PRINTER'S NO.  1714

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

1393

Session of

2009

  

  

INTRODUCED BY COHEN, MUNDY, SABATINA, VITALI, McGEEHAN, BROWN AND M. O'BRIEN, APRIL 30, 2009

  

  

REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES, APRIL 30, 2009  

  

  

  

AN ACT

  

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Providing for the medical use of marijuana; and repealing

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provisions of law that prohibit and penalize marijuana use.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Short title.

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This act shall be known and may be cited as the Compassionate

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Use Medical Marijuana Act.

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Section 2.  Legislative intent.

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The General Assembly finds and declares as follows:

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(1)  Modern medical research has discovered a beneficial

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use for marijuana in treating or alleviating the pain or

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other symptoms associated with certain debilitating medical

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conditions, as found by the National Academy of Sciences'

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Institute of Medicine in March 1999.

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(2)  According to the United States Sentencing Commission

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and the Federal Bureau of Investigation, 99 out of every 100

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marijuana arrests in this nation are made under the laws of

 


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states, rather than under Federal law. Consequently, changing

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the law of this Commonwealth on this subject will have the

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practical effect of protecting from arrest seriously ill

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people who have a medical need to use marijuana.

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(3)  Although Federal law currently prohibits the use of

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marijuana, the laws of Alaska, California, Colorado, Hawaii,

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Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode

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Island, Vermont and Washington permit the use of marijuana

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for medical purposes, and in Arizona doctors are permitted to

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prescribe marijuana. Pennsylvania joins this effort for the

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health and welfare of its citizens.

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Section 3.  Definitions.

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The following words and phrases when used in this act shall

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have the meanings given to them in this section unless the

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context clearly indicates otherwise:

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"Bona fide physician-patient relationship."  A physician who

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has completed a full assessment of the patient's medical history

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and current medical condition, including a personal physical

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examination.

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"Compassion center."  A facility where usable marijuana may

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be dispensed for medical use.

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"Controlled Substance, Drug, Device and Cosmetic Act."  The

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act of April 14, 1972 (P.L.233, No.64), known as The Controlled

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Substance, Drug, Device and Cosmetic Act.

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"Debilitating medical condition."  This term includes any of

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the following:

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(1)  cancer, glaucoma, positive status for human

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immunodeficiency virus, acquired immune deficiency syndrome

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or the treatment of these conditions;

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(2)  a chronic or debilitating disease or medical

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condition or its treatment that produces one or more of the

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following: cachexia or wasting syndrome; severe or chronic

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pain; severe nausea; seizures, including, but not limited to,

4

those characteristic of epilepsy; severe and persistent

5

muscle spasms, including, but not limited to, those

6

characteristic of multiple sclerosis or Crohn's disease; or

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(3)  any other weakening medical condition or its

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treatment that is recognized by licensed medical authorities

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as being treatable with marijuana in a manner that is

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superior to treatment without marijuana.

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"Department."  The Department of Health of the Commonwealth.

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"Marijuana."  As the term is defined using the spelling

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"marihuana" under the act of April 14, 1972 (P.L.233, No.64),

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known as The Controlled Substance, Drug, Device and Cosmetic

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Act.

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"Medical use."  The acquisition, possession, cultivation,

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manufacture, use, delivery, transfer or transportation of

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marijuana or paraphernalia relating to a qualifying patient's

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consumption of marijuana to alleviate the symptoms or effects of

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the patient's debilitating medical condition.

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"Physician."  A person licensed to practice medicine and

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surgery under the laws of this Commonwealth.

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"Primary caregiver" or "caregiver."  A person who is at least

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18 years of age, who has never been convicted of a felony drug

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offense, has agreed to assist with a qualifying patient's

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medical use of marijuana and has been designated as primary

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caregiver on the qualifying patient's application or renewal for

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a registry identification card or in other written notification

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to the Department of Health. A primary caregiver shall only have

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one qualifying patient at any one time. A primary caregiver

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shall not include the qualifying patient's physician.

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"Qualifying patient" or "patient."  A person who has been

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diagnosed by a physician as having a debilitating medical

4

condition.

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"Registry identification card."  A document issued by the

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Department of Health that identifies a person as a qualifying

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patient or primary caregiver. The term shall include a registry

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identification card or its equivalent issued by another state

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government to permit the medical use of marijuana by a

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qualifying patient or to permit a person to assist with a

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qualifying patient's medical use of marijuana.

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"Secretary."  The Secretary of Health of the Commonwealth.

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"Usable marijuana."  The dried leaves and flowers of

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marijuana, and any mixture or preparation thereof, and does not

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include the seeds, stalks and roots of the plant.

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"Written certification."  The qualifying patient's medical

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records, or a statement signed by a physician licensed in

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accordance with the laws of this Commonwealth with whom the

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patient has a bona fide physician-patient relationship, stating

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that in the physician's professional opinion, after having

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completed a full assessment of the qualifying patient's medical

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history and current medical condition, the qualifying patient

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has a debilitating medical condition for which the potential

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benefits of the medical use of marijuana would likely outweigh

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the health risks for the qualifying patient and would likely be

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superior to treatment without the medical use of marijuana.

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Section 4.  Compassion centers.

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(a)  Duty of department.--The department may establish its

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own and shall license any privately owned compassion center.

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(b)  Sales tax.--State sales tax at the rate imposed under

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Article II of the act of March 4, 1971 (P.L.6, No.2), known as

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the Tax Reform Code of 1971, shall be imposed on all sales of

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marijuana in this Commonwealth. If the county in which a sale of

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marijuana for medical use occurs has a sales tax, that sales tax

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shall be imposed on the sale also.

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(c)  Growth, processing or distribution of marijuana for

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medical treatment.--A compassion center shall maintain records

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of all marijuana it grows, processes or distributes for medical

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treatment and shall make its records available for inspection by

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the department.

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Section 5.  Medical use of marijuana permitted.

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(a)  Freedom from arrest, prosecution or penalty.--

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(1)  A qualifying patient shall not be subject to arrest,

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prosecution or penalty in any manner, or denied any right or

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privilege, including, but not limited to, civil penalty or

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disciplinary action by a professional licensing board, for

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the medical use of marijuana, provided that the patient

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possesses a registry identification card and no more than six

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marijuana plants and one ounce of usable marijuana.

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(2)  There shall exist a rebuttable presumption that a

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qualifying patient is engaged in the medical use of marijuana

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if he possesses a registry identification card and no more

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than six marijuana plants and one ounce of usable marijuana.

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The presumption may be rebutted by evidence that conduct

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related to marijuana was not for the purpose of alleviating

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the symptoms or effects of a patient's debilitating medical

27

condition.

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(3)  A qualifying patient may assert the medical use of

29

marijuana as an affirmative defense to any prosecution

30

involving marijuana unless the patient was in violation of

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this section when the events giving rise to the prosecution

2

occurred. The defense shall be presumed valid where the

3

evidence shows both of the following:

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(i)  At the time of the events giving rise to the

5

prosecution, the patient's medical records indicated or a

6

physician stated that, in the physician's professional

7

opinion, after having completed a full assessment of the

8

patient's medical history and current medical condition

9

made in the course of a bona fide physician-patient

10

relationship, the potential benefits of the medical use

11

of marijuana would likely outweigh the health risks for

12

the patient.

13

(ii)  The patient and his caregiver, if any, were

14

collectively in possession of no more than six marijuana

15

plants and one ounce of usable marijuana.

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(4)  Possession of, or application for, a registry

17

identification card shall not alone constitute probable cause

18

to search the person or the property of the person possessing

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or applying for the registry identification card, or

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otherwise subject the person or his property to inspection by

21

any governmental agency.

22

(5)  The provisions of the Controlled Substance, Drug,

23

Device and Cosmetic Act, relating to destruction of marijuana

24

shall not apply if a qualifying patient has in his possession

25

a registry identification card and no more than six marijuana

26

plants and one ounce of usable marijuana.

27

(b)  Patients under 18 years of age.--The provisions of

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subsection (a) shall not apply to a qualifying patient under 18

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years of age, unless:

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(1)  the patient's physician has explained to the patient

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and the patient's custodial parent, guardian or person having

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legal custody the potential risks and benefits of the medical

3

use of marijuana; and

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(2)  the custodial parent, guardian or person having

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legal custody consents in writing to: allow the patient's

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medical use of marijuana; serve as the patient's primary

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caregiver; and control the acquisition, dosage and frequency

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of the medical use of marijuana by the patient.

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(c)  Immunity of primary caregiver.--

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(1)  A primary caregiver who has in his possession a

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registry identification card shall not be subject to arrest,

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prosecution or penalty in any manner or denied any right or

13

privilege, including, but not limited to, civil penalty or

14

disciplinary action by a professional licensing board, for

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assisting a qualifying patient to whom the caregiver is

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connected through the department's registration process with

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the medical use of marijuana, provided that the caregiver

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possesses no more than six marijuana plants and one ounce of

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usable marijuana for the patient to whom he is connected

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through the department's registration process.

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(2)  There shall exist a rebuttable presumption that a

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primary caregiver is engaged in the medical use of marijuana

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if the caregiver possesses a registry identification card and

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no more than six marijuana plants and one ounce of usable

25

marijuana. The presumption may be rebutted by evidence that

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conduct related to marijuana was not for the purpose of

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alleviating the symptoms or effects of a qualifying patient's

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debilitating medical condition.

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(3)  A primary caregiver may assert the medical use of

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marijuana as an affirmative defense to any prosecution

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1

involving marijuana unless the caregiver was in violation of

2

this section when the events giving rise to the prosecution

3

occurred. The defense shall be presumed valid where the

4

evidence shows that:

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(i)  at the time of the events giving rise to the

6

prosecution, the patient's medical records indicated or a

7

physician stated that, in the physician's professional

8

opinion, after having completed a full assessment of the

9

patient's medical history and current medical condition

10

made in the course of a bona fide physician-patient

11

relationship, the potential benefits of the medical use

12

of marijuana would likely outweigh the health risks for

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the patient; and

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(ii)  the patient and his caregiver, if any, were

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collectively in possession of no more than six marijuana

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plants and one ounce of usable marijuana.

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(4)  Possession of, or application for, a registry

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identification card shall not alone constitute probable cause

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to search a person or property of a person possessing or

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applying for the registry identification card or otherwise

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subject the person or his property to inspection by any

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governmental agency.

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(5)  The provisions of the Controlled Substance, Drug,

24

Device and Cosmetic Act, relating to destruction of marijuana

25

determined to exist by the department, shall not apply if a

26

primary caregiver has in his possession a registry

27

identification card and no more than six marijuana plants and

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one ounce of usable marijuana.

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(d)  Immunity of physician.--A physician shall not be subject

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to arrest, prosecution or penalty in any manner, or denied any

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1

right or privilege, including, but not limited to, civil penalty

2

or disciplinary action by the State Board of Medicine for

3

providing written certification for the medical use of marijuana

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to a qualifying patient.

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(e)  Personal proximity.--No person shall be subject to

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arrest or prosecution for constructive possession, conspiracy or

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any other offense for simply being in the presence or vicinity

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of the medical use of marijuana as permitted under this act.

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Section 6.  Operation of a motorized vehicle prohibited.

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The provisions of this act shall not be construed to permit

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any person to operate, navigate or be in actual physical control

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of any motor vehicle, aircraft or motorboat while under the

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influence of marijuana; or smoke marijuana in a school bus or

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other form of public transportation, on any school grounds, in

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any correctional facility, at any public park or beach, at any

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recreation center or at any place where cigarette smoking is

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prohibited by law or by organizational policy. A person who

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commits an act as provided in this section shall be subject to

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such penalties as provided by law.

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Section 7.  Misrepresentation prohibited.

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It shall be a violation of 18 Pa.C.S. § 5503 (relating to

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disorderly conduct) for a person to fabricate or misrepresent a

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registry identification card to a law enforcement official.

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Section 8.  Registry identification cards.

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(a)  Registry.--The department shall establish a registry and

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shall issue a registry identification card to a qualifying

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patient who submits the following information in accordance with

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the department's regulations:

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(1)  written certification that the person is a

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qualifying patient;

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(2)  an application or renewal fee of not less than $50,

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which may be based on a sliding scale as determined by the

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secretary;

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(3)  name, address and date of birth of the patient;

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(4)  name, address and telephone number of the patient's

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physician; and

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(5)  name, address and date of birth of the patient's

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primary caregiver, if any.

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(b)  Issuance of registry identification card to qualified

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patient.--Before issuing a registry identification card, the

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department shall verify the information contained in the

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application or renewal form submitted under this section. The

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department shall approve or deny an application or renewal

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within 15 days of receipt of the application or renewal and

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shall issue a registry identification card within five days of

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approving the application or renewal. The department may deny an

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application or renewal only if the applicant fails to provide

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the information required under this section or if the department

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determines that the information was falsified. Denial of an

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application is considered a final agency decision, subject to

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review by the Commonwealth Court and the Supreme Court.

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(c)  Issuance of registry identification card to caregiver.--

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The department shall issue a registry identification card to the

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caregiver named in a patient's approved application if the

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caregiver signs a statement agreeing to provide marijuana only

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to the patient who has named him as caregiver.

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(d)  Information on face of registry identification card.--A

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registry identification card shall contain the following

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information:

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(1)  the name, address and date of birth of the patient;

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(2)  the name, address and date of birth of the patient's

2

caregiver, if any;

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(3)  the date of issuance and expiration date of the

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registry identification card;

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(4)  photo identification of the cardholder; and

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(5)  such other information that the department may

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specify in its regulations.

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(e)  Changes in listed information.--A patient who has been

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issued a registry identification card shall notify the

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department of any change in the patient's name, address,

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physician or caregiver, or change in status of the patient's

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debilitating medical condition, within ten days of such change,

13

or the registry identification card shall be deemed null and

14

void.

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(f)  Right-to-Know Law inapplicable.--The department shall

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maintain a confidential list of the persons to whom it has

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issued registry identification cards. Individual names and other

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identifying information on the list shall be confidential, and

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shall not be considered a public record under the act of

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February 14, 2008 (P.L.6, No.3), known as the Right-To-Know Law,

21

and shall not be disclosed except to:

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(1)  authorized employees of the department as necessary

23

to perform official duties of the department; or

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(2)  authorized employees of State or local law

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enforcement agencies, only as necessary to verify that a

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person who is engaged in the suspected or alleged medical use

27

of marijuana is lawfully in possession of a registry

28

identification card.

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Section 9.  Funding.

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The secretary may accept from any governmental department or

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agency, public or private body or any other source grants or

2

contributions to be used in carrying out the purposes of this

3

act.

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Section 10.  Reports by secretary.

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The secretary shall report annually to the Governor and the

6

General Assembly on the number of applications for registry

7

identification cards, the number of qualifying patients and

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primary caregivers approved, the nature of the debilitating

9

medical conditions of the patients, the number of registry

10

identification cards revoked and the number of physicians

11

providing written certifications for patients. The report shall

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not contain any identifying information of patients, caregivers

13

or physicians.

14

Section 11.  Health insurance.

15

Nothing in this act shall be construed to require a

16

government medical assistance program or private health insurer

17

to reimburse a person for costs associated with the medical use

18

of marijuana, or an employer to accommodate the medical use of

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marijuana in any workplace.

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Section 12.  Sovereign immunity.

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The State shall not be held liable for any deleterious

22

outcomes from the medical use of marijuana by any qualifying

23

patient.

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Section 13.  Rules and regulations.

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The secretary shall promulgate rules and regulations to

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effectuate the purposes of this act. The regulations shall

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establish the application and renewal form, process and fee

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schedule and any limitations in the public interest on

29

debilitating medical conditions not specifically included in

30

this act.

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Section 14.  Duty of Pennsylvania State Police.

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The Pennsylvania State Police shall advise the department and

3

caregivers on effective security measures for the possession and

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transportation of medical marijuana and shall inspect sites if

5

requested.

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Section 15.  Effective date.

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This act shall take effect in 90 days.

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