74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 539
 
                           A-Engrossed
 
                         Senate Bill 161
                 Ordered by the Senate April 18
           Including Senate Amendments dated April 18
 
Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Governor Theodore R.
  Kulongoski for Department of Human Services)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
   { +  Adds agitation due to Alzheimer's disease as qualifying
condition for medical marijuana use. + }
  Requires Department of Human Services to conduct criminal
records check of person responsible for marijuana grow site.
Authorizes department to deny application for registry
identification card of person prohibited by court order from
obtaining registry identification card. Requires department to
revoke registry identification card issued to person prohibited
by court order from participating in medical use of marijuana.
  Modifies documentation that registry identification cardholder
must provide to department annually and circumstances that
require cardholder to return card to department.  { + Increases
time that cardholder has to return registry identification card
and associated cards to department after attending physician has
determined medical use of marijuana is contraindicated for
person's condition. Authorizes department to grant extension to
allow cardholder time to obtain second opinion. + }
  Eliminates affirmative defense to certain criminal charges of
person producing medical marijuana at place other than authorized
marijuana grow site. Limits multiple-person grow site to
production of medical marijuana for four eligible persons
concurrently. Modifies restrictions on marijuana grow site
registration card issued to person convicted of certain crimes.
 { +  Specifies that 'delivery' of controlled substance does not
include transfer of marijuana by registry identification
cardholder to person responsible for marijuana grow site if no
consideration is paid for transfer.
  Provides civil immunity to Department of Human Services
employees and agents acting within scope of employment related to
medical marijuana requirements. + }
 
                        A BILL FOR AN ACT
Relating to medical marijuana; creating new provisions; and
  amending ORS 475.302, 475.304, 475.309, 475.316 and 475.320.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 475.302 is amended to read:
  475.302. As used in ORS 475.300 to 475.346:
  (1) 'Attending physician' means a physician licensed under ORS
chapter 677 who has primary responsibility for the care and
treatment of a person diagnosed with a debilitating medical
condition.
  (2) 'Debilitating medical condition' means:
  (a) Cancer, glaucoma,  { + agitation due to Alzheimer's
disease, + } positive status for human immunodeficiency virus or
acquired immune deficiency syndrome, or treatment for these
conditions;
  (b) A medical condition or treatment for a medical condition
that produces, for a specific patient, one or more of the
following:
  (A) Cachexia;
  (B) Severe pain;
  (C) Severe nausea;
  (D) Seizures, including but not limited to seizures caused by
epilepsy; or
  (E) Persistent muscle spasms, including but not limited to
spasms caused by multiple sclerosis; or
  (c) Any other medical condition or treatment for a medical
condition adopted by the department by rule or approved by the
department pursuant to a petition submitted pursuant to ORS
475.334.
  (3) 'Delivery' has the meaning given that term in ORS 475.005.
'Delivery' does not include transfer of marijuana by a registry
identification cardholder to another registry identification
cardholder  { + or to a person responsible for a marijuana grow
site + } if no consideration is paid for the transfer.
  (4) 'Department' means the Department of Human Services.
  (5) 'Designated primary caregiver' means an individual 18 years
of age or older who has significant responsibility for managing
the well-being of a person who has been diagnosed with a
debilitating medical condition and who is designated as such on
that person's application for a registry identification card or
in other written notification to the department. 'Designated
primary caregiver' does not include the person's attending
physician.
  (6) 'Marijuana' has the meaning given that term in ORS 475.005.
  (7) 'Marijuana grow site' means a location where marijuana is
produced for use by a registry identification cardholder and that
is registered under the provisions of ORS 475.304.
  (8) 'Medical use of marijuana' means the production,
possession, delivery, or administration of marijuana, or
paraphernalia used to administer marijuana, as necessary for the
exclusive benefit of a person to mitigate the symptoms or effects
of the person's debilitating medical condition.
  (9) 'Production' has the meaning given that term in ORS
475.005.
  (10) 'Registry identification card' means a document issued by
the department that identifies a person authorized to engage in
the medical use of marijuana and the person's designated primary
caregiver, if any.
  (11) 'Usable marijuana' means the dried leaves and flowers of
the plant Cannabis family Moraceae, and any mixture or
preparation thereof, that are appropriate for medical use as
allowed in ORS 475.300 to 475.346. 'Usable marijuana' does not
include the seeds, stalks and roots of the plant.
  (12) 'Written documentation' means a statement signed by the
attending physician of a person diagnosed with a debilitating
medical condition or copies of the person's relevant medical
records.
  SECTION 2. ORS 475.304 is amended to read:
 
  475.304. (1) The Department of Human Services shall establish
by rule a marijuana grow site registration system to authorize
production of marijuana by a registry identification cardholder,
a designated primary caregiver who grows marijuana for the
cardholder or a person who is responsible for a marijuana grow
site. The marijuana grow site registration system adopted must
require a registry identification cardholder to submit an
application to the department that includes:
  (a) The name of the person responsible for the marijuana grow
site;
  (b) The address of the marijuana grow site;
  (c) The registry identification card number of the registry
cardholder for whom the marijuana is being produced; and
  (d) Any other information the department considers necessary.
  (2) The department shall issue a marijuana grow site
registration card to a registry identification cardholder who has
met the requirements of subsection (1) of this section.
  (3) A person who has been issued a marijuana grow site
registration card under this section must display the
registration card at the marijuana grow site at all times when
marijuana is being produced.
  (4) A marijuana grow site registration card must be obtained
and posted for each registry identification cardholder for whom
marijuana is being produced at a marijuana grow site.
  (5) All usable marijuana, plants, seedlings and seeds
associated with the production of marijuana for a registry
identification cardholder by a person responsible for a marijuana
grow site are the property of the registry identification
cardholder and must be provided to the registry identification
cardholder upon request.
  (6)(a)  { + The department shall conduct a criminal records
check under ORS 181.534 of any person whose name is submitted as
a person responsible for a marijuana grow site.
  (b) + } The department shall restrict a marijuana grow site
registration card issued to a registry identification cardholder
who has been convicted of  { + a first offense of + } violating
ORS 475.840 (1)(a) or (b) to prohibit for a period of five years
from the date of conviction the production of marijuana otherwise
authorized by this section at a location where the registry
identification cardholder is present.
    { - (b) A registry identification cardholder who has been
convicted of violating ORS 475.840 (1)(a) or (b) may not be
issued a marijuana grow site registration card within five years
of the date of the conviction for violating ORS 475.840 (1)(a) or
(b) if the conviction was for a first offense to prohibit for a
period of five years from the date of conviction the production
of marijuana otherwise authorized by this section at a location
where the registry identification cardholder is present. - }
  (c) A person other than a registry identification cardholder
who has been convicted of violating ORS 475.840 (1)(a) or (b) may
not produce marijuana for a registry identification cardholder
within five years of the date of the conviction for violating ORS
475.840 (1)(a) or (b) if the conviction was for a first offense.
  (d) A person convicted more than once of violating ORS 475.840
(1)(a) or (b) may not be issued a marijuana grow site
registration card or produce marijuana for a registry
identification cardholder.
  (7) A registry identification cardholder or the designated
primary caregiver of the cardholder may reimburse the person
responsible for a marijuana grow site for the costs of supplies
and utilities associated with the production of marijuana for the
registry identification cardholder. No other costs associated
with the production of marijuana for the registry identification
cardholder, including the cost of labor, may be reimbursed.
  SECTION 3. ORS 475.309 is amended to read:
 
  475.309. (1) Except as provided in ORS 475.316, 475.320 and
475.342, a person engaged in or assisting in the medical use of
marijuana is excepted from the criminal laws of the state for
possession, delivery or production of marijuana, aiding and
abetting another in the possession, delivery or production of
marijuana or any other criminal offense in which possession,
delivery or production of marijuana is an element if the
following conditions have been satisfied:
  (a) The person holds a registry identification card issued
pursuant to this section, has applied for a registry
identification card pursuant to subsection (9) of this section,
is the designated primary caregiver of the cardholder or
applicant, or is the person responsible for a marijuana grow site
that is producing marijuana for the cardholder and is registered
under ORS 475.304; and
  (b) The person who has a debilitating medical condition, the
person's primary caregiver and the person responsible for a
marijuana grow site that is producing marijuana for the
cardholder and is registered under ORS 475.304 are collectively
in possession of, delivering or producing marijuana for medical
use in amounts allowed under ORS 475.320.
  (2) The Department of Human Services shall establish and
maintain a program for the issuance of registry identification
cards to persons who meet the requirements of this section.
Except as provided in subsection (3) of this section, the
department shall issue a registry identification card to any
person who pays a fee in the amount established by the department
and provides the following:
  (a) Valid, written documentation from the person's attending
physician stating that the person has been diagnosed with a
debilitating medical condition and that the medical use of
marijuana may mitigate the symptoms or effects of the person's
debilitating medical condition;
  (b) The name, address and date of birth of the person;
  (c) The name, address and telephone number of the person's
attending physician;
  (d) The name and address of the person's designated primary
caregiver, if the person has designated a primary caregiver at
the time of application; and
  (e) A written statement that indicates whether the marijuana
used by the cardholder will be produced at a location where the
cardholder or designated primary caregiver is present or at
another location.
  (3) The department shall issue a registry identification card
to a person who is under 18 years of age if the person submits
the materials required under subsection (2) of this section, and
the custodial parent or legal guardian with responsibility for
health care decisions for the person under 18 years of age signs
a written statement that:
  (a) The attending physician of the person under 18 years of age
has explained to that person and to the custodial parent or legal
guardian with responsibility for health care decisions for the
person under 18 years of age the possible risks and benefits of
the medical use of marijuana;
  (b) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
consents to the use of marijuana by the person under 18 years of
age for medical purposes;
  (c) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
agrees to serve as the designated primary caregiver for the
person under 18 years of age; and
  (d) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
agrees to control the acquisition of marijuana and the dosage and
frequency of use by the person under 18 years of age.
  (4) A person applying for a registry identification card
pursuant to this section may submit the information required in
this section to a county health department for transmittal to the
Department of Human Services. A county health department that
receives the information pursuant to this subsection shall
transmit the information to the Department of Human Services
within five days of receipt of the information. Information
received by a county health department pursuant to this
subsection shall be confidential and not subject to disclosure,
except as required to transmit the information to the Department
of Human Services.
  (5) { + (a) + } The department shall verify the information
contained in an application submitted pursuant to this section
and shall approve or deny an application within thirty days of
receipt of the application.
    { - (a) - }   { + (b) In addition to the authority granted to
the department under ORS 475.316 to deny an application, + } the
department may deny an application   { - only - }  for the
following reasons:
  (A) The applicant did not provide the information required
pursuant to this section to establish the applicant's
debilitating medical condition and to document the applicant's
consultation with an attending physician regarding the medical
use of marijuana in connection with such condition, as provided
in subsections (2) and (3) of this section;   { - or - }
  (B) The department determines that the information provided was
falsified  { - . - }  { + ; or
  (C) The applicant has been prohibited by a court order from
obtaining a registry identification card. + }
    { - (b) - }   { + (c) + } Denial of a registry identification
card shall be considered a final department action, subject to
judicial review.  Only the person whose application has been
denied, or, in the case of a person under the age of 18 years of
age whose application has been denied, the person's parent or
legal guardian, shall have standing to contest the department's
action.
    { - (c) - }   { + (d) + } Any person whose application has
been denied may not reapply for six months from the date of the
denial, unless so authorized by the department or a court of
competent jurisdiction.
  (6)(a) If the department has verified the information submitted
pursuant to subsections (2) and (3) of this section and none of
the reasons for denial listed in subsection   { - (5)(a) - }
 { + (5)(b) + } of this section is applicable, the department
shall issue a serially numbered registry identification card
within five days of verification of the information. The registry
identification card shall state:
  (A) The cardholder's name, address and date of birth;
  (B) The date of issuance and expiration date of the registry
identification card;
  (C) The name and address of the person's designated primary
caregiver, if any;
  (D) Whether the marijuana used by the cardholder will be
produced at a location where the cardholder or designated primary
caregiver is present or at another location; and
  (E) Any other information that the department may specify by
rule.
  (b) When the person to whom the department has issued a
registry identification card pursuant to this section has
specified a designated primary caregiver, the department shall
issue an identification card to the designated primary caregiver.
The primary caregiver's registry identification card shall
contain the information provided in paragraph (a) of this
subsection.
  (7)(a) A person who possesses a registry identification card
shall:
  (A) Notify the department of any change in the person's name,
address, attending physician or designated primary caregiver
 { - ; and - }  { + . + }
   { +  (B) If applicable, notify the designated primary
caregiver of the cardholder and the person responsible for the
marijuana grow site that produces marijuana for the cardholder of
any change in status including, but not limited to:
  (i) The assignment of another individual as the designated
primary caregiver of the cardholder;
  (ii) The assignment of another individual as the person
responsible for a marijuana grow site producing marijuana for the
cardholder; or
  (iii) The end of the eligibility of the cardholder to hold a
valid registry identification card. + }
    { - (B) - }   { + (C) + } Annually submit to the department:
  (i) Updated written documentation  { + from the cardholder's
attending physician + } of the person's debilitating medical
condition  { +  and that the medical use of marijuana may
mitigate the symptoms or effects of the person's debilitating
medical condition + }; and
  (ii) The name of the person's designated primary caregiver if a
primary caregiver has been designated for the upcoming year.
  (b) If a person who possesses a registry identification card
fails to comply with this subsection, the card shall be deemed
expired. If a registry identification card expires, the
identification card of any designated primary caregiver of the
cardholder shall also expire.
  (8) { + (a) + } A person who possesses a registry
identification card pursuant to this section and who has been
diagnosed by the person's attending physician as no longer having
a debilitating medical condition  { + or whose attending
physician has determined that the medical use of marijuana is
contraindicated for the person's debilitating medical
condition + } shall return the registry identification card
 { + and any other associated Oregon Medical Marijuana Program
cards + } to the department within   { - seven - }   { + 30 + }
calendar days of notification of the diagnosis { +  or
notification of the contraindication + }.   { - Any designated
primary caregiver shall return the caregiver's identification
card within the same period of time. - }
   { +  (b) If, due to circumstances beyond the control of the
registry identification cardholder, a cardholder is unable to
obtain a second medical opinion about the cardholder's continuing
eligibility to use medical marijuana before the 30-day period
specified in paragraph (a) of this subsection has expired, the
department may grant the cardholder additional time to obtain a
second opinion before requiring the cardholder to return the
registry identification card and any associated cards. + }
  (9) A person who has applied for a registry identification card
pursuant to this section but whose application has not yet been
approved or denied, and who is contacted by any law enforcement
officer in connection with the person's administration,
possession, delivery or production of marijuana for medical use
may provide to the law enforcement officer a copy of the written
documentation submitted to the department pursuant to
 { - subsections - }   { + subsection + } (2) or (3) of this
section and proof of the date of mailing or other transmission of
the documentation to the department. This documentation shall
have the same legal effect as a registry identification card
until such time as the person receives notification that the
application has been approved or denied.
   { +  (10) A registry identification cardholder has the primary
responsibility of notifying the primary caregiver and person
responsible for the marijuana grow site that produces marijuana
for the cardholder of any change in status of the cardholder. If
the department is notified by the cardholder that a primary
caregiver or person responsible for a marijuana grow site has
changed, the department shall notify the primary caregiver or the
person responsible for the marijuana grow site by mail at the
address of record confirming the change in status and informing
the caregiver or person that their card is no longer valid and
must be returned to the department.
  (11) The department shall revoke the registry identification
card of a cardholder if a court has issued an order that
prohibits the cardholder from participating in the medical use of
marijuana or otherwise participating in the Oregon Medical
Marijuana Program under ORS 475.300 to 475.346. The cardholder
shall return the registry identification card to the department
within seven calendar days of notification of the revocation. If
the cardholder is a patient, the patient shall return the
patient's card and all other associated Oregon Medical Marijuana
Program cards.
  (12) The department and employees and agents of the department
acting within the course and scope of their employment are immune
from any civil liability that might be incurred or imposed for
the performance of or failure to perform duties required by this
section. + }
  SECTION 4. ORS 475.316 is amended to read:
  475.316. (1) No person authorized to possess, deliver or
produce marijuana for medical use pursuant to ORS 475.300 to
475.346 shall be excepted from the criminal laws of this state or
shall be deemed to have established an affirmative defense to
criminal charges of which possession, delivery or production of
marijuana is an element if the person, in connection with the
facts giving rise to such charges:
  (a) Drives under the influence of marijuana as provided in ORS
813.010;
  (b) Engages in the medical use of marijuana in a public place
as that term is defined in ORS 161.015, or in public view or in a
correctional facility as defined in ORS 162.135 (2) or youth
correction facility as defined in ORS 162.135 (6);
  (c) Delivers marijuana to any individual who the person knows
is not in possession of a registry identification card;
  (d) Delivers marijuana for consideration to any individual,
even if the individual is in possession of a registry
identification card;
  (e) Manufactures or produces marijuana at a place other than
 { - : - }
    { - (A)(i) One address for property under the control of the
patient; and - }
    { - (ii) One address for property under the control of the
primary caregiver of the patient that have been provided to the
Department of Human Services; or - }
    { - (B) - }  a marijuana grow site authorized under ORS
475.304; or
  (f) Manufactures or produces marijuana at more than one
address.
  (2) In addition to any other penalty allowed by law, a person
who the Department  { + of Human Services + } finds has willfully
violated the provisions of ORS 475.300 to 475.346, or rules
adopted under ORS 475.300 to 475.346, may be precluded from
obtaining or using a registry identification card for the medical
use of marijuana for a period of up to six months, at the
discretion of the department.
  SECTION 5. ORS 475.320 is amended to read:
  475.320. (1)(a) A registry identification cardholder or the
designated primary caregiver of the cardholder may possess up to
six mature marijuana plants and 24 ounces of usable marijuana.
  (b) Notwithstanding paragraph (a) of this subsection, if a
registry identification cardholder has been convicted of
violating ORS 475.840 (1)(a) or (b), the registry identification
cardholder or the designated primary caregiver of the cardholder
may possess one ounce of usable marijuana at any given time for a
period of five years from the date of the conviction.
    { - (2) If the marijuana used by the registry identification
cardholder is produced at a marijuana grow site where the
cardholder or designated primary caregiver is not present, the
person responsible for the marijuana grow site: - }
   { +  (2) A person authorized under ORS 475.304 to produce
marijuana at a marijuana grow site: + }
  (a) May produce marijuana for and provide marijuana to a
registry identification cardholder or that person's designated
primary caregiver as authorized under this section.
  (b) May possess up to six mature plants and up to 24 ounces of
usable marijuana for each cardholder or caregiver for
 { - which - }  { + whom + } marijuana is being produced.
  (c) May produce marijuana for   { - up to - }   { + no more
than + } four registry identification cardholders or designated
primary caregivers   { - per year - }  { +  concurrently + }.
  (d) Must obtain and display a marijuana grow site registration
card issued under ORS 475.304 for each registry identification
cardholder or designated primary caregiver for
  { - which - }   { + whom + } marijuana is being produced.
  (e) Must provide all marijuana produced for a registry
identification cardholder or designated primary caregiver to the
cardholder or caregiver at the time the person responsible for a
marijuana grow site ceases producing marijuana for the cardholder
or caregiver.
  (f) Must return the marijuana grow site registration card to
the registry identification cardholder to whom the card was
issued when requested to do so by the cardholder or when the
person responsible for a marijuana grow site ceases producing
marijuana for the cardholder or caregiver.
  (3) Except as provided in subsections (1) and (2) of this
section, a registry identification cardholder, the designated
primary caregiver of the cardholder and the person responsible
for a marijuana grow site producing marijuana for the registry
identification cardholder may possess a combined total of up to
six mature plants and 24 ounces of usable marijuana for that
registry identification cardholder.
  (4)(a) A registry identification cardholder and the designated
primary caregiver of the cardholder may possess a combined total
of up to 18 marijuana seedlings or starts as defined by rule of
the Department of Human Services.
  (b) A person responsible for a marijuana grow site may possess
up to 18 marijuana seedlings or starts as defined by rule of the
department for each registry identification cardholder for
  { - which - }   { + whom + } the person responsible for the
marijuana grow site is producing marijuana.
  SECTION 6.  { + The amendments to ORS 475.320 by section 5 of
this 2007 Act become operative on July 1, 2008. + }
                         ----------