10-144-122 Me. Code R. § 2

Current through 2022-32, August 10, 2022
Section 144-122-2 - SCOPE AND PROTECTED CONDUCT
2.1 Protections: legal medical use of marijuana. The protections and requirements of these rules are for conduct that is expressly authorized by these rules for the legal medical use of marijuana by qualifying patients, and for those who assist qualifying patients as primary caregivers and principal officers, board members and employees of registered dispensaries. Also see Section 11.14.
2.1.1 Violation of other laws. These protections do not extend to violations of other state and federal laws.
2.1.2 Protected conduct by anyone providing paraphernalia. A person may provide a qualifying patient or a primary caregiver with marijuana paraphernalia for purposes of the qualifying patient's medical use of marijuana in accordance with these rules and be in the presence or vicinity of the medical use of marijuana as allowed under these rules. The person providing the paraphernalia must verify the registry identification card of the registered patient or registered primary caregiver; or the qualifying patient's written physician certification or the primary caregiver's written designation by the qualifying patient, if the qualifying patient or the primary caregiver is not registered with the department.
2.1.3 Protected conduct by a visiting qualifying patient. A qualifying patient visiting the State from another jurisdiction that authorizes the medical use of marijuana pursuant to a law or regulation of another state or political subdivision may engage in conduct authorized for a qualifying patient by these rules if the following criteria are met:
2.1.3.1 Maine form. The visitor shall possess a valid Maine-approved written physician certification form completed, signed and dated by the visitor's home-jurisdiction treating physician. The Maine form is available on the division's webpage at http://www.maine.gov/dhhs/dlrs/mmm/index.shtml.
2.1.3.2 Home-jurisdiction certification. The visitor shall possess a valid medical use of marijuana certification issued by the visitor's home-jurisdiction.
2.1.3.3 Photographic identification. The visitor shall possess a valid photographic identification card or driver's license issued by the visitor's home-jurisdiction.
2.1.4 Possession of certain documents; application for registry identification card. Possession of a registry identification card by a cardholder, the act of applying for a registry identification card, possession of a physician's written certification or possession of a primary caregiver or dispensary designation form is not evidence of unlawful conduct and may not be used to establish probable cause for the search of that person or that person's property.
2.1.4.1 The possession of or application for a registry identification card or possession of a physician's written certification does not prevent the issuance of a warrant if probable cause exists on other grounds. See 22 M.R.S.A. §2425(7).
2.2 Rights of persons or entities acting pursuant to these rules. A person whose conduct is authorized under these rules may not be denied any right or privilege or be subjected to arrest, prosecution, penalty or disciplinary action, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for lawfully engaging in conduct involving the medical use of marijuana authorized under these rules. See 22 M.R.S.A. §2423-E(1).
2.3 School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person solely for that person's status as a qualifying patient or a primary caregiver unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding.
2.3.1 Section 2.3 of these rules does not prohibit a restriction on the administration or cultivation of marijuana on premises when that administration or cultivation would be inconsistent with the general use of the premises.
2.3.2 A landlord or business owner may prohibit the smoking of marijuana for medical purposes on the premises of the landlord or business if the landlord or business owner prohibits all smoking on the premises and posts notice to that effect on the premises. See 22 M.R.S.A. §2423-E(2).
2.4 Person may not be denied parental rights and responsibilities or contact with a minor child. A person may not be denied parental rights and responsibilities with respect to or contact with a minor child as a result of acting in accordance with these rules, unless the person's conduct is contrary to the best interests of the minor child as set out in 19-A Maine Revised Statutes, section 1653, subsection 3.
2.5 Prohibition on seizure and retention. Except when necessary for an ongoing criminal or civil investigation, a law enforcement officer may not seize marijuana that is in the possession of a qualifying patient, primary caregiver or registered dispensary as authorized by these rules.
2.5.1 A law enforcement officer in possession of marijuana seized in violation of Section 2.5 of these rules must return the marijuana within 7 days after receiving a written request for return from the owner of the marijuana.
2.5.2 Notwithstanding the provisions of Title 14 Maine Revised Statutes, chapter 741, if the law enforcement officer fails to comply with Section 2.5 by returning marijuana possessed in violation of these rules, the owner of the marijuana may file a claim in the District Court in the district where the owner lives, or where the law enforcement officer is employed. See 22 M.R.S.A. §2423-E(4).
2.6 Proof of authorized conduct. To receive protection for conduct authorized by these rules, a qualifying patient, a visiting qualifying patient and a primary caregiver must comply with the following applicable provision.
2.6.1 Qualifying patient. As proof of authorized conduct, a qualifying patient must present upon request of a law enforcement officer the patient's driver's license that contains a photograph as described under 29-A, Maine Revised Statutes, section 1401 or a nondriver photo identification card as described under 29-A, Maine Revised Statutes, section 1410 and one of the following:
2.6.1.1 The original, unexpired physician's written certification issued to the non-registered qualifying patient; or
2.6.1.2 An unexpired registry identification card issued to the qualifying patient who voluntarily registered with the department.
2.6.2 Visiting qualifying patient. A qualifying patient who is visiting the State from another jurisdiction must present upon request of a law enforcement officer proof of authorized conduct in compliance with Section 2.1.3 of these rules.
2.6.3 Primary caregiver. As proof of authorized conduct, a primary caregiver must present upon request of a law enforcement officer the primary caregiver's driver's license that contains a photograph as described under 29-A, Maine Revised Statutes, section 1401 or a nondriver photo identification card as described under 29-A, Maine Revised Statutes, section 1410 and one of the following:
2.6.3.1 An unexpired registry identification card issued to the primary caregiver who is required to register with the department; or
2.6.3.2 The original, unexpired primary caregiver designation form signed and dated by the qualifying patient if the primary caregiver does not have to register. See 22 M.R.S.A. §2423-E(5).

CULTIVATION OF MARIJUANA

2.7 Cultivation of marijuana. All cultivation of marijuana must take place in an enclosed locked facility or an enclosed outdoor area on property that is owned or under the control of the qualifying patient, caregiver or registered dispensary, subject to the limitations below.
2.7.1 Enclosed, locked facility and enclosed outdoor area. Enclosed, locked facility means a closet, room, building, greenhouse or other enclosed area that is equipped with locks or other security devices that permit access only by the individual authorized to cultivate the marijuana. See 22 M.R.S.A. §2422(3).
2.7.1.1 Security. Cultivation of marijuana in an enclosed locked facility or an enclosed outdoor area requires implementation of appropriate security measures to discourage theft of marijuana and prevent unauthorized entrance, in accordance with the following:
2.7.1.1.1 Fence. An enclosed outdoor area must have a privacy fence at least 6 feet high that obscures the view of the marijuana to discourage theft and unauthorized intrusion. When this height requirement is inconsistent with local ordinances regarding fences, deference is given to local ordinance height requirements. Qualifying patients or caregivers must comply with local ordinances, if any, regarding boundary setback requirements.
2.7.1.1.2 Locks. Enclosed locked facilities and enclosed outdoor areas must have locks sufficient to discourage theft and unauthorized entrance.
2.7.1.2 Pesticides. Registered dispensaries and registered primary caregivers may not use a pesticide on marijuana plants cultivated for patients unless the pesticide is exempt from federal registration requirements pursuant to 7 U.S.C. § 136w(b) and is registered with the Maine Board of Pesticides Control pursuant to 7 M.R.S.A. §607.
2.7.1.2.1 Incorporation by reference. Pesticides exempt from federal registration are set forth in 40 C.F.R. §152.25(f) (2012), which is incorporated herein by reference pursuant to 5 M.R.S.A. §8056.
2.7.1.2.2 Copy. A copy of 40 C.F.R. §152.25(f) (2012) is available online at http://www.gpo.gov/fdsys/pkg/CFR-2012-title40-vol25/xml/CFR-2012-title40-vol25-sec152-25.xml, or may be obtained from the Maine Department of Health and Human Services, Division of Licensing and Regulatory Services, 11 State House Station, Augusta, Maine 04333, or the Maine Office of the Secretary of State, 101 State House Station, Augusta, Maine 04333.
2.7.1.2.3 Violation. A violation of 40 C.F.R. §152.25(f) (2012) constitutes a violation of the Rules Governing the Maine Medical Use of Marijuana Program, 10-144 C.M.R. Ch. 122.
2.7.2 Patient cultivation of marijuana. A qualifying patient who elects to cultivate marijuana plants must keep the plants in an enclosed, locked facility unless the plants are being transported because the patient is moving or taking the plants to the patient's own property in order to cultivate them. See 22 M.R.S.A. §2423-A(3)(A).
2.7.2.1 Same household. Two or more qualifying patients who are members of the same household and cultivating their own marijuana may share one enclosed, locked facility for cultivation; See 22 M.R.S.A. §2423-A(1)(B).
2.7.2.2 Designate registered caregiver when absent. When a patient is absent and unable to care for his or her marijuana plants, the cultivating qualifying patient may designate a registered primary caregiver to care for the marijuana plants in the qualifying patient's enclosed locked facility without pay and for a time-limited period. The qualifying patient must give a completed department-approved designation form that includes the designation is without pay and the specific time-limited dates to the designated registered primary caregiver prior to taking temporary care of the marijuana plants.
2.7.3 Primary caregiver cultivation of marijuana. A primary caregiver who has been designated by a qualifying patient to cultivate marijuana for the patient's medical use must keep all plants in an enclosed, locked facility unless the plants are being transported because the primary caregiver is moving or taking the plants to the primary caregiver's own property in order to cultivate them.
2.7.3.1 Same household or family. Two primary caregivers who are members of the same family or household may share the same enclosed, locked facility. See 22 M.R.S.A. §2423-A(3) (D).
2.7.3.2 Designate registered caregiver when absent. When the cultivating primary caregiver is absent and unable to care for the marijuana plants, the cultivating primary caregiver may designate a registered primary caregiver to care for the marijuana plants in the cultivating primary caregiver's enclosed locked facility without pay and for a time-limited period. The cultivating primary caregiver must give a completed department-approved designation form that includes the designation is without pay and the specific time-limited dates to the designated registered primary caregiver prior to taking temporary care of the marijuana plants.
2.7.4 Registered dispensary cultivation of marijuana. The registered dispensary that has been designated by a qualifying patient to cultivate marijuana for the patient's medical use must keep all plants in an enclosed, locked facility unless the plants or paraphernalia are being transported between the retail location of the registered dispensary and the dispensary's cultivation site. For the purposes of this section only, the number of plants that may be cultivated in an enclosed outdoor area may not exceed thirty.
2.7.4.1 Access by registered cardholders. Access to the enclosed, locked facility is limited to a registered cardholder who is a principal officer, board member, or employee of a registered dispensary when acting in his or her official capacity.
2.7.4.2 RESERVED
2.7.4.3 Organic certification. Marijuana for medical use may not be labeled "organic" unless the marijuana plants and prepared marijuana are produced, processed, and certified to be consistent with national organic standards in compliance with the laws and regulations promulgated by the United States Department of Agriculture.
2.8 Lawful disposal of excess prepared marijuana. Qualifying patients, primary caregivers, hospices and nursing facilities designated as primary caregivers, and registered dispensaries may lawfully dispose of excess prepared marijuana in accordance with the following provisions:
2.8.1 Qualifying patient. For the purpose of disposing of excess prepared marijuana that is no longer needed for the qualifying patient's medical use, the qualifying patient may furnish or offer to furnish to another qualifying patient for that qualifying patient's medical use of marijuana up to 2 ½ ounces of prepared marijuana if nothing of value is offered or transferred in return; See 22 M.R.S.A. §2423-A(1) (D).
2.8.1.1 The qualifying patient who is furnishing the prepared marijuana to another qualifying patient is prohibited from cultivating more than the allowed number of plants as set out in these rules unless the patient furnishing the marijuana is also the primary caregiver of the other patient.
2.8.2 Primary caregiver. For the purpose of disposing of excess prepared marijuana, a primary caregiver may give the marijuana to a registered dispensary or another primary caregiver if nothing of value is offered or transferred in return.
2.8.2.1 A primary caregiver who transfers excess prepared marijuana in accordance with these rules does not by virtue of only that transfer qualify as a member of a collective. See 22 M.R.S.A. §2423-A(2) (H).
2.8.3 Registered dispensary. For the purpose of disposing of excess prepared marijuana that is no longer needed for a qualifying patient's medical use, the registered dispensary may, at no cost and not for resale, give it to qualifying patients who cannot afford to purchase marijuana for medical use if nothing of value is offered or transferred in return. The dispensary must keep records of these transactions.
2.8.4 Hospice or nursing facility. For the purpose of disposing of excess prepared marijuana, a hospice provider or a nursing facility designated as a primary caregiver may give the prepared marijuana to a registered dispensary or another primary caregiver if nothing of value is offered or transferred in return.
2.8.5 Law enforcement office. For the purpose of disposing of excess prepared marijuana, it may be transported to a state or local law enforcement office. Presentation of a valid registry identification card or a valid physician's written certification and a Maine driver's license or other state-issued photo identification may be required.
2.9 Unlawful possession of excess marijuana; forfeiture. A person who possesses female nonflowering marijuana plants, mature marijuana plants, prepared marijuana, or harvested dried unprepared marijuana in varying stages of processing in excess of the limits provided in these rules must forfeit the excess amounts to a law enforcement officer. The law enforcement officer is authorized to remove all excess female nonflowering marijuana plants, mature marijuana plants, prepared marijuana, and harvested dried unprepared marijuana in varying stages of processing in order to catalog the amount of excess marijuana. Possession of marijuana in excess of the limits authorized by these rules is a violation of the following laws:
2.9.1 Possession of marijuana in an excess amount up to 2 ½ ounces is a violation of 22 M.R.S.A. chapter 558, § 2383; and
2.9.2 Possession of marijuana in an excess amount over 2 ½ ounces is a violation of 17-A M.R.S.A. chapter 45. See 22 M.R.S.A. §§2423-A(7) and 2423-E(6).
2.10 Repeat forfeiture. If a cardholder has previously forfeited excess marijuana pursuant to Section 2.9 of these rules and a subsequent forfeiture occurs, the department shall revoke the registry identification card of the cardholder and the entire amount of marijuana seedlings, seeds, stalks and roots, female nonflowering marijuana plants, mature marijuana plants, prepared marijuana, and harvested dried unprepared marijuana in varying stages of processing must be forfeited to a law enforcement officer. See 22 M.R.S.A. §§2323-A(8) and 2423-E(7).
2.11 Defense for possession of excess marijuana. Except as provided in Section 2.10 of these rules, a qualifying patient may assert the medical purpose for using marijuana as a defense to any prosecution involving marijuana possession.
2.11.1 A qualifying patient may present evidence in court that the patient's necessary medical use or cultivation circumstances warranted exceeding the amount of marijuana allowed by these rules and that the amount was reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of treating or alleviating the patient's debilitating medical condition or symptoms associated with the patient's debilitating medical condition. See 22 M.R.S.A. §2423-E(8).
2.12 Prohibitions. These rules prohibit any person from:
2.12.1 Undertaking any task under the influence of marijuana when doing so would constitute negligence or professional malpractice or would otherwise violate any professional standard;
2.12.2 Possessing marijuana or otherwise engaging in the medical use of marijuana:
2.12.2.1 In a school bus;
2.12.2.2 On the grounds of any preschool or primary or secondary school; or
2.12.2.3 In any correctional facility.
2.12.3 Smoking marijuana:
2.12.3.1 On any form of public transportation; or
2.12.3.2 In any public place.
2.12.4 Operating, navigating, or be in actual physical control of any motor vehicle, aircraft, motorboat, snowmobile, or all-terrain vehicle while under the influence of marijuana; or
2.12.5 Using marijuana if that person does not have a debilitating medical condition.
2.13 Construction. These rules may not be construed to require:
2.13.1 A government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana; or
2.13.2 An employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.
2.14 Laboratory testing of marijuana. The department may obtain, possess and perform laboratory testing on marijuana from registered dispensaries.
2.15 Annual report. The department shall submit to the Legislature an annual report by April 1st each year that does not disclose any identifying information about cardholders or physicians, but does contain, at a minimum:
2.15.1 The number of applications and renewals filed for registry identification cards;
2.15.2 The number of registered patients and primary caregivers approved in each county;
2.15.3 The number of registry identification cards revoked;
2.15.4 The number of physicians providing written certifications for registered patients;
2.15.5 The number of registered dispensaries;
2.15.6 The number of principal officers, board members and employees of registered dispensaries; and
2.15.7 Program revenues and expenses. See 22 M.R.S.A. §2425(10).

10-144 C.M.R. ch. 122, § 2