil penalty or disciplinary action by a court
or occupational or professional licensing board or bureau:
_____(1) For assisting a registered qualifying patient to whom he
or she is connected through the department's registration process
with the medical use of marihuana if the designated caregiver does
not possess more than:
_____(A) Six ounces of usable marihuana for each qualifying patient
to whom the registered caregiver is connected through the
department's registration process; and
_____(B) Twelve mature marihuana plants and twelve seedlings for
each registered qualifying patient who has specified that the
designated caregiver will be allowed under state law to cultivate marihuana for the qualifying patient.
_____(2) For receiving compensation for costs associated with
assisting a registered qualifying patient's medical use of
marihuana if the registered designated caregiver is connected to
the registered qualifying patient through the department's
registration process.
_____(c) All mature marihuana plants and seedlings possessed
pursuant to this section must be kept in an enclosed, locked
facility, unless they are being transported to a permissible
location, including because the cardholder is moving, the
registered qualifying patient has changed his or her designation of
who can cultivate or the plants are being given to someone allowed
to possess them pursuant to this article.
_____(d) A visiting qualifying patient may not be subject to
arrest, prosecution or denial of any right or privilege, including,
but not limited to, civil penalty or disciplinary action by a court
or occupational or professional licensing board or bureau, for the
medical use of marihuana pursuant to this article if the visiting
qualifying patient does not possess more than six ounces of usable
marihuana.
_____(e) A registered qualifying patient, visiting qualifying
patient or registered designated caregiver may not be subject to
arrest, prosecution, or denial of any right or privilege,
including, but not limited to, civil penalty or disciplinary action by a court or occupational or professional licensing board or
bureau for:
_____(1) Possession of marihuana that is incidental to medical use,
but is not mature marihuana plants, seedlings, or usable marihuana
as defined in this article;
_____(2) Selling, transferring, or delivering marihuana seeds
produced by the registered qualifying patient, visiting qualifying
patient, or registered designated caregiver to a registered
compassion center;
_____(3) Transferring marihuana to a registered safety compliance
facility for testing; or
_____(4) Giving marihuana to a registered qualifying patient, a
registered compassion center, or a registered designated caregiver
for a registered qualifying patient's medical use where nothing of
value is transferred in return, or for offering to do the same, if
the person giving the marihuana does not knowingly cause the
recipient to possess more marihuana than is permitted by this
section.
_____(f) (1) There is a presumption that a qualifying patient is
engaged in, or a designated caregiver is assisting with, the
medical use of marihuana in accordance with this article if the
qualifying patient or designated caregiver:
_____(A) Is in possession of a valid registry identification card,
or, in the case of a visiting qualifying patient, its equivalent; and
_____(B) Is in possession of an amount of marihuana that does not
exceed the amount allowed under the provisions of this section.
_____(2) The presumption may be rebutted by evidence that conduct
related to marihuana was not for the purpose of treating or
alleviating the qualifying patient's debilitating medical condition
or symptoms associated with the debilitating medical condition in
compliance with this article.
_____(g) A practitioner may not be subject to arrest, prosecution,
or penalty in any manner or denied any right or privilege,
including, but not limited to, civil penalty or disciplinary action
by the West Virginia Board of Medicine or by any other occupational
or professional licensing board or bureau, solely for providing
written certifications or for otherwise stating that, in the
practitioner's professional opinion, a patient is likely to receive
therapeutic or palliative benefit from the medical use of marihuana
to treat or alleviate the patient's serious or debilitating medical
condition or symptoms associated with the serious or debilitating
medical condition: Provided, That nothing in this article may
prevent a practitioner from being sanctioned for:
_____(1) Issuing a written certification to a patient with whom the
practitioner does not have a bona fide practitioner-patient
relationship, or
_____(2) Failing to properly evaluate a patient's medical condition or otherwise violating the standard of care.
_____(h) A person may not be subject to arrest, prosecution or
denial of any right or privilege, including, but not limited to,
civil penalty or disciplinary action by a court or occupational or
professional licensing board or bureau, for:
_____(1) Selling marihuana paraphernalia to a cardholder upon
presentation of a registry identification card in the recipient's
name that has not expired or to a compassion center agent or
registered safety compliance facility agent upon presentation of an
unexpired copy of the entity's registration certificate;
_____(2) Being in the presence or vicinity of the medical use of
marihuana as allowed under this article; or
_____(3) Assisting a registered qualifying patient with using or
administering marihuana. For purposes of illustration and not
limitation, this includes preparing a vaporizer for a registered
qualifying patient's use or brewing tea for a registered qualifying
patient. It does not include providing marihuana to a patient that
the patient did not already possess.
_____(i) A registered compassion center may not be subject to
prosecution under state or municipal law, search or inspection,
except by the department pursuant to subsection (o) of this
section; seizure; or penalty in any manner, or be denied any right
or privilege, including, but not limited to, civil penalty or
disciplinary action by a court or business licensing board or entity, for acting pursuant to this article and department
regulations to: Sell marihuana seeds to similar entities that are
registered to dispense marihuana for medical use in other
jurisdictions, acquire, possess, cultivate, manufacture, deliver,
transfer, transport, supply, sell or dispense marihuana or related
supplies and educational materials to registered qualifying
patients and visiting qualifying patients who have designated the
compassion center to provide for them, to registered designated
caregivers on behalf of the registered qualifying patients who have
designated the registered compassion center, or to other registered
compassion centers.
_____(j) A registered compassion center agent may not be subject to
prosecution, search or penalty in any manner or be denied any right
or privilege, including, but not limited to, civil penalty or
disciplinary action by a court or business licensing board or
entity, for working for a registered compassion center pursuant to
this article and department regulations to acquire, possess,
cultivate, manufacture, deliver, transfer, transport, supply, sell
or dispense marihuana or related supplies and educational materials
to registered qualifying patients who have designated the
registered compassion center to provide for them, to registered
designated caregivers on behalf of the registered qualifying
patients who have designated the registered compassion center, or
to other registered compassion centers.
_____(k) A registered safety compliance facility and registered
safety compliance facility agents acting on behalf of a registered
safety compliance facility may not be subject to prosecution,
search, except by the department pursuant to subsection (o) of this
section, seizure or penalty in any manner or be denied any right or
privilege, including, but not limited to, civil penalty or
disciplinary action by a court or business licensing board or
entity, solely for acting in accordance with this article and
department regulations to provide the following services:
_____(1) Acquiring or possessing marihuana obtained from registered
cardholders or registered compassion centers;
_____(2) Returning the marihuana to registered cardholders or
registered compassion centers;
_____(3) Transporting marihuana that was produced by registered
cardholders and registered compassion centers to or from those
registered cardholders and registered compassion centers;
_____(4) The production or sale of educational materials related to
medical marihuana;
_____(5) The production, sale or transportation of equipment or
materials other than marihuana to registered compassion centers or
cardholders, including lab equipment and packaging materials, that
are used by registered compassion centers and cardholders;
_____(6) Testing of medical marihuana samples, including for
potency, pesticides, mold and contamination;
_____(7) Providing training to cardholders and prospective
compassion center agents, provided that only cardholders may be
allowed to possess or cultivate marihuana and any possession or
cultivation of marihuana must occur on the location registered with
the department; and
_____(8) Receiving compensation for actions allowed under this
section.
_____(l) Any marihuana, marihuana paraphernalia, licit property or
interest in licit property that is possessed, owned or used in
connection with the medical use of marihuana as allowed under this
article, or acts incidental to such use, may not be seized or
forfeited. This article may not prevent the seizure or forfeiture
of marihuana exceeding the amounts allowed under this article, nor
may it prevent seizure or forfeiture if the basis for the action is
unrelated to the marihuana that is possessed, manufactured,
transferred, or used pursuant to this article.
_____(m) Mere possession of, or application for, a registry
identification card or registration certificate may not constitute
probable cause or reasonable suspicion, nor may it be used to
support the search of the person, property or home of the person
possessing or applying for the registry identification card. The
possession of, or application for, a registry identification card
may not preclude the existence of probable cause if probable cause
exists on other grounds.
_____(n) For the purposes of West Virginia state law, the medical
use of marihuana by a cardholder or registered compassion center
shall be considered lawful as long as it is in accordance with this
article.
_____(o) A law-enforcement officer may not be employed by an agency
which receives state or local government funds may expend any state
or local resources, including the officer's time, to effect any
arrest or seizure of marihuana, or conduct any investigation, on
the sole basis of activity the officer believes to constitute a
violation of the federal Controlled Substances Act if the officer
has reason to believe that such activity is in compliance with
state medical marihuana laws, nor may any such officer expend any
state or local resources, including the officer's time, to provide
any information or logistical support related to such activity to
any federal law-enforcement authority or prosecuting entity.
_____(p) An attorney may not be subject to disciplinary action by
the state bar association or other professional licensing
association for providing legal assistance to prospective or
registered compassion centers, prospective or registered safety
compliance facilities or others related to activity that is no
longer subject to criminal penalties under state law pursuant to
this article.
§16-8A-4. Limitations.
_____(a) This article does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal, or
other penalties for engaging in, the following conduct:
_____(1) Undertaking any task under the influence of marihuana,
when doing so would constitute negligence or professional
malpractice;
_____(2) Possessing marihuana, or otherwise engaging in the medical
use of marihuana:
_____(A) In a school bus;
_____(B) On the grounds of any preschool or primary or secondary
school; or
_____(C) In any correctional facility.
_____(3) Smoking marihuana:
_____(A) On any form of public transportation; or
_____(B) In any public place.
_____(4) Operating, navigating, or being in actual physical control
of any motor vehicle, aircraft or motorboat while under the
influence of marihuana, except that a registered qualifying patient
or visiting qualifying patient may not be considered to be under
the influence of marihuana solely because of the presence of
metabolites or components of marihuana that appear in insufficient
concentration to cause impairment.
_____(5) Using marihuana, if that person does not have a serious or
debilitating medical condition.
§16-8A-5. Discrimination Prohibited.
_____(a) Except as provided in this article, a registered
qualifying patient who uses marihuana for medical purposes shall be
afforded all the same rights under state and local law, including
those guaranteed under the provisions of article eleven, chapter
five of this code relating to human rights, as the individual would
have been afforded if he or she were solely prescribed
pharmaceutical medications, as it pertains to:
_____(1) Any interaction with a person's employer;
_____(2) Drug testing by one's employer; or
_____(3) Drug testing required by any state or local law, agency,
or government official.
_____(b) (1) The rights provided by this section do not apply to
the extent that they conflict with an employer's obligations under
federal law or regulations or to the extent that they would
disqualify an employer from a monetary or licensing-related benefit
under federal law or regulations.
_____(2) An employer is not required to allow the ingestion of
marihuana in any workplace or to allow any employee to work while
under the influence of marihuana. A registered qualifying patient
may not be considered to be under the influence of marihuana solely
because of the presence of metabolites or components of marihuana
that appear in insufficient concentration to cause impairment.
_____(c) A school or landlord may not refuse to enroll or lease to,
or otherwise penalize, a person solely for his or her status as a registered qualifying patient or a registered designated care
giver, unless failing to do so would violate federal law or
regulations or cause the school or landlord to lose a monetary or
licensing-related benefit under federal law or regulations.
_____(d) For the purposes of medical care, including organ
transplants, a registered qualifying patient's authorized use of
marihuana in accordance with this article is the equivalent of the
authorized use of any other medication used at the direction of a
physician, and may not constitute the use of an illicit substance
or otherwise disqualify a qualifying patient from needed medical
care.
_____(e) A person otherwise entitled to custody of or visitation or
parenting time with a minor may not be denied such a right and
there is no presumption of neglect or child endangerment for
conduct allowed under this article unless the person's actions in
relation to marihuana were such that they created an unreasonable
danger to the safety of the minor as established by clear and
convincing evidence.
_____(f) A school, landlord or employer may not be penalized or
denied any benefit under state law for enrolling, leasing to or
employing a cardholder.
§16-8A-6. Addition of Debilitating Medical Conditions.
_____Any citizen may petition the department to add conditions or
treatments to the list of debilitating medical conditions listed in section two(d) of this article. The department shall consider
petitions in the manner required by department rule, including
public notice and hearing. The department shall approve or deny a
petition within one hundred eighty days of its submission. The
approval or denial of any petition is a final decision of the
department subject to judicial review. Jurisdiction and venue are
vested in the circuit court.
§16-8A-7. Acts not required; acts not prohibited.
_____(a) Nothing in this article requires:
_____(1) A government medical assistance program or private insurer
to reimburse a person for costs associated with the medical use of
marihuana, or
_____(2) Any person or establishment in lawful possession of
property to allow a guest, client, customer or other visitor to
smoke marihuana on or in that property.
_____(b) Nothing in this article prohibits an employer from
disciplining an employee for ingesting marihuana in the workplace
or working while under the influence of marihuana.
§16-8A-8. Registration of qualifying patients and designated care
givers.
_____(a) The department shall issue registry identification cards
to qualifying patients who submit the following, in accordance with
the department's rules:
_____(1) A written certification issued by a practitioner within ninety days immediately preceding the date of an application;
_____(2) If the patient is not a visiting qualifying patient,
documentation required by department regulations to reasonably
establish proof of residency in West Virginia;
_____(3) If the patient is a visiting qualifying patient, a copy of
his or her registry identification card or its equivalent that was
issued pursuant to the laws of the jurisdiction of the person's
residence;
_____(4) The application or renewal fee;
_____(5) The name, address, and date of birth of the qualifying
patient, except that if the applicant is homeless no address is
required;
_____(6) The name, address, and telephone number of the qualifying
patient's practitioner;
_____(7) The name, address, and date of birth of the designated
caregiver, if any, chosen by the qualifying patient, except that a
visiting qualifying patient may not have a designated caregiver;
_____(8) The name of the registered compassion center the
qualifying patient designates, if any;
_____(9) The qualifying patient designates a designated caregiver,
a designation as to whether the qualifying patient or designated
caregiver will be allowed under state law to possess and cultivate
marihuana plants for the qualifying patient's medical use;
_____(10) A statement signed by the qualifying patient, pledging not to divert marihuana to anyone who is not allowed to possess
marihuana pursuant to this article; and
_____(11) A signed statement from the designated caregiver, if any,
agreeing to be designated as the patient's designated caregiver and
pledging not to divert marihuana to anyone who is not allowed to
possess marihuana pursuant to this article.
_____(b) The application for qualifying patients' registry
identification cards shall ask whether the patient would like the
department to notify him or her of any clinical studies needing
human subjects for research on the medical use of marihuana. The
department shall notify interested patients if it is notified of
studies that will be conducted in the United States.
§16-8A-9. Issuance of registry identification cards.
_____(a) Except as provided in subsection (b) of this section, the
department shall:
_____(1) Verify the information contained in an application or
renewal submitted pursuant to this article, and approve or deny an
application or renewal, within fifteen days of receiving a
completed application or renewal application;
_____(2) Issue registry identification cards to a qualifying
patient and his or her designated caregiver, if any, within five
days of approving the application or renewal. A designated care
giver must have a registry identification card for each of his
qualifying patients; and
_____(3) Enter the registry identification number of the registered
compassion center the patient designates into the verification
system.
_____(b) The department may not issue a registry identification
card to a qualifying patient who is younger than eighteen years of
age unless:
_____(1) The qualifying patient's practitioner has explained the
potential risks and benefits of the medical use of marihuana to the
custodial parent or legal guardian with responsibility for health
care decisions for the qualifying patient; and
_____(2) The custodial parent or legal guardian with responsibility
for health care decisions for the qualifying patient consents in
writing to:
_____(A) Allow the qualifying patient's medical use of marihuana;
_____(B) Serve as the qualifying patient's designated caregiver;
and
_____(C) Control the acquisition of the marihuana, the dosage, and
the frequency of the medical use of marihuana by the qualifying
patient.
§16-8A-10. Denial of Registry Identification Cards.
_____(a) The department may deny an application or renewal of a
qualifying patient's registry identification card only if the
applicant:
_____(1) Did not provide the required information or materials;
_____(2) Previously had a registry identification card revoked; or
_____(3) Provided false or falsified information.
_____(b) The department may deny an application or renewal for a
designated caregiver chosen by a qualifying patient whose registry
identification card was granted only if:
_____(1) The designated caregiver does not meet the requirements of
section two(f) of this article;
_____(2) The applicant did not provide the information required;
_____(3) The designated caregiver previously had a registry
identification card revoked; or
_____(4) The applicant or the designated caregiver provides false
or falsified information.
_____(c) The department may conduct a background check of the
prospective designated caregiver in order to carry out this
provision.
_____(d) The department shall notify the qualifying patient who has
designated someone to serve as his or her designated caregiver if
a registry identification card will not be issued to the designated
caregiver.
_____(e) Denial of an application or renewal is considered a final
department action, subject to judicial review. Jurisdiction and
venue for judicial review are vested in the circuit court.
§16-8A-11. Registry identification cards.
_____(a) Registry identification cards shall contain all of the following:
_____(1) The name of the cardholder;
_____(2) A designation of whether the cardholder is a designated
caregiver or qualifying patient;
_____(3) The date of issuance and expiration date of the registry
identification card;
_____(4) A random 10-digit alphanumeric identification number,
containing at least four numbers and at least four letters, that is
unique to the cardholder;
_____(5) If the cardholder is a designated caregiver, the random
10-digit alphanumeric identification number of the qualifying
patient the designated caregiver is receiving the registry
identification card to assist;
_____(6) A clear designation as to whether the cardholder will be
allowed under state law to possess the marihuana plants for the
qualifying patient's medical use, which shall be determined based
solely on the qualifying patient's preference;
_____(7) A photograph of the cardholder, if the department's
regulations require one; and
_____(8) The phone number or Web address for the verification
system.
_____(b) (1) Except as provided in this subsection, the expiration
date shall be one year after the date of issuance.
_____(2) If the practitioner stated in the written certification that the qualifying patient would benefit from marihuana until a
specified earlier date, then the registry identification card shall
expire on that date.
_____(c) The department may, at its discretion, electronically
store in the card, all of the information listed in subsection (a),
along with the address and date of birth of the cardholder, to
allow it to be read by law-enforcement agents.
§16-8A-12. Notifications to department and responses; Civil
Penalty.
_____(a) The following notifications and department responses are
required:
_____(1) A registered qualifying patient shall notify the
department of any change in his or her name or address, or if the
registered qualifying patient ceases to have his or her
debilitating medical condition, within ten days of the change.
_____(2) A registered designated caregiver shall notify the
department of any change in his or her name or address, or if the
designated caregiver becomes aware the qualifying patient passed
away, within ten days of the change.
_____(3) Before a registered qualifying patient changes his or her
designated caregiver, the qualifying patient must notify the
department.
_____(4) When a registered qualifying patient changes his or her
preference as to who may cultivate marihuana for the qualifying patient, the qualifying patient must notify the department.
_____(5) If a cardholder loses his or her registry identification
card, he or she shall notify the department within ten days of
becoming aware the card has been lost.
_____(b) When a cardholder notifies the department of items listed
in subsection (a), but remains eligible under this article, the
department shall issue the cardholder a new registry identification
card with a new random 10-digit alphanumeric identification number
within ten days of receiving the updated information and a $20 fee.
If the person notifying the department is a registered qualifying
patient, the department shall also issue his or her registered
designated caregiver, if any, a new registry identification card
within ten days of receiving the updated information.
_____(c) If a registered qualifying patient ceases to be a
registered qualifying patient or changes his or her registered
designated caregiver, the department shall promptly notify the
designated caregiver. The registered designated caregiver's
protections under this article as to that qualifying patient shall
expire fifteen days after notification by the department.
_____(d) A cardholder who fails to make a notification to the
department that is required by this section is subject to a civil
infraction, punishable by a penalty of no more than $150.
_____(e) A registered qualifying patient shall notify the
department before changing his or her designated registered compassion center and pay a $20 fee. The department shall, within
five business days of receiving the notification, update the
registered qualifying patient's entry in the identification
registry system to reflect the change in designation and notify the
patient that the change has been processed.
_____(f) If the registered qualifying patient's certifying
practitioner notifies the department in writing that either the
registered qualifying patient has ceased to suffer from a
debilitating medical condition or that the practitioner no longer
believes the patient would receive therapeutic or palliative
benefit from the medical use of marihuana, the card shall become
null and void. However, the registered qualifying patient shall
have fifteen days to dispose of or give away his or her marihuana.
§16-8A-13. Affirmative defense and dismissal for medical
marihuana.
_____(a) Except as provided in section four of this article and
this section, an individual may assert a medical purpose for using
marihuana as a defense to any prosecution of an offense involving
marihuana intended for the patient's medical use, and this defense
shall be presumed valid and the prosecution shall be dismissed
where the evidence shows that:
_____(1) A practitioner states that, in the practitioner's
professional opinion, after having completed a full assessment of
the individual's medical history and current medical condition made in the course of a bona fide practitioner-patient relationship, the
patient is likely to receive therapeutic or palliative benefit from
marihuana;
_____(2) To treat or alleviate the individual's serious or
debilitating medical condition or symptoms associated with the
individual's serious or debilitating medical condition; or
_____(b) To treat any other illness for which marihuana provides
relief that, in the practitioner's professional opinion the
potential benefits of the medical use of marihuana would likely
outweigh the health risks for the qualifying patient and would
likely be superior to treatment without the medical use of
marihuana; and
_____(1) The individual and the individual's designated caregiver,
if any, were collectively in possession of a quantity of marihuana
that was not more than was reasonably necessary to ensure the
uninterrupted availability of marihuana for the purpose of treating
or alleviating the individual's serious or debilitating medical
condition or symptoms associated with the individual's serious or
debilitating medical condition or other illness for which marihuana
was providing relief; and
_____(2) The individual was engaged in the acquisition, possession,
cultivation, manufacture, use or transportation of marihuana,
paraphernalia, or both marihuana and paraphernalia, relating to the
administration of marihuana to treat or alleviate the individual's serious or debilitating medical condition or symptoms associated
with the individual's serious or debilitating medical condition or
other illness for which marihuana was providing relief; and
_____(3) Any cultivation of marihuana occurred in an enclosed,
locked area that only the person asserting the defense could
access.
_____(c) The defense and motion to dismiss may not prevail if
either of the following are proven:
_____(1) The individual had a registry identification card revoked
for misconduct; or
_____(2) The purposes for the possession or cultivation of
marihuana were not solely for palliative or therapeutic use by the
individual with a serious or debilitating medical condition who
raised the defense.
_____(d) An individual is not required to possess a registry
identification card to raise the affirmative defense set forth in
this section.
_____(e) If an individual demonstrates the individual's medical
purpose for using marihuana pursuant to this section, except as
provided in section four of this article, the individual may not be
subject to the following for the individual's use of marihuana for
medical purposes:
_____(1) Disciplinary action by an occupational or professional
licensing board or bureau; or
_____(2) Forfeiture of any interest in or right to nonmarihuana,
licit property.
§16-8A-14. Registration of compassion centers.
_____(a) Compassion centers may only operate if they have been
issued a valid registration certificate from the department. When
applying for a compassion center registration certificate, the
applicant shall submit the following in accordance with department
regulations:
_____(1) A nonrefundable application fee in an amount determined by
the department's regulations, not to exceed $4,000.
_____(2) The proposed legal name of the compassion center.
_____(3) The proposed physical address of the compassion center and
the proposed physical address of any additional locations, if any,
where marihuana will be cultivated, harvested, packaged, labeled,
or otherwise prepared for distribution by the compassion center.
_____(4) The name, address, and date of birth of each principal
officer and board member of the compassion center, provided that
all such individuals shall be at least twenty-one years of age.
_____(5) Any instances in which a business or not-for-profit that
any of the prospective board members managed or served on the board
of was convicted, fined, censured or had a registration or license
suspended or revoked in any administrative or judicial proceeding.
_____(6) Any information required by the department to evaluate the
applicant pursuant to the competitive bidding process described in subsection (b) of this section.
_____(b) The department shall evaluate applications for compassion
center registration certificates using an impartial and numerically
scored competitive bidding process developed by the department in
accordance with this article. The registration considerations shall
consist of the following criteria:
_____(1) The suitability of the proposed location or locations,
including compliance with any local zoning laws and the geographic
convenience to patients from throughout the State of West Virginia
to compassion centers if the applicant were approved.
_____(2) The principal officer and board members' character and
relevant experience, including any training or professional
licensing related to medicine, pharmaceuticals, natural treatments,
botany or marihuana cultivation and preparation and their
experience running businesses or not-for-profits.
_____(3) The proposed compassion center's plan for operations and
services, including its staffing and training plans, whether it has
sufficient capital to operate and its ability to provide an
adequate supply of medical marihuana to the registered patients in
the state.
_____(4) The sufficiency of the applicant's plans for record
keeping.
_____(5) The sufficiency of the applicant's plans for safety,
security, and the prevention of diversion, including proposed locations and security devices employed.
_____(6) The applicant's plan for making medical marihuana
available on an affordable basis to registered qualifying patients
enrolled in Medicaid or receiving Supplemental Security Income or
Social Security Disability Insurance.
_____(7) The applicant's plan for safe and accurate packaging and
labeling of medical marihuana, including the applicant's plan for
ensuring that all medical marihuana is free of contaminants.
_____(c) No later than one year after the effective date of this
article, provided that at least five applications have been
submitted, the department shall issue compassion center
registration certificates to the five highest-scoring applicants,
except that the department may divide the state into geographical
areas and grant a registration to the highest scoring applicant in
each geographical area.
_____(d) No later than two years after the effective date of this
article, the department shall issue registration certifications to
at least one compassion center registration certificate for each
two hundred thousand residents of the state of the highest scoring
applicants not already awarded a registration certificate:
Provided, That a sufficient number of additional applications have
been submitted. The need to ensure an adequate geographic
distribution may supersede the requirement that the approved
applicants be granted registration certificates based solely on which applicants receive the highest scores. If the department
determines, after reviewing the report issued pursuant to section
twenty-two of this article, that additional compassion centers are
needed to meet the needs of registered qualifying patients
throughout the state, the department shall issue registration
certificates to the corresponding number of applicants who score
the highest.
_____(e) (1) At any time after two years after the effective date
of this article that the number of outstanding and valid registered
compassion center certificates is lower than the number of
registration certificates the department is required to issue
pursuant to subsections (c) and (d) of this section, the department
shall accept applications for compassion centers and issue
registration certificates to the corresponding number of additional
applicants who score the highest or that score the highest in given
geographic areas.
_____(2) Notwithstanding the provisions of subsections (c), (d),
and (e) of this section, an application for a compassion center
registration certificate must be denied if any of the following
conditions are met:
_____(A) The applicant failed to submit the materials required by
this section, including if the applicant's plans do not satisfy the
security, oversight or record keeping regulations issued by the
department;
_____(B) The applicant would not be in compliance with local zoning
regulations issued in accordance with the provisions of section
seventeen of this article;
_____(C) The applicant does not meet the requirements of section
twenty;
_____(D) One or more of the prospective principal officers or board
members has been convicted of a disqualifying felony offense;
_____(E) One or more of the prospective principal officers or board
members has served as a principal officer or board member for a
registered compassion center that has had its registration
certificate revoked; and
_____(F) One or more of the principal officers or board members is
younger than twenty-one years of age.
_____(f) After a compassion center is approved, but before it
begins operations, it shall submit a registration fee to the
department in the amount determined by the department's regulations
and, if a physical address had not been finalized when it applied,
it shall submit a complete listing of all its physical addresses.
_____(g) The department shall issue each compassion center one copy
of its registration certificate for each compassion center
location. Registration certificates must include the compassion
center's identification number. The department shall also provide
each registered compassion center with the contact information for
the verification system.
_____(h) Sales tax and special fund. - State sales tax at the rate
imposed under article fifteen, chapter eleven of this code shall be
imposed on all sales of marihuana in this state. However, all
revenue collected pursuant to this sales tax is to be deposited
into the "Drug and Abuse Prevention Fund" which is hereby created.
This fund is to be held by the State Treasurer. The Commissioner of
the Bureau for Public Health may distribute proceeds from this fund
for drug prevention and substance abuse programs in schools
including, but not limited to, after school programs, sports and
extracurricular educational opportunities; to offer community
grants for substance abuse treatment facilities; and to offer
grants for community improvement projects including, but not
limited to, playgrounds, public parks, and local farmer markets.
§16-8A-15. Registration and Certification of Safety Compliance
Facilities.
_____(a) Safety compliance facilities may only operate if they have
been issued a valid registration certificate from the department.
When applying for a safety compliance facility registration
certificate, the applicant shall submit the following in accordance
with department rules:
_____(1) A nonrefundable application fee in an amount determined by
the department's rules, not to exceed $4,000;
_____(2) The proposed legal name of the safety compliance facility;
_____(3) The proposed physical address of the safety compliance facility;
_____(4) The name, address, and date of birth of each principal
officer and board member of the safety compliance facility,
provided that all such individuals shall be at least twenty-one
years of age;
_____(5) Any instances in which a business or not-for-profit that
any of the prospective board members managed or served on the board
of was convicted, fined, censured or had a registration or license
suspended or revoked in any administrative or judicial proceeding;
and
_____(6) Any information required by the department to evaluate the
applicant pursuant to the competitive bidding process described in
subsection (b) of this section.
_____(b) The department shall evaluate applications for safety
compliance facility registration certificates using an impartial
and numerically scored competitive bidding process developed by the
department in accordance with this article. The registration
considerations shall consist of the following criteria:
_____(1) The proposed principal officers' and board members'
relevant experience, including any training or professional
licensing related to analytical testing, medicine, pharmaceuticals,
natural treatments, botany or marihuana cultivation, preparation
and testing and their experience running businesses or
not-for-profits;
_____(2) The suitability of the proposed location, including
compliance with any local zoning laws and the geographic
convenience to cardholders and registered compassion centers from
throughout the State of West Virginia to registered safety
compliance facilities if the applicant were approved;
_____(3) The sufficiency of the applicant's plans for safety,
security, and the prevention of diversion, including proposed
locations and security devices employed; and
_____(4) The proposed safety compliance facility's plan for
operations and services, including its staffing and training plans,
and whether it has sufficient capital to operate.
_____(c) The department shall issue at least one safety compliance
facility registration certificate to the highest scoring applicant
within one year of the effective date of this article.
_____(d) (1) The department may issue additional safety compliance
facility registration certificates to the highest scoring applicant
or applicants or to the highest applicant or applicants in a given
geographic area. If the department determines, after reviewing the
report issued pursuant to section twenty-two of this article, that
additional safety compliance facilities are needed to meet the
needs of cardholders and registered compassion centers throughout
the state, the department shall issue registration certificates to
the corresponding number of applicants who score the highest
overall or in a geographic area.
_____(2) Notwithstanding the provisions of subsections (c) and (d)
of this section, an application for a safety compliance facility
registration certificate must be denied if any of the following
conditions are met:
_____(A) The applicant failed to submit the materials required by
this section, including if the plans do not satisfy the security,
oversight, or record keeping regulations issued by the department;
_____(B) The applicant would not be in compliance with local zoning
regulations issued in accordance with the provisions of section
seventeen of this article;
_____(C) The applicant does not meet the requirements of section
nineteen of this article;
_____(D) One or more of the prospective principal officers or board
members has been convicted of a disqualifying felony offense;
_____(E) One or more of the prospective principal officers or board
members has served as a principal officer or board member for a
registered safety compliance facility or registered compassion
center that has had its registration certificate revoked; and
_____(F) One or more of the principal officers or board members is
younger than twenty-one years of age.
_____(e) After a safety compliance facility is approved, but before
it begins operations, it shall submit a registration fee paid to
the department in the amount determined by department regulation
and, if a physical address had not been finalized when it applied, its physical address.
_____(f) The department shall issue each safety compliance facility
a registration certificate, which must include an identification
number for the safety compliance facility. The department shall
also provide the registered safety compliance facility with the
contact information for the verification system.
§16-8A-16. Compassion Center and Safety Compliance Facilities
Suspension and Revocation.
_____(a) The department may on its own motion or on complaint,
after investigation and opportunity for a public hearing at which
the compassion center or safety compliance facility has been
afforded an opportunity to be heard, suspend or revoke a
registration certificate for multiple or serious violations by the
registrant or any of its agents of this article or any rules
promulgated pursuant to it.
_____(b) The department shall provide notice of suspension,
revocation, fine, or other sanction, as well as the required notice
of the hearing, by mailing the same in writing to the registration
at the address on the registration certificate. A suspension may
not be for a longer period than six months.
_____(c) A registered compassion center may continue to cultivate
and possess marihuana plants during a suspension, but it may not
dispense, transfer, or sell marihuana.
§16-8A-17. Local Ordinances.
_____Local governments may not be prohibited from enacting
ordinances or regulations not in conflict with this article or with
department rule regulating the time, place and manner of registered
compassion center operations and registered safety compliance
facilities: Provided, That a local government may not prohibit
registered compassion center operation altogether, either expressly
or though the enactment of ordinances, rules or regulations which
make registered compassion center and registered safety compliance
facility operation unreasonably impracticable in the jurisdiction.
§16-8A-18. Compassion Center and Safety Compliance Facility
Agents.
_____(a) Registered compassion centers and registered safety
compliance facilities shall conduct a background check into the
criminal history of every person seeking to become a principal
officer, board member, agent, volunteer or employee before the
person begins working at the registered compassion centers or
registered safety compliance facility. A registered compassion
center may not employ any person who:
_____(1) Was convicted of a disqualifying felony offense; or
_____(2) Is under twenty-one years of age.
_____(b) A registered compassion center or safety compliance
facility agent must have documentation when transporting marihuana
on behalf of the registered safety compliance facility or
registered compassion center that specifies the amount of marihuana being transported, the date the marihuana is being transported, the
registry ID certificate number of the registered compassion center
or registered safety compliance facility, and a contact number to
verify that the marihuana is being transported on behalf of the
registered compassion center or registered safety compliance
facility.
§16-8A-19. Requirements, Prohibitions, Penalties.
_____(a) A registered compassion center shall be operated on a
not-for-profit basis. The by-laws of a registered compassion center
shall contain such provisions relative to the disposition of
revenues to establish and maintain its not-for-profit character. A
registered compassion center need not be recognized as tax-exempt
by the Internal Revenue Service and is not required to incorporate
pursuant to the provisions of chapter thirty-one-e of this code.
_____(b) The operating documents of a registered compassion center
shall include procedures for the oversight of the registered
compassion center and procedures to ensure accurate record keeping.
_____(c) A registered compassion center and a registered safety
compliance facility shall implement appropriate security measures
to deter and prevent the theft of marihuana and unauthorized
entrance into areas containing marihuana.
_____(d) A registered compassion center and a registered safety
compliance facility may not be located within one thousand feet of
the property line of a preexisting public or private school.
_____(e) A registered compassion center is prohibited from
acquiring, possessing, cultivating, manufacturing, delivering,
transferring, transporting, supplying or dispensing marihuana for
the purposes of distributing marihuana to any person except
registered qualifying patients directly or through their designated
caregivers.
_____(f) All cultivation of marihuana for registered compassion
centers must take place in an enclosed, locked location at the
physical address or addresses provided to the department during the
registration process, which can only be accessed by compassion
center agents working on behalf of the registered compassion
center.
_____(g) A registered compassion center may not acquire usable
marihuana or mature marihuana plants from any person other than
another registered compassion center, a registered qualifying
patient, or a registered designated caregiver. A registered
compassion center is only allowed to acquire usable marihuana or
mature marihuana plants from a registered qualifying patient or a
registered designated caregiver if the registered qualifying
patient or registered designated caregiver receives no compensation
for the marihuana.
_____(h) Before marihuana may be dispensed to a designated care
giver or a registered qualifying patient, a registered compassion
center agent must make a diligent effort to verify each of the following:
_____(1) That the registry identification card presented to the
registered compassion center is valid, including by checking the
verification system if it is operational;
_____(2) That the person presenting the card is the person
identified on the registry identification card presented to the
registered compassion center agent, including by examining
government-issued photo identification; and
_____(3) That the registered compassion center the compassion
center agent is working for is the designated compassion center for
the registered qualifying patient who is obtaining the marihuana
directly or via his or her designated caregiver.
_____(i) A registered compassion center may not dispense more than
three ounces of marihuana to a registered qualifying patient,
directly or via a designated care giver, in any fourteen-day
period. Registered compassion centers shall ensure compliance with
this limitation by maintaining internal, confidential records that
include records specifying how much marihuana is being dispensed to
the registered qualifying patient and whether it was dispensed
directly to the registered qualifying patient or to the designated
caregiver. Each entry must include the date and time the marihuana
was dispensed.
_____(j) A registered compassion center or registered compassion
center agent may only dispense marihuana to a visiting qualifying patient if he or she possesses a valid West Virginia registry
identification card and if the procedures in sections (h) and (i)
are followed.
_____(k) A person may not advertise medical marihuana sales in
printed materials, on radio or television, or by paid in-person
solicitation of customers. This may not prevent appropriate signs
on the property of the registered compassion center, listings in
business directories including phone books, listings in
marihuana-related or medical publications or the sponsorship of
health or not-for-profit charity or advocacy events.
_____(l) A registered compassion center may not share office space
with nor refer patients to a practitioner.
_____(m) A practitioner may not refer patients to a registered
compassion center or registered designated caregiver, advertise in
a registered compassion center, or, if the practitioner issues
written certifications, hold any financial interest in a registered
compassion center.
_____(n) Any person who has been convicted of a disqualifying
felony offense may not be a registered compassion center agent.
_____(o) Registered compassion centers and registered safety
compliance facilities must display their registration certificates
on the premises at all times.
_____(p) The department may issue a civil fine of up to $3,000 for
violations of this section.
_____(q) The suspension or revocation of a certificate is a final
department action, subject to judicial review. Jurisdiction and
venue for judicial review are vested in the circuit court.
_____(r) Any cardholder who sells marihuana to a person who is not
allowed to possess marihuana for medical purposes under this
article shall have his or her registry identification card revoked
and shall be subject to other penalties for the unauthorized sale
of marihuana.
_____(s) The department may revoke the registry identification card
of any cardholder who knowingly commits multiple or serious
violations of this article.
_____(t) Registered compassion centers are subject to reasonable
inspection by department regulations. The department shall give at
reasonable notice of an inspection under this paragraph.
§16-8A-20. Confidentiality.
_____(a) The following information received and records kept by
department regulations for purposes of administering this article
are confidential and exempt from the West Virginia Freedom of
Information Act, and not subject to disclosure to any individual or
public or private entity, except as necessary for authorized
employees of the department to perform official duties pursuant to
this article:
_____(1) Applications and renewals, their contents, and supporting
information submitted by qualifying patients and designated care givers, including information regarding their designated care
givers and practitioners.
_____(2) Applications and renewals, their contents, and supporting
information submitted by or on behalf of compassion centers and
safety compliance facilities in compliance with this article,
including their physical addressees.
_____(3) The individual names and other information identifying
persons to whom the department has issued registry identification
cards.
_____(4) Any dispensing information required to be kept under the
provisions of section nineteen of this article or department rule
shall identify cardholders and registered compassion centers by
their registry identification numbers and may not contain names or
other personal identifying information.
_____(5) Any department hard drives or other data-recording media
that are no longer in use and that contain cardholder information
must be destroyed.
_____(6) Data subject to this section may not be combined or linked
in any manner with any other list or database and it may not be
used for any purpose not provided in this article.
_____(b) Nothing in this section precludes the following:
_____(1) Department employees may notify state or local law
enforcement about falsified or fraudulent information submitted to
the department or of other apparently criminal violations of this article if the employee who suspects that falsified or fraudulent
information has been submitted conferred with his or her supervisor
and both agree that circumstances exist that warrant reporting.
_____(2) Department employees may notify the West Virginia Board
of Medicine if the department has reasonable suspicion to believe
a practitioner did not have a bona fide practitioner-patient
relationship with a patient for whom he or she signed a written
certification, if the department has reasonable suspicion to
believe the practitioner violated the standard of care, or for
other suspected violations of this act by a practitioner.
_____(3) Compassion center agents may notify the department of a
suspected violation or attempted violation of this article or the
regulations issued pursuant to it.
_____(4) The department may verify registry identification cards
pursuant to section twenty-one of this article.
_____(5) The submission of the report to the Legislature required
by the provisions of section twenty-two of this article.
_____(c) Any person, including an employee or official of the
department or another state agency or local government, who
breaches the confidentiality of information obtained pursuant to
this article is guilty of a misdemeanor and, upon conviction
thereof, shall be fined $1,000 or confined in jail up to one
hundred eighty days, or both fined and confined.
§16-8A-21. Registry Identification and Registration Certificate Verification.
_____(a) The department shall maintain a confidential list of the
persons to whom the department has issued registry identification
cards and their addresses, phone numbers and registry
identification numbers. This confidential list may not be combined
or linked in any manner with any other list or database, nor may it
be used for any purpose not provided in this article.
_____(b) Within one hundred twenty days of the effective date of
this article, the department shall establish a verification system.
The verification system must allow law-enforcement personnel,
compassion center agents, and safety compliance facility agents to
enter a registry identification number to determine whether or not
the number corresponds with a current, valid registry
identification card. The system shall only disclose whether the
identification card is valid; whether the cardholder is a
registered qualifying patient or a registered designated care
giver; whether the cardholder is permitted to cultivate under this
act; and the registry identification number of the registered
compassion center designated to serve the registered qualifying
patient who holds the card or the registry identification number of
the patient who is assisted by the registered designated caregiver
who holds the card.
_____(c) The department shall, at a cardholder's request, confirm
his or her status as a registered qualifying patient or registered designated caregiver to a third party, such as a landlord,
employer, school, medical professional or court.
_____(d) The department shall disclose the fact that a registry
identification card was revoked to a prosecutor or court personnel
in any case where the prosecutor or court personnel inquires about
a specific person who is seeking to assert the protections of the
provisions of section thirteen of this article. The prosecutor or
court personnel must provide the department with the person's name
and date of birth.
§16-8A-22. Annual Reports.
_____(a)(1) The Legislature shall appoint a nine-member oversight
committee comprised of: One member of the House of Delegates; one
representative of the department; one member of the Senate; one
physician with experience in medical marihuana issues; one nurse;
one board member or principal officer of a registered safety
compliance facility; one individual with experience in policy
development or implementation in the field of medical marihuana;
and three registered patients.
_____(2) The oversight committee shall meet at least two times a
year for the purpose of evaluating and making recommendations to
the Legislature and the Department of Health and Human Resources
regarding:
_____(A) The ability of qualifying patients in all areas of the
state to obtain timely access to high-quality medical marihuana.
_____(B) The effectiveness of the registered compassion centers,
individually and together, in serving the needs of qualifying
patients, including the provision of educational and support
services, the reasonableness of their fees, whether they are
generating any complaints or security problems, and the sufficiency
of the number operating to serve the registered qualifying patients
of West Virginia.
_____(C) The effectiveness of the registered safety compliance
facility or facilities, including whether a sufficient number are
operating.
_____(D) The sufficiency of the regulatory and security safeguards
contained in this article and adopted by the department to ensure
that access to and use of marihuana cultivated is provided only to
cardholders.
_____(E) Any recommended additions or revisions to the department
regulations or this article, including relating to security, safe
handling, labeling and nomenclature.
_____(F) Any research studies regarding health effects of medical
marihuana for patients.
_____(b) The department shall submit to the Legislature an annual
report that does not disclose any identifying information about
cardholders, registered compassion centers, or practitioners, but
does contain, at a minimum, all of the following information:
_____(1) The number of applications and renewals filed for registry identification cards;
_____(2) The number of registered qualifying patients who are
residents of West Virginia at the time of the report;
_____(3) The number of registry identification cards that were
issued to visiting qualifying patients at the time of the report;
_____(4) The nature of the debilitating medical conditions of the
qualifying patients;
_____(5) The number of registry identification cards revoked for
misconduct;
_____(6) The number of practitioners providing written
certifications for qualifying patients; and
_____(7) The number of registered compassion centers.
§16-8A-23. Department to issue rules.
_____(a) Not later than one hundred twenty days after the effective
date of this article, the department shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code, which rules shall
include the:
_____(1) Governing the manner in which the department shall
consider petitions from the public to add debilitating medical
conditions or treatments to the list of debilitating medical
conditions set forth in section two(d) of this article, including
public notice of and an opportunity to comment in public hearings
on the petitions;
_____(2) Establishing the form and content of registration and
renewal applications submitted under this article;
_____(3) Governing the manner in which it shall consider
applications for and renewals of registry identification cards,
which may include creating a standardized written certification
form; and
_____(4) Governing the following matters related to registered
compassion centers, with the goal of protecting against diversion
and theft, without imposing an undue burden on the registered
compassion centers or compromising the confidentiality of
cardholders:
_____(A) Oversight requirements for registered compassion centers;
_____(B) Record keeping requirements for registered compassion
centers;
_____(C) Security requirements for registered compassion centers,
which shall include, at a minimum, lighting, video security, alarm
requirements, on-site parking, and measures to prevent loitering;
_____(D) Electrical safety requirements;
_____(E) The competitive scoring process addressed in section
fourteen of this article;
_____(F) Procedures for suspending or terminating the registration
certificates or registry identification cards of cardholders,
registered compassion centers, and registered safety compliance
facilities that commit multiple or serious violations of the provisions of this article or the regulations promulgated pursuant
to this section; and
_____(G) Labeling requirements for marihuana and marihuana products
sold by compassion centers.
_____(5) Application and renewal fees for registry identification
cards, and application and registration fees for compassion center
and safety compliance facility certificates, according to the
following:
_____(A) The total fees collected must generate revenues sufficient
to offset all expenses of implementing and administering this
article, except that fee revenue may be offset or supplemented by
private donations;
_____(B) The department may establish a sliding scale of patient
application and renewal fees based upon a qualifying patient's
household income; and
_____(C) The department may accept donations from private sources
to reduce application and renewal fees.
§16-8A-24. Enforcement of this article.
_____(a) If the department fails to promulgate rules to implement
this article within the times provided in this article, any citizen
may commence an action in circuit court to compel the department to
perform the actions mandated pursuant to the provisions of this
article.
_____(b) If the department fails to issue a valid registry identification card in response to a valid application or renewal
submitted pursuant to this article within twenty days of its
submission, the registry identification card shall be considered
granted, and a copy of the registry identification application or
renewal and proof of receipt of the mailing shall be deemed a valid
registry identification card.
_____(c) If at any time after the one hundred forty days following
the effective date of this article the department has not
established a process for accepting and approving or denying
applications, a notarized statement by a qualifying patient
containing the information required in an application pursuant to
section eight of this article, together with a written
certification issued by a practitioner within ninety days
immediately preceding the notarized statement, shall be considered
a valid registry identification card for all purposes under this
article.
NOTE: The purpose of this bill is to
create the "Compassionate
Use Act for Medical Cannabis. It provides protections for the
medical use of cannabis; defines debilitating medical conditions
for which medical cannabis may be used; and authorizes the
addition of debilitating medical conditions. The bill sets out
limitations of this article. It prohibits discrimination against
persons entitled to the protection of this article. The bill
requires the registration of qualifying patients and designated
caregivers and requires issuance of registry identification cards.
The bill affords an affirmative defense and dismissal of
proceedings for medical marihuana. It provides a misdemeanor
offense and criminal penalties for disclosing certain information.
And, the bill otherwise provides for enforcement of the provisions of this article.
This article is new; therefore it has been completely
underscored.
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