MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Constitution; Judiciary, Division A
By: Senator(s) Younger
A CONCURRENT RESOLUTION PROPOSING TO CREATE NEW ARTICLE 16, SECTION 290 OF THE MISSISSIPPI CONSTITUTION OF 1890 TO PROVIDE CONSTITUTIONAL PROTECTION FOR THE LEGAL MEDICAL USE OF MARIJUANA; AND FOR RELATED PURPOSES.
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI, TWO-THIRDS OF THE SENATE AND HOUSE OF REPRESENTATIVES CONCURRING THEREIN, WHICH TWO-THIRDS CONSISTS OF NOT LESS THAN A MAJORITY OF THE MEMBERS ELECTED TO EACH HOUSE, That the following amendment to the Mississippi Constitution of 1890 is proposed to the qualified electors of the state for ratification or rejection at an election to be held on the first Tuesday after the first Monday of November 2019:
Article 16, Section 290, Mississippi Constitution of 1890, is created to read as follows:
Section 290. (1) Title. This section shall be known and cited as the "Mississippi Medical Marijuana Amendment of 2019."
(2) Definitions. As used in this section:
(a) "Acquire" or "acquisition" means coming to possess marijuana by means of any legal source authorized in this section, not from an unauthorized source, and in accordance with this section and any rules promulgated under this section.
(b) "Assist" or "assisting" means helping a qualifying patient make medical use of marijuana by enabling the medical use by any means authorized under this section.
(c) "Cardholder" means a qualifying patient, a dispensary agent, a cultivation facility agent, or a designated caregiver.
(d) "Cultivation facility" means an entity that:
(i) Has been licensed by the Medical Marijuana Commission under subsection (8) of this section; and
(ii) Cultivates, prepares, manufactures, processes, packages, sells to and delivers usable marijuana to a dispensary.
(e) "Cultivation facility agent" means an employee, supervisor, or agent of a cultivation facility who:
(i) Is twenty-one (21) years of age or older;
(ii) Works at the cultivation facility; and
(iii) Has registered with the Alcoholic Beverage Control Division under subsection (8) of this section.
(f) (i) "Designated caregiver" means a person who is at least twenty-one (21) years of age, has not been convicted of an excluded felony offense, has agreed to assist a physically disabled qualifying patient with the medical use of marijuana, and who has registered with the Department of Health under subsection (5) of this section;
(ii) "Designated caregiver" includes, without limitation, a parent:
1. Of a qualifying patient who is under the age of eighteen (18);
2. Required to register as a designated caregiver under this section; and
(iii) "Designated caregiver" does not include a member of the Mississippi National Guard or the United States military.
(g) "Dispensary" means an entity that has been licensed by the Medical Marijuana Commission under subsection (8) of this section.
(h) "Dispensary agent" means:
(i) An employee, supervisor, volunteer, or agent of a dispensary who:
1. Is twenty-one (21) years of age or older;
2. Works at the dispensary;
3. Has registered with the division under subsection (9) of this section; and
(ii) An owner, officer, or board member of a dispensary who has registered with the division under subsection (8) of this section.
(i) "Enclosed, locked facility" means a room, greenhouse, or other enclosed area equipped with locks or other security devices that permit access only by an authorized individual.
(j) "Excluded felony offense" means:
(i) A felony offense as determined by the jurisdiction where the felony offense occurred;
1. The Medical Marijuana Commission, the Department of Health, or the Alcoholic Beverage Control Division must determine whether an offense is a felony offense based upon a review of the relevant court records concerning the conviction for the offense; or
2. An offense that has been sealed by a court or for which a pardon has been granted is not considered an excluded felony offense.
(ii) A violation of a state or federal controlled substance law that was classified as a felony in the jurisdiction where the person was convicted, but not including:
1. An offense for which the sentence, including any term of probation, incarceration, or supervised release, was completed ten (10) or more years earlier; or
2. An offense that has been sealed by a court or for which a pardon has been granted.
(k) "Medical use" means the acquisition, possession, use, delivery, transfer, or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a qualifying patient's qualifying medical condition or symptoms associated with the qualifying patient's qualifying medical condition.
(l) "Physician" means a doctor of medicine or doctor of osteopathic medicine who holds a valid, unrestricted, and existing license to practice in the State of Mississippi and has been issued a registration from the United States Drug Enforcement Administration to prescribe controlled substances.
(m) "Qualifying medical condition" means one or more of the following:
(i) Cancer, glaucoma, positive status for human immunodeficiency virus/acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Tourette's syndrome, Crohn's disease, ulcerative colitis, post-traumatic stress disorder, severe arthritis, fibromyalgia, Alzheimer's disease, or the treatment of these conditions;
(ii) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; peripheral neuropathy; intractable pain, which is pain that has not responded to ordinary medications, treatment, or surgical measures for more than six (6) months; severe nausea; seizures, including, without limitation, those characteristic of epilepsy; or severe and persistent muscle spasms, including, without limitation, those characteristic of multiple sclerosis; and
(iii) Any other medical condition or its treatment approved by the Department of Health under subsection (4) of this section.
(n) (i) "Qualifying patient" means a person who has been diagnosed by a physician as having a qualifying medical condition and who has registered with the department under subsection (5) of this section; and
(ii) "Qualifying patient" does not include a member of the Mississippi National Guard or the United States military.
(o) "Registry identification card" means a document issued by the department or the division that identifies a person as a qualifying patient, a dispensary agent, a cultivation facility agent, or a designated caregiver.
(p) "Sealed" means to expunge, remove, sequester, and treat as confidential the record or records of a felony offense.
(q) (i) "Usable marijuana" means the stalks, seeds, roots, dried leaves, flowers, oils, vapors, waxes, and other portions of the marijuana plant and any mixture or preparation thereof; and
(ii) "Usable marijuana" does not include the weight of any ingredients other than marijuana that are combined with marijuana and prepared for consumption as food or drink.
(r) "Visiting qualifying patient" means a patient with a qualifying medical condition who is not a resident of Mississippi or who has been a resident of Mississippi for less than thirty (30) days and who is in actual possession of a registry identification card or its equivalent that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States and pertains to a qualifying medical condition under this section.
(s) (i) "Written certification" means a document signed by a physician stating that in the physician's professional opinion, after having completed an assessment of the qualifying patient's medical history and current medical condition made in the course of a physician-patient relationship, the qualifying patient has a qualifying medical condition;
(ii) A written certification must specify the qualifying patient's qualifying medical condition, which also must be noted in the physician's records;
(iii) A physician shall not issue written certification to a patient based on an assessment performed through telemedicine;
(iv) A written certification is not a medical prescription.
(t) (i) "Current use of marijuana" means use of marijuana that justifies the good faith belief of an employer that an applicant or employee is engaging in the use of marijuana;
(ii) "Current use of marijuana" is presumed when a positive test result for marijuana occurs.
(u) "Employee" means an individual employed by an employer, but does not include:
(i) An individual employed by his or her parents, spouse, or child;
(ii) An individual participating in a specialized employment training program conducted by a nonprofit sheltered workshop or rehabilitation facility;
(iii) An individual employed outside the State of Mississippi; or
(iv) An independent contractor.
(v) "Employer" means an entity that employs nine (9) or more employees in the State of Mississippi in twenty (20) or more calendar weeks in the current or preceding calendar year.
(w) (i) "Good faith belief" means reasonable reliance on a fact, or that which is held out to be factual, without intent to deceive or be deceived and without reckless or malicious disregard for the truth;
(ii) "Good faith belief" does not include a belief formed with gross negligence;
(iii) "Good faith belief" may be based on any of the following:
1. Observed conduct, behavior or appearance;
2. Information reported by a person believed to be reliable, including, without limitation, a report by a person who witnessed the use or possession of marijuana or marijuana paraphernalia by an applicant or employee in the workplace;
3. Written, electronic, or verbal statements from the employee or other persons;
4. Lawful video surveillance;
5. A record of government agencies, law enforcement agencies, or courts;
6. A positive test result for marijuana;
7. A warning label, usage standard, or other printed material that accompany instructions for usable marijuana;
8. Information from a physician, medical review officer, or a dispensary;
9. Information from reputable reference sources in print or on the Internet;
10. Other information reasonably believed to be reliable or accurate; or
11. Any combination of the items listed in this definition of good faith belief.
(x) "Positive test result for marijuana" means a result that is at or above the cutoff concentration level established by the United States Department of Transportation or the Mississippi laws regarding being under the influence, whichever is lower.
(y) (i) "Safety-sensitive position" means any position involving a safety-sensitive function pursuant to federal regulations governing drug and alcohol testing adopted by the United States Department of Transportation or any other rules, guidelines, or regulations adopted by any other federal or state agency;
(ii) "Safety-sensitive position" also means any position designated in writing by an employer as a safety-sensitive position in which a person performing the position while under the influence of marijuana may constitute a threat to health or safety, including, without limitation, a position:
1. That requires any of the following activities:
a. Carrying a firearm;
b. Performing life-threatening procedures;
c. Working with confidential information or documents pertaining to criminal investigations; or
d. Working with hazardous or flammable materials, controlled substances, food, or medicine.
2. In which a lapse of attention could result in injury, illness, or death, including, without limitation, a position that includes the operating, repairing, maintaining, or monitoring of heavy equipment, machinery, aircraft, motorized watercraft, or motor vehicles as part of the job duties.
(z) (i) "Under the influence" means symptoms of the current use of marijuana that may negatively impact the performance of the job duties or tasks or constitute a threat to health or safety;
(ii) "Under the influence" includes, without limitation:
1. Symptoms of the applicant's or employee's speech, walking, standing, physical dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, odor, or other irrational or unusual behavior that are inconsistent with the usual conduct of the applicant or employee;
2. Negligence or carelessness in operating equipment, machinery, or production or manufacturing processes;
3. Disregard for safety;
4. Involvement in an accident that results in:
a. Damage to equipment, machinery, or property;
b. Disruption of a production or manufacturing process; or
c. An injury;
5. Other symptoms causing a reasonable suspicion that the current use of marijuana may negatively impact the performance of the job duties or tasks or constitute a threat to health or safety.
(3) Protections for the medical use of marijuana. (a) A qualifying patient or designated caregiver in actual possession of a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including, without limitation, a civil penalty or disciplinary action by a business, occupational, or professional licensing board or bureau, for the medical use of marijuana in accordance with this section if the qualifying patient or designated caregiver possesses not more than two and one-half (2-1/2) ounces of usable marijuana.
(b) (i) A qualifying patient or designated caregiver is presumed to be lawfully engaged in the medical use of marijuana in accordance with this section if the qualifying patient or designated caregiver is in actual possession of a registry identification card and possesses an amount of usable marijuana that does not exceed the amount allowed under this section; and
(ii) The presumption made in subparagraph (i) of this paragraph (b) may be rebutted by evidence that conduct related to the use or possession of marijuana was not for the purpose of treating or alleviating the qualifying patient's qualifying medical condition or symptoms associated with the qualifying medical condition.
(c) A qualifying patient or designated caregiver shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including, without limitation, a civil penalty or disciplinary action by a business, occupational, or professional licensing board or bureau, for giving, or offering to give, up to two and one-half (2-1/2) ounces of usable marijuana to a qualifying patient or designated caregiver for the qualifying patient's medical use when nothing of value is transferred in return.
(d) A designated caregiver is not prohibited from receiving compensation or reimbursement of expenses from a qualifying patient for assisting a qualifying patient with the medical use of marijuana.
(e) A dispensary may:
(i) Accept marijuana seedlings, plants, or usable marijuana from:
1. Cultivation facilities;
2. Other dispensaries in Mississippi; and
3. If permissible under federal law, out-of-state dispensaries.
(ii) Transfer or sell marijuana seedlings, plants, or usable marijuana to:
1. Cultivation facilities;
2. Other dispensaries in Mississippi; and
3. If permissible under federal law, out-of-state dispensaries.
(iii) Accept marijuana seeds from any individual lawfully entitled to possess marijuana seeds, seedlings, or plants under the laws of the state in which the individual resides.
(f) (i) A school or landlord shall not refuse to enroll, refuse to lease to, or otherwise penalize an individual solely for the individual's status as a qualifying patient or designated caregiver unless doing so would put the school or landlord in violation of federal law or regulations;
(ii) For the purposes of medical care, including, without limitation, organ transplants, a qualifying patient's authorized use of marijuana in accordance with this section is considered the equivalent of the authorized use of any other medication used at the direction of a physician and does not constitute the use of an illicit substance;
(iii) 1. An employer shall not discriminate against an applicant or employee in hiring, termination, or any term or condition of employment, or otherwise penalize an applicant or employee, based upon the applicant's or employee's past or present status as a qualifying patient or designated caregiver;
2. A cause of action shall not be established against an employer based upon, and an employer is not prohibited from, any of the following actions:
a. Establishing and implementing a substance abuse or drug-free workplace policy that may include a drug-testing program that complies with state or federal law and taking action with respect to an applicant or employee under the policy; and
b. Acting on the employer's good faith belief that a qualifying patient:
A. Possessed, smoked, ingested, or otherwise engaged in the use of marijuana while on the
premises of the employer or during the hours of employment;
B. Was under the influence of marijuana while on the premises of the employer or during the hours of employment, provided that a positive test result for marijuana cannot provide the sole basis for the employer's good faith belief;
C. Acting to exclude a qualifying patient from being employed in or performing a safety-sensitive position based on the employer's good faith belief that the qualifying patient was engaged in the current use of marijuana.
3. The authorized or protected actions of an employer under this subparagraph (iii) include, without limitation:
a. Implementing, monitoring, or taking measures to assess, supervise, or control the job performance of an employee;
b. Reassigning an employee to a different position or job duties;
c. Placing an employee on paid or unpaid leave;
d. Suspending or terminating an employee;
e. Requiring an employee to successfully complete a substance abuse program before returning to work;
f. Refusing to hire an applicant; or
g. Any combination of the actions listed in this subparagraph (iii);
(iv) 1. Damages established for an employment discrimination claim based on an applicant's or employee's past or present status as a qualifying patient or designated caregiver in violation of this section shall be limited to:
a. Fifteen Thousand Dollars ($15,000.00) in the case of an employer who employs fewer than fifteen (15) employees in each of twenty (20) or more calendar weeks in the current or preceding calendar year;
b. Fifty Thousand Dollars ($50,000.00) in the case of an employer who employs more than fourteen (14) and fewer than one hundred one (101) employees in each of twenty (20) or more calendar weeks in the current or preceding calendar year;
c. One Hundred Thousand Dollars ($100,000.00) in the case of an employer who employs more than one hundred (100) and fewer than two hundred one (201) employees in each of twenty (20) or more calendar weeks in the current or preceding calendar year;
d. Two Hundred Thousand Dollars ($200,000.00) in the case of an employer who employs more than two hundred (200) and fewer than five hundred one (501) employees in each of twenty (20) or more calendar weeks in the current or preceding calendar year; and
e. Three Hundred Thousand Dollars ($300,000.00) in the case of an employer who employs more than five hundred (500) employees in each of twenty (20) or more calendar weeks in the current or preceding calendar year.
2. Liability for back pay shall not accrue from a date more than two (2) years before the filing of an action.
3. Damages under subparagraph (iii) of this paragraph (f) shall not duplicate or increase an award for damages over the statutory limit allowed by state or federal law existing on January 1, 2019, whichever is lower;
(v) An action based on employment discrimination in violation of subparagraph (iii) of this paragraph (f) must be brought within one (1) year of the occurrence of the alleged discrimination;
(vi) An individual employee, agent of the employer, or employee of the agent of the employer is not liable for any violation of subparagraph (iii) of this paragraph (f) that the employer is found to have committed;
(vii) This section does not waive the sovereign immunity of the State of Mississippi.
(g) A person otherwise entitled to custody of, or visitation or parenting time with, a minor must not be denied custody, visitation, or parenting time solely for conduct allowed under this section, nor shall there be:
(i) A finding of abuse solely for conduct allowed under this section; or
(ii) A presumption of neglect or child endangerment for conduct allowed under this section.
(h) (i) A physician shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including, without limitation, a civil penalty or disciplinary action by the Mississippi State Medical Board or by any other business, occupational, or professional licensing board or bureau, solely for providing a written certification; and
(ii) Paragraph (g)(i) of this subsection (3) does not prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or for otherwise violating the applicable physician-patient standard of care.
(i) A person shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or
privilege, including, without limitation, a civil penalty or disciplinary action by a business, occupational, or professional licensing board or bureau, for providing a qualifying patient or designated caregiver with marijuana paraphernalia for purposes of facilitating the qualifying patient's medical use of marijuana.
(j) Any marijuana, marijuana paraphernalia, licit property, or interest in licit property, that is possessed, owned, or used exclusively in connection with the medical use of marijuana as allowed under this section, or property incidental to such use, shall not be seized or forfeited.
(k) A person shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including, without limitation, a civil penalty or disciplinary action by a business, occupational, or professional licensing board or bureau, simply for being in the presence or vicinity of the medical use of marijuana as allowed under this section or for directly assisting a physically disabled qualifying patient with the medical use of marijuana.
(l) (i) A registry identification card or its equivalent that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows a visiting qualifying patient to possess or use marijuana for medical use in the jurisdiction of issuance has the same force and effect when held by a visiting qualifying patient as a registry identification card issued by the Department of Health if the same qualifying medical condition exists;
(ii) 1. A visiting qualifying patient may obtain marijuana from a dispensary upon producing evidence of his or her registry identification card or its equivalent that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States; and
2. The department must promulgate necessary rules concerning a visiting qualifying patient obtaining marijuana from a dispensary.
(m) A pharmacist shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including, without limitation, a civil penalty or disciplinary action by the Mississippi State Board of Pharmacy or by any other business, occupational, or professional licensing board or bureau, solely for performing the pharmacist's duties as a pharmacist consultant for a registered dispensary.
(4) Qualifying patient; administration and enforcement; rules. (a) (i) The Department of Health must administer and enforce the provisions of this section concerning qualifying patients, qualifying medical conditions, and designated caregivers, including, without limitation, the issuance of a registry identification card to a qualifying patient and designated caregiver;
(ii) The department must adopt rules necessary to:
1. Carry out the purposes of this section;
2. Perform its duties under this section;
(iii) Rules adopted under this subsection (4) are rules as defined in Section 25-43-1.102 of the Mississippi Administrative Procedures Law;
(iv) 1. The Department of Health must require each applicant for a designated caregiver registry identification card to apply for or authorize the Department of Health to obtain state and national criminal background checks to be conducted by the Bureau of Investigation of the Mississippi Department of Public Safety and the Federal Bureau of Investigation;
2. The criminal background checks must conform to the applicable federal standards and must include the taking of fingerprints;
3. The applicant must authorize the release of the criminal background checks to the Department of Health and shall be responsible for the payment of any fee associated with the criminal background checks; and
4. Upon completion of the criminal background checks, the Bureau of Investigation of the Mississippi Department of Public Safety and the Federal Bureau of Investigation must forward to the Department of Health all information obtained concerning the applicant.
(b) Not later than one hundred eighty (180) days after the effective date of this section, the department must adopt rules governing:
(i) The manner in which the department considers applications for and renewals of registry identification cards;
(ii) Labeling and testing standards for marijuana distributed to qualifying patients, including a warning label on all marijuana for medical use that is processed or sold for smoking that communicates the health and safety risks associated with smoking and a list of places and conditions in which smoking marijuana for medical use is illegal in the State of Mississippi; and
(iii) Any other matters necessary for the department's fair, impartial, stringent, and comprehensive administration of this section.
(c) (i) Not later than one hundred eighty (180) days after the effective date of this section, the department must adopt rules that govern the manner in which the department considers petitions from the public to add medical conditions or treatments to the list of qualifying medical conditions set forth in subsection (2) of this section;
(ii) In considering a petition, the department must add medical conditions or treatments to the list of qualifying medical conditions set forth in subsection (2) of this section if patients suffering from the medical conditions or undergoing the treatments in question would derive therapeutic benefit from the use of marijuana, taking into account the positive and negative health effects of such use;
(iii) 1. The department, after hearing, must approve or deny a petition within one hundred twenty (120) days of submission of the petition;
2. The approval or denial of a petition constitutes final agency action, subject to judicial review by the Circuit Court of the First Judicial District of Hinds County; and
(iv) The department must adopt rules within one hundred eighty (180) days of the effective date of this section that govern the manner in which a designated caregiver assists a physically disabled qualifying patient or a qualifying patient under the age of eighteen (18) with the medical use of marijuana.
(d) The department may collect fines or fees for any violation of a rule adopted under this subsection (4).
(5) Registry identification cards. (a) The Department of Health must issue registry identification cards to qualifying patients and designated caregivers who submit in accordance with the rules promulgated by the department:
(i) Written certification issued by a physician within thirty (30) days of the application;
(ii) 1. A reasonable application or renewal fee as established by the department by rule;
2. The department may establish a sliding scale of application and renewal fees based upon a qualifying patient's family income;
(iii) The name, address, and date of birth of the qualifying patient or designated caregiver, except that if the applicant is homeless, no address is required;
(iv) For a designated caregiver application:
1. The name of the physically disabled qualifying patient or qualifying patient under the age of eighteen (18) whom the applicant will be assisting; and
2. Documentation from the qualifying patient's physician indicating that the qualifying patient is physically disabled or under the age of eighteen (18);
(v) The name, address, and telephone number of the qualifying patient's physician; and
(vi) A signed statement from the qualifying patient or designated caregiver pledging not to divert marijuana to anyone who is not allowed to possess marijuana under this section.
(b) The department shall not issue a registry identification card to a qualifying patient who is under eighteen (18) years of age unless:
(i) The qualifying patient's physician has explained the potential risks and benefits of the medical use of marijuana to the qualifying patient and to a parent, guardian, or person having legal custody of the qualifying patient;
(ii) A parent, guardian, or person having legal custody:
1. Consents in writing to:
a. Allow the qualifying patient's medical use of marijuana;
b. Assist the qualifying patient in the medical use of marijuana; and
c. Control the acquisition of the marijuana, the dosage, and the frequency of the medical use of marijuana by the qualifying patient.
2. Registers as a designated caregiver under this section.
(c) (i) The department must review the information contained in an application or renewal submitted under this subsection (5) within fourteen (14) days of receiving it.
(ii) The department must deny an application or renewal if the:
1. Applicant previously had a registry identification card revoked; or
2. Department determines the written certification was not made in the context of a physician patient relationship or that the written certification was fraudulently obtained.
(iii) Rejection of an application or renewal is considered a final agency action, subject to judicial review by the Circuit Court of the First Judicial District of Hinds County.
(d) (i) A registry identification card expires one (1) year after the date of issuance unless the physician states in the written certification that he or she believes the qualifying patient would benefit from the medical use of marijuana only until a specified earlier date; and
(ii) If the written certification specifies an earlier date, the registry identification card shall expire on that date.
(e) (i) An application or renewal and supporting information submitted by a qualifying patient or designated caregiver under this section, including, without limitation, information regarding the qualifying patient's physician, are considered confidential records that are exempt from the Mississippi Public Records Act of 1983, Section 25-61-1 et seq;
(ii) 1. a. The department must maintain a confidential list of the persons to whom the department has issued registry identification cards;
b. A. The department may share information from the confidential list under this subsection (5) with the Alcoholic Beverage Control Division of the Mississippi Department of Revenue and the Mississippi Medical Marijuana Commission as necessary;
B. Confidential information shared with the division or commission must remain confidential while in the division's or commission's possession;
2. Individual names and other identifying information on the confidential list are confidential, exempt from the Mississippi Public Records Act of 1983, Section 25-61-1 et seq., and not subject to disclosure except to authorized employees of the department, division, and commission as necessary to perform official duties of the department, division, and commission;
(iii) The department must verify to law enforcement personnel whether a registry identification card is valid without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card; and
(iv) A person, including, without limitation, an employee or official of the department, division, commission, or another state agency or local government, who knowingly breaches the confidentiality of information obtained under this section commits a misdemeanor.
(g) (i) Except as provided in subsection (3) of this section, a cardholder who transfers marijuana to a person who is not a qualifying patient or designated caregiver under this section must have his or her registry identification card revoked and shall be subject to any other penalties established by law;
(ii) The department may revoke the registry identification card of any cardholder who knowingly violates any provision of this section, and the cardholder is subject to any other penalties established by law;
(iii) This subsection (5) does not prohibit:
1. A qualifying patient or designated caregiver from giving up to two and one-half (2-1/2) ounces of usable marijuana to another qualifying patient or designated caregiver as set forth in subsection (3) of this section; or
2. The transfer of marijuana seedlings, plants, or usable marijuana as set forth in subsection (3) of this section.
(h) The department, division, and commission must submit to the Legislature an annual report that does not disclose any identifying information about cardholders or physicians but contains at a minimum:
(i) The number of applications and renewals filed for registry identification cards;
(ii) The nature of the qualifying medical conditions of the qualifying patients;
(iii) The number of registry identification cards revoked and the number of licenses to operate a dispensary and licenses to operate a cultivation facility revoked;
(iv) The number of physicians providing written certifications for qualifying patients;
(v) The number of licensed dispensaries;
(vi) The number of licensed cultivation facilities;
(vii) The number of dispensary agents; and
(viii) The number of cultivation facility agents.
(6) Scope. (a) This section does not permit a person to:
(i) Undertake any task under the influence of marijuana when doing so would constitute negligence or professional malpractice;
(ii) Possess, smoke, or otherwise engage in the medical use of marijuana:
1. On a school bus;
2. On the grounds of a daycare center, preschool, primary or secondary school, college, or university;
3. At a drug or alcohol treatment facility;
4. At a community or recreation center;
5. In a correctional facility;
6. On any form of public transportation;
7. In a public place;
8. On any property that is under control of the Mississippi National Guard or the United States military;
(iii) Operate, navigate, or be in actual physical control of a motor vehicle, aircraft, motorized watercraft, or any other vehicle drawn by power other than muscle power while under the influence of marijuana;
(iv) Smoke marijuana:
1. In a place where the smoking of tobacco is prohibited by law;
2. In the presence of a person who is under fourteen (14) years of age;
3. Inside a motor vehicle, aircraft, motorized watercraft, or any vehicle drawn by power other than muscle power;
4. Knowingly in the presence of a pregnant woman;
5. In a place where the smoking of marijuana for medical use is likely to cause another person not authorized to use marijuana to be under the influence of marijuana; or
(vi) Smoke marijuana for medical use if the person is under twenty-one (21) years of age.
(b) This section does not require:
(i) A government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana unless federal law requires reimbursement;
(ii) An employer to accommodate the ingestion of marijuana in a workplace or an employee working while under the influence of marijuana;
(iii) An individual or establishment in lawful possession of property to allow a guest, client, customer, or other visitor to use marijuana on or in that property;
(iv) An individual or establishment in lawful possession of property to admit a guest, client, customer, or other visitor who is inebriated as a result of his or her medical used of marijuana;
(v) A landlord to permit a qualifying patient to smoke marijuana on or in leased property, except that a landlord may not prohibit the medical use of marijuana through means other than smoking on leased property by a qualifying patient; or
(vi) A public school to permit a qualifying patient who is a student to be present on school grounds, to attend a school event, or to participate in extracurricular activities in violation of the public school's student discipline policies when a school office has a good faith belief that the behavior of the qualifying patient is impaired.
(7) Affirmative defense and dismissal for medical use of marijuana. (a) Except as provided in subsection (6) of this section and this subsection (7), an individual may assert a medical purpose for using marijuana as an affirmative defense to prosecution for an offense involving marijuana intended for the individual's medical use; this defense is presumed valid and the prosecution must be dismissed where the evidence demonstrates that the individual is:
(i) A qualifying patient or a designated caregiver; and
(ii) In compliance with the conditions set forth in subsection (3) of this section.
(b) The defense and motion to dismiss shall not prevail if either of the following are proven:
(i) The individual's registry identification card had been revoked at the time of the alleged offense; or
(ii) The purposes for the possession of marijuana were not solely for medical use.
(c) An individual is not required to be in actual physical possession of a registry identification card to raise the affirmative defense set forth in this subsection (7).
(d) Except as provided in subsection (6) of this section, if an individual demonstrates a medical use of marijuana authorized under this section, the individual shall not be subject to the following:
(i) Disciplinary action by a business, occupational, or professional licensing board or bureau; or
(ii) Forfeiture of any interest in or right to nonmarijuana, licit property.
(8) Licensing of dispensaries and cultivation facilities. (a) (i) Dispensaries and cultivation facilities must be licensed by the Mississippi Medical Marijuana Commission;
(ii) The commission must administer and regulate the licensing of dispensaries and cultivation facilities, including the issuance of a:
1. License to operate a dispensary;
2. License to operate a cultivation facility; and
(iii) The Alcoholic Beverage Control Division must administer and enforce the provisions of this section concerning dispensaries and cultivation facilities.
(b) (i) The commission and division must each adopt rules necessary to:
1. Carry out the purposes of this section; and
2. Perform its duties under this section.
(ii) Rules adopted under this subsection (8) are rules as defined in the Mississippi Administrative Procedures Law, Section 25-43-1.101 et seq.
(c) In order to be associated with a dispensary or cultivation facility, the following individuals must be current residents of Mississippi who have resided in the state for the previous seven (7) consecutive years:
(i) The individuals submitting an application to license a dispensary or cultivation facility; and
(ii) Sixty percent (60%) of the individuals owning an interest in a dispensary or cultivation facility.
(d) Not later than one hundred eighty (180) days after the effective date of this section, the commission must adopt rules governing:
(i) The manner in which the commission considers applications for and renewals of licenses for dispensaries and cultivation facilities;
(ii) The form and content of registration and renewal applications for dispensaries and cultivation facilities; and
(iii) Any other matters necessary for the commission's fair, impartial, stringent, and comprehensive administration of its duties under this section.
(e) Not later than one hundred eighty (180) days after the effective date of this section, the division must adopt rules governing:
(i) Oversight requirements for dispensaries and cultivation facilities;
(ii) Recordkeeping requirements for dispensaries and cultivation facilities;
(iii) Security requirements for dispensaries and cultivation facilities;
(iv) Personnel requirements for dispensaries and cultivation facilities;
(v) The manufacture, processing, packaging, labeling, and dispensing of usable marijuana to qualifying patients and designated caregivers, including, without limitation;
1. Before sale, food or drink that has been combined with usable marijuana shall not exceed ten (10) milligrams of active tetrahydrocannabinol per portion and must be physically demarked;
2. If portions cannot be physically determined, the entirety of the food or drink that has been combined with usable marijuana shall not contain more than ten (10) milligrams of active tetrahydrocannabinol;
(vi) Procedures for suspending or terminating the licenses of dispensaries and cultivation facilities that violate the provisions of this section or the rules adopted under this section, procedures for appealing penalties, and a schedule of penalties;
(vii) Procedures for inspections and investigations of dispensaries and cultivation facilities;
(viii) Advertising restrictions for dispensaries and cultivation facilities, including, without limitation, the advertising, marketing, packaging, and promotion of dispensaries and cultivation facilities with the purpose to avoid making the product of a dispensary or a cultivation facility appealing to children, including, without limitation:
1. Artwork;
2. Building signage;
3. Product design, including, without limitation, shapes and flavors;
4. Child-proof packaging that cannot be opened by a child or that prevents ready access to toxic or harmful amount of the product, and that meets the testing requirements in accordance with the method described in 16 C.F.R. Section 1700.20, as existing on January 1, 2019;
5. Indoor displays that can be seen from outside the dispensary or cultivation facility; and
6. Other forms of marketing related to medical marijuana;
(ix) Procedures for the disposal or other use of marijuana not dispensed to a qualifying patient; and
(x) Any other matters necessary for the division's fair, impartial, stringent, and comprehensive administration of its duties under this section.
(f) (i) Not later than one hundred eighty (180) days after the effective date of this section, the commission must adopt rules establishing license application and license renewal fees for dispensary and cultivation facility licenses;
(ii) 1. The initial dispensary application fee must not exceed Seven Thousand Five Hundred Dollars ($7,500.00).
2. The initial cultivation facility application fee must not exceed Fifteen Thousand Dollars ($15,000.00).
3. A license that is initially issued between January 1 and July 1 may have the licensing fees up to fifty percent (50%) prorated and refunded as determined by the commission.
(g) (i) Not later than July 1, 2020, the commission must begin accepting applications for licenses to operate a dispensary and cultivation facility;
(ii) The application must include, at a minimum, the following:
1. The application fee;
2. The legal name of the dispensary or cultivation facility;
3. The physical address of the:
a. Dispensary, the location of which may not be within one thousand five hundred (1,500) feet of a public or private school, church, or daycare center that was in existence before the date of the dispensary application, which shall be calculated from the primary entrance of the dispensary to the nearest property boundary of a public or private school, church, or daycare center; or
b. Cultivation facility, the location of which may not be within three thousand (3,000) feet of a public or private school, church, or daycare center that was in existence before the date of the cultivation facility application, which shall be calculated from the primary entrance of the cultivation facility to the nearest property boundary of a public or private school, church, or daycare center;
4. The name, address, and date of birth of each dispensary agent or cultivation facility agent; and
5. If the city, town, or county in which the dispensary or cultivation facility would be located has enacted zoning restrictions, a sworn statement certifying that the dispensary or cultivation facility will operate in compliance with the restrictions;
(iii) A person is not eligible to be an owner, board member, or officer of the dispensary or cultivation facility if the person:
1. Has been convicted of an excluded felony offense;
2. Has previously been an owner of a dispensary or cultivation facility that has had its license revoked; and
3. Is under twenty-one (21) years of age;
(iv) 1. The commission may issue a temporary license to a another natural person in conjunction with a dispensary or a cultivation facility when the natural person whose name is on the license for the dispensary or cultivation facility ceases to be in actual control of the dispensary or cultivation facility.
2. The commission must adopt rules as necessary to provide temporary licenses.
(h) The commission must issue at least twenty (20) but no more than forty (40) dispensary licenses.
(i) There must be no more than four (4) dispensaries in any one (1) county.
(j) The commission must issue at least four (4) but no more than eight (8) cultivation facility licenses.
(k) (i) The commission must conduct criminal background checks in order to carry out this subsection (8);
(ii) The commission must require each applicant for a dispensary license or cultivation facility license to apply for or authorize the commission to obtain state and national criminal background checks to be conducted by the Bureau of Investigation of the Mississippi Department of Public Safety and the Federal Bureau of Investigation;
(iii) The criminal background checks must conform to the applicable federal standards and must include the taking of fingerprints;
(iv) The applicant must authorize the release of the criminal background checks to the commission and is responsible for the payment of all fees associated with the criminal background checks; and
(v) Upon completion of the criminal background checks, the Department of Public Safety must forward to the commission all information obtained concerning the applicant.
(l) A single individual is not allowed to own an interest in more than one (1) cultivation facility and one (1) dispensary.
(m) (i) 1. A dispensary licensed under this subsection (8) may acquire, possess, manufacture, process, prepare, deliver, transfer, transport, supply, and dispense marijuana, marijuana paraphernalia, and related supplies and educational materials to a qualifying patient or designated caregiver, but shall not supply, possess, manufacture, deliver, transfer, or sell marijuana paraphernalia that requires the combustion of marijuana to be properly utilized, including pipes, water pipers, bongs, chillums, rolling papers, and roach clips;
2. A dispensary licensed under this subsection (8) must:
a. Make marijuana vaporizers available for sale to qualifying patients; and
b. Provide educational materials about methods of ingestion of medical marijuana to qualifying patients and designated caregivers, including, without limitation:
A. Warnings on the potential health risks of smoking or combusting marijuana; and
B. Information on potential health benefits of vaporizing marijuana compared to smoking or combusting.
(ii) 1. A dispensary may receive compensation for providing the goods and services allowed by this section.
2. A dispensary may contract with a transporter, distributer, or processer to the extent of the license of the transporter, one (1) distributer, or processer.
(iii) 1. A dispensary may grow or possess fifty (50) mature marijuana plants at any one time, plus seedlings and all usable marijuana derived from those plants or predecessor plants.
2. A dispensary may contract with a cultivation facility to cultivate one or more mature marijuana plants that the dispensary is permitted to grow.
(iv) 1. a. A cultivation facility may cultivate and possess usable marijuana in an amount reasonably necessary to meet the demand for and needs of qualifying patients as determined by the commission with the assistance of the Department of Health.
b. However, a cultivation facility shall not sell marijuana in any form except to a dispensary or other cultivation facility.
2. A cultivation facility may also possess marijuana seeds.
3. The commission, with the assistance of the Department of Health, must promulgate rules determining the amount of marijuana reasonably necessary under this subparagraph (iv).
4. a. A cultivation facility may receive compensation for providing the goods and services allowed by this subparagraph (iv).
b. A cultivation facility may contract with a transporter, distributer, or processer to the extent of the license of the transporter, distributer or processer.
(n) (i) A dispensary license and cultivation facility license shall expire on June 30 of each calendar year and are renewable on or before June 30 of each calendar year for the fiscal year beginning July 1; and
(ii) The commission must issue a renewal dispensary license or a renewal cultivation facility license within ten (10) days to any entity that complies with the requirements contained in this section, including, without limitation, the payment of a renewal fee.
(o) The commission may charge a reasonable fee as established by rule for the issuance of a renewal license.
(p) The commission and the division may collect fines or fees for any violation of a rule adopted under this subsection (8).
(q) (i) A license for a dispensary or cultivation facility must only be issued to a natural person; and
(ii) A license issued for a dispensary or cultivation facility is transferable only to a natural person upon approval of the commission.
(r) Data or records submitted to the division or commission under rules adopted under this section may be shared with the Department of Health.
(s) (i) A dispensary must appoint a pharmacist consultant who is a pharmacist licensed with the Mississippi State Board of Pharmacy;
(ii) A pharmacist consultant must:
1. Register as a dispensary agent under this section and follow all procedures;
2. Develop and provide training to other dispensary agents at least one time every twelve (12) months from the initial date of the opening of the dispensary on the following subjects:
a. Guidelines for providing information to qualifying patients related to risks, benefits, and side effects associated with medical marijuana;
b. Recognizing the signs and symptoms of substance abuse; and
c. Guidelines for refusing to provide medical marijuana to an individual who appears to be impaired or abusing medical marijuana;
3. Assist in the development and implementation of review and improvement processes for patient education and support provided by the dispensary;
4. Provide oversight for the development and dissemination of:
a. Education materials for qualifying patients and designated caregivers that include:
A. Information about possible side effects and contraindications of medical marijuana;
B. Guidelines for notifying the physician who provided the written certification for medical marijuana if side effects or contraindications occur;
C. A description of the potential effects of differing strengths of medical marijuana strains and products;
D. Information about potential drug-to-drug interactions, including interactions with alcohol, prescription drugs, nonprescription drugs, and supplements;
E. Techniques for the use of medical marijuana and marijuana paraphernalia; and
F. Information about different methods, forms, and routes of medical marijuana administration;
b. Systems for documentation by a qualifying patient or designated caregiver of the symptoms of a qualifying patient that includes a logbook, rating scale for pain and symptoms, and guidelines for a patient's self-assessment; and
c. Policies and procedures for refusing to provide medical marijuana to an individual who appears to be impaired or abusing medical marijuana;
5. Be accessible by the dispensary or dispensary agent through:
a. Telephonic means at all times during operating hours; and
b. Telephone or videoconference for a patient consultation during operating hours.
(t) (i) A cultivation facility must meet the physical security controls set forth in 21 C.F.R. Sections 1301.72 through 1301.74, as existing on January 1, 2019;
(ii) The Alcoholic Beverage Control Division must adopt rules to implement the collection of fines and fees under this section;
(iii) All cultivation of marijuana must occur within a building, greenhouse, or other structure that:
1. Has a complete roof enclosure supported by connecting walls that are constructed of solid material extending from the ground to the roof;
2. Is secure against unauthorized entry;
3. Has a foundation, slab, or equivalent base to which the floor is securely attached;
4. Meets performance standards ensuring that cultivation and processing activities cannot be and are not perceptible from the structure in terms of:
a. Common visual observation;
b. Odors, smell, fragrances, or other olfactory stimulus;
c. Light pollution, glare, or brightness;
d. Adequate ventilation to prevent mold; and
e. Noise;
5. Provides complete visual screening; and
6. Is accessible only through one or more lockable doors;
(iv) Current detailed plans and elevation drawings of all operational areas involved with the production of medical marijuana must be maintained on the premises of the cultivation facility, including:
1. All storage areas, ventilation systems, and equipment used for production;
2. All entrances and exits to the cultivation facility;
3. All windows, skylights, and retractable mechanisms built into the roof;
4. The location of all required security cameras;
5. The location of all alarm inputs, detectors, and sirens;
6. All video and alarm system surveillance areas;
7. All production areas labeled according to the specific activity occurring within the area;
8. All restricted and limited access areas identified; and
9. All nonproduction areas labeled according to purpose;
(v) Access to areas where marijuana is grown, harvested, processed and stored is limited to authorized personnel and that is:
1. Designated by clearly marked signage; and
2. Locked and accessible only by authorized personnel on a current roster of authorized personnel;
(vi) 1. Written policies regarding any nonregistered agent who may visit the premises and a log of all visitors to the premises must be developed and maintained;
2. The log shall consist of the visitor's name, purpose of visit, time of arrival, and time of departure;
3. Visitors to a cultivation facility must be:
a. Issued a visitor identification tag containing the visitor's name that must be worn for the duration of the visit on the premises; and
b. Escorted by a cultivation facility agent at all times while present on the premises;
4. a. However, contractors conducting repairs, maintenance, or other specific duties may be escorted to their work site and left unaccompanied while completing a job; and
b. Cultivation facility agents must ensure that the contractor and area under repair are under video surveillance for the duration of the time spent on the premises by the contractor;
(vii) 1. An alarm system is equipped that upon attempted unauthorized entry, transmits a signal directly to a central protection company for a local or state police agency and a designated cultivation facility agent;
2. The alarm system must:
a. Provide coverage for all points of ingress and egress to the cultivation facility, including, without limitation, doorways, windows, loading bays, skylights, and retractable roof mechanisms;
b. Provide coverage of any room with an exterior wall, any room containing a safe, and any room used to grow or store medical marijuana;
c. Be equipped with a panic drive that upon activation will not only sound any audible alarm components but will also notify law enforcement;
d. Have duress and hold up features to enable a cultivation facility agent to activate a silent alarm notifying law enforcement of an emergency;
e. Be equipped with failure notification systems to notify cultivation facilities and law enforcement of any failure in the alarm system; and
f. Have the ability to remain operational during a power outage;
(viii) A cultivation facility must maintain compliance with applicable city or county building or structure rules, regulations, or ordinances and any other applicable state laws or rules regarding buildings or structures.
(9) Registration and certification of cultivation facility agents and dispensary agents. (a) (i) Cultivation facility agents and dispensary agents must register with the Alcoholic Beverage Control Division;
(ii) The division must administer and enforce the provisions of this section concerning cultivation facility agents and dispensary agents, including, without limitation, the issuance of a:
1. Registry identification card to a dispensary agent; and
2. Registry identification card to a cultivation facility agent.
(b) (i) The division must adopt rules necessary to:
1. Carry out the purposes of this section;
2. Perform its duties under this section; and
(ii) Rules adopted under this subsection (9) are rules as defined in the Mississippi Administrative Procedures Law, Section 25-43-1.101 et seq.
(c) Not later than one hundred eighty (180) days after the effective date of this section, the division must adopt rules governing:
(i) The manner in which the division considers applications for and renewals of registry identification cards for dispensary agents and cultivation facility agents;
(ii) The form and content of registration and renewal applications for dispensary agents and cultivation facility agents;
(iii) Procedures for suspending or terminating the registration of dispensary agents and cultivation facility agents who violate the provisions of this section or the rules adopted under this section, procedures for appealing penalties, and a schedule of penalties; and
(iv) Any other matters necessary for the division's fair, impartial, stringent, and comprehensive administration of its duties under this section.
(d) (i) The division must conduct criminal background checks in order to carry out the provisions of subsection (9);
(ii) The division must require each applicant for a dispensary agent license or cultivation facility agent license to apply for or authorize the division to obtain state and national criminal background checks to be conducted by the Bureau of Investigation of the Mississippi Department of Public Safety and the Federal Bureau of Investigation;
(iii) The criminal background checks must conform to the applicable federal standards and must include the taking of fingerprints;
(iv) The applicant must authorize the release of the criminal background checks to the division and is responsible for the payment of any fee associated with the criminal background checks; and
(v) Upon completion of the criminal background checks, the Mississippi Department of Public Safety must forward to the division all information obtained concerning the applicant.
(e) Except as provided herein, the division must issue each dispensary agent and cultivation facility agent a registry identification card within ten (10) days of receipt of:
(i) The person's name, address, and date of birth; and
(ii) A reasonable fee in an amount established by rule of the division.
(f) (i) The division shall not issue a registry identification card to a dispensary agent or cultivation facility agent who has been convicted of an excluded felony offense;
(ii) The division must conduct a criminal background check as described in paragraph (d) of this subsection (9) of each dispensary agent or cultivation facility agent in order to carry out this provision; and
(iii) The division must notify the dispensary or cultivation facility in writing of the reason for denying the registry identification card.
(g) (i) A registry identification card for a dispensary agent or cultivation facility agent expires on June 30 of each calendar year and is renewable on or before June 30 of each calendar year for the fiscal year beginning July 1; and
(ii) A registry identification card of a dispensary agent or cultivation facility agent expires upon notification to the division by a dispensary or cultivation facility that the person ceases to work at the dispensary or cultivation facility.
(h) The division may charge a reasonable fee as established by rule for the issuance of a new, renewal or replacement registry identification card.
(i) (i) The division may revoke the registry identification card of a dispensary agent or cultivation facility agent who knowingly violates any provision of this section, and the cardholder is subject to any other penalties established by law for the violation; and
(ii) The division may revoke or suspend the dispensary license or cultivation facility license of a dispensary or cultivation facility that the division determines knowingly aided or facilitated a violation of any provision of this section, and the licenseholder is subject to any other penalties established by law for the violation.
(j) The division may collect fines or fees for any violation of a rule adopted under this section.
(10) Dispensary and cultivation facility inspections and requirements. (a) Dispensaries and cultivation facilities are highly regulated by the state, and a dispensary and cultivation facility is therefore subject to reasonable inspection by the Alcoholic Beverage Control Division;
(b) (i) This subsection (10) governs the operations of dispensaries and cultivation facilities;
(ii) A dispensary and a cultivation facility must be an entity incorporated in the State of Mississippi;
(iii) A dispensary and cultivation facility must implement appropriate security measures to deter and prevent unauthorized entrance into areas containing marijuana and the theft of marijuana;
(iv) A dispensary and cultivation facility must have procedures in place to ensure accurate recordkeeping;
(v) Each dispensary must keep the following records, for at least three (3) years:
1. Records of the disposal of marijuana that is not distributed by the dispensary to qualifying patients; and
2. A record of each transaction, including the amount of marijuana dispensed, the amount of compensation, and the registry identification number of the qualifying patient or designated caregiver;
(vi) Each dispensary and cultivation facility must:
1. Conduct an initial comprehensive inventory of all marijuana, including, without limitation, usable marijuana available for dispensing, mature marijuana plants, and seedlings at each authorized location on the date the dispensary first dispenses usable marijuana or the cultivation facility first cultivates, prepares, manufactures, processes, or packages usable marijuana; and
2. Conduct a biannual comprehensive inventory of all marijuana, including, without limitation, usable marijuana available for dispensing, mature marijuana plants, and seedlings at each authorized location;
(vii) All cultivation of marijuana must take place in an enclosed, locked facility;
(viii) 1. A qualifying patient or designated caregiver acting on behalf of a qualifying patient shall not be dispensed more than a total of two and one-half (2-1/2) ounces of usable marijuana during a fourteen-day period;
2. A dispensary or a dispensary agent may not dispense more than a total of two and one-half (2-1/2) ounces of usable marijuana to either a qualifying patient or designated caregiver acting on behalf of a qualifying patient during a fourteen-day period;
3. Each time a dispensary agent dispenses usable marijuana to a qualifying patient or designated caregiver, he or she must verify that the dispensing of usable marijuana would not cause the qualifying patient or designated caregiver to receive more usable marijuana than is permitted in a fourteen-day period;
4. Each time usable marijuana is dispensed, the dispensary agent must:
a. Record the date the usable marijuana was dispensed and the amount dispensed; and
b. Notify the Department of Health in the manner required by the department;
5. The department must maintain a database that enables a dispensary to verify that dispensing usable marijuana to a qualifying patient or designated caregiver will not cause the qualifying patient or designated caregiver to exceed the amount allowed by law;
6. All records must be kept according to the registry identification number of the qualifying patient or designated caregiver;
7. It is the specific intent of this section that no qualifying patient or designated caregiver acting on behalf of a qualifying patient be dispensed more than a total of two and one-half (2-1/2) ounces of usable marijuana during a fourteen-day period whether the usable marijuana is dispensed from one or any combination of dispensaries;
(ix) The dispensary records with patient information shall be treated as confidential records that are exempt from the Mississippi Public Records Act of 1983, Section 25-61-1 et seq.
(11) Immunity for dispensaries and cultivation facilities. (a) A dispensary, cultivation facility, transporter, distributer, or processor is not subject to the following:
(i) Prosecution for the acquisition, possession, cultivation, processing, preparation, manufacture, delivery, transfer, transport, sale, supply, or dispensing of marijuana and related supplies in accordance with the provisions of this section and any rule adopted under this section;
(ii) Inspection, except under subsection (10) of this section or upon a search warrant issued by a court or judicial officer;
(iii) Seizure of marijuana, except upon any order issued by a court or judicial officer and with due process of law; or
(iv) Imposition of a penalty or denial of a right or privilege, including, without limitation, imposition of a civil penalty or disciplinary action by a business, occupational, or professional licensing board or entity, solely for acting in accordance with this section.
(b) (i) A dispensary agent, cultivation facility agent, transporter agent, distributer agent, or processor agent shall not be subject to arrest, prosecution, search, seizure, or penalty in any manner or denied any right or privilege, including, without limitation, civil penalty or disciplinary action by a business, occupational, or professional licensing board or entity, solely for working for or with a dispensary, cultivation facility, transporter, distributer, or processor to engage in acts permitted by this section;
(ii) 1. A dispensary agent, cultivation facility agent, or processor agent may possess and manufacture marijuana at the dispensary, cultivation facility location, or processor location or locations for which the dispensary agent, cultivation facility agent, or processor agent is registered or when transferring marijuana under this section;
2. a. A dispensary agent who is a volunteer may possess and manufacture marijuana at a dispensary location;
b. A dispensary agent who is a volunteer may not dispense or transport marijuana;
(iii) A cultivation facility and processor must label the marijuana that is moved between the cultivation facility or processor and a dispensary, other cultivation facility, or processor with a trip ticket that identifies the cultivation facility by identification number, the time, date, origin, and destination of the marijuana being transported, and the amount and form of marijuana that is being transported; and
(iv) A transporter agent or distributer agent may possess marijuana at any location while the transporter agent or distributor agent is transferring marijuana from a dispensary, cultivation facility, or processer to another dispensary, cultivation facility, or processor.
(c) Importation of seeds, cuttings, clones, or plants by a dispensary or cultivation facility shall not be prosecuted in the courts of this state.
(12) Prohibitions for dispensaries. (a) A dispensary may not dispense, deliver, or otherwise transfer marijuana to a person other than a qualifying patient or designated caregiver; or to a transporter, distributer, or processer to operate to the extent of the license of the transporter, distributer, or processer.
(b) (i) Except as provided in subsection (3) of this section, the Alcoholic Beverage Control Division must immediately revoke the registry identification card of a dispensary agent who has dispensed, delivered, or otherwise transferred marijuana to a person other than a qualifying patient or designated caregiver, and that dispensary agent must be disqualified from serving as a dispensary agent; and
(ii) A dispensary employing a dispensary agent whose registry identification card is revoked under subparagraph (i) of this paragraph (b) is not subject to penalties, including, without limitation, the revocation of its license, for the actions of a dispensary agent unless the dispensary knowingly aided or facilitated the violation.
(13) Prohibitions for cultivation facilities. (a) A cultivation facility may sell marijuana plants, seeds, and usable marijuana only to a dispensary, other cultivation facility, or processor; and
(b) A cultivation facility may employ a transporter or a distributor to transfer marijuana from the cultivation facility to a dispensary, other cultivation facility, or processer.
(14) Local regulation. (a) This section does not prohibit a municipality or county of this state from enacting reasonable zoning regulations applicable to dispensaries or cultivation facilities, if those zoning regulations are the same as those for a licensed retail pharmacy; and
(b) This subsection (14) does not allow a municipality or county to prohibit the operation of any dispensaries or cultivation facilities in the municipality or county.
(15) Prohibited conduct for physicians. A physician must not:
(a) Accept, solicit, or offer any form of pecuniary remuneration from or to a dispensary or cultivation facility; however, this does not prohibit a physician who is also a qualifying patient from purchasing usable marijuana from a dispensary;
(b) Offer a discount or other thing of value to a qualifying patient who uses or agrees to use a particular dispensary;
(c) Examine a patient for purposes of diagnosing a qualifying medical condition at a dispensary; or
(d) Hold an economic interest in a dispensary or cultivation facility if the physician certifies the qualifying medical condition of a patient for medical use of marijuana.
(16) Failure to adopt rules or issue registry identification cards or licenses. If the Department of Health, Alcoholic Beverage Control Division, or Medical Marijuana Commission fails to adopt rules to implement this section within the time prescribed or fails to issue the minimum number of dispensary licenses or cultivation facility licenses, any person who would be a qualifying patient under this section may commence a mandamus action in the Circuit Court of the First Judicial District of Hinds County, to compel the department, division, or commission to perform the actions mandated under the provisions of this section.
(17) Taxation and distribution of proceeds. (a) (i) The sale of usable marijuana is subject to all state and local sales taxes at the same rate as other tangible personal property; and
(ii) The sale of usable marijuana is also subject to the Mississippi Medical Marijuana Special Privilege Tax Act of 2019, or its successor.
(b) The state sales and special privilege tax revenues received by the state from the sale of usable marijuana under this section must be distributed as follows:
(i) All monies received as part of this section are designated as special revenue and the funds collected must be deposited in the State Treasury and credited to the Mississippi Medical Marijuana Implementation and Operations Fund;
(ii) All monies received as part of this section before the effective date of this section must be immediately transferred to the Mississippi Medical Marijuana Implementation and Operations Fund upon the effective date of this section;
(iii) In order for the Executive Director of the Department of Finance and Administration to determine the expenses that state agencies incurred due to the passage of this section, the following state entities must submit a report to the Department of Finance and Administration no later than May 1 of each year of the projected expenses for the next fiscal year, including, without limitation, expenses as set out in subparagraph (iv) of this paragraph (b):
1. The Alcoholic Beverage Control Division of the Department of Revenue;
2. The Department of Health;
3. The Medical Marijuana Commission; and
4. Any other state agency that incurs implementation, administration, or enforcement expenses related to this section;
(iv) 1. From time to time, the Executive Director of the Department of Finance and Administration must transfer on his or her books and those of the State Treasurer and the State Auditor the amounts as set out in subparagraph (iii) of this paragraph (b) or so much as is available in proportion to the amount identified by each agency in subparagraph (iii) of this paragraph (b) from the Mississippi Medical Marijuana Implementation and Operations Fund to the credit of the Alcoholic Beverage Control Division of the Department of Revenue, the Department of Health, the Medical Marijuana Commission Fund, and any other fund necessary to the implementation, administration, or enforcement of this section to pay for or reimburse personal services, operating expenses, professional fees, equipment, monitoring, auditing, and other miscellaneous expenses of this section.
2. At the end of each fiscal year, any unobligated balances of the amounts transferred must be deducted from the amount transferred in the next fiscal year as authorized in item 1 of this subparagraph (iv).
3. Any unanticipated expenses or expenses over the amount transferred may be added from time to time to the transfer amount authorized in item 1 of this subparagraph (iv).
4. The Department of Finance and Administration must report at the end of the fiscal year to the Joint Legislative Budget Committee if during a legislative session, the following information:
a. The total annual amount received as a result of this section;
b. The amount transferred to each agency; and
c. Copies of the report submitted to the Department of Finance and Administration identifying estimated expenses as set out in subparagraph (iii) of this paragraph (b).
(c) After the transfer described in paragraph (b) of this subsection (17), the amounts remaining in the Mississippi Medical Marijuana Implementation and Operations Fund must be distributed one hundred percent (100%) to the General Fund.
(d) An entity receiving a grant of state sales tax revenue under paragraph (b) of this subsection (17) may make one or more successive grant applications for the same project or projects.
(18) Costs of administration and regulation. (a) The following funds must be used by the Department of Health to perform its duties under this section:
(i) State sales tax revenues received under subsection (17) of this section;
(ii) 1. The revenue generated from fees, penalties, and other assessments of the department provided for by this section, including, without limitation:
a. Registry identification card application and renewal fees; and
b. Fees for replacement registry identification cards.
2. Revenue generated from fees, penalties, and other assessments under this section must be used solely for the performance of the department's duties under this section and must be used for no other purpose;
(iii) Private donations, if such funds are available; and
(iv) Other appropriations by the Legislature.
(b) The following funds must be used by the Alcoholic Beverage Control Division to perform its duties under this section:
(i) State sales tax revenues received under subsection (17) of this section;
(ii) 1. The revenue generated from fees, penalties, and other assessments of the division provided for by this section; and
2. Revenue generated from fees, penalties, and other assessments of the division under this section must be used solely for the performance of the division's duties under this section and must be used for no other purpose;
(iii) Private donations, if such funds are available; and
(iv) Other appropriations by the Legislature.
(c) The following funds must be used by the Medical Marijuana Commission to perform its duties under this section:
(i) State sales tax revenues received under subsection (17) of this section;
(ii) The revenue generated from fees, penalties, and other assessments of the commission provided for by this section, including, without limitation, dispensary and cultivation facility application fees, licensing fees, and renewal fees;
(iii) Private donations, if such funds are available; and
(iv) Other appropriations by the Legislature.
(19) Medical Marijuana Commission; creation. (a) (i) There is created a Medical Marijuana Commission within the Department of Finance and Administration to determine the qualifications for receiving a license to operate a dispensary or a license to operate a cultivation facility and the awarding of licenses;
(ii) Each member of the commission shall serve a term of four (4) years;
(iii) The commission shall consist of five (5) members as follows:
1. Two (2) members appointed by the President Pro Tempore of the Senate;
2. Two (2) members appointed by the Speaker of the House of Representatives; and
3. One (1) member appointed by the Governor;
(iv) Vacancies on the commission shall be filled in the manner of the original appointment;
(v) The commission must select one (1) of its members as chair; and
(vi) An affirmative vote of a majority of a quorum present shall be necessary to transact business.
(b) (i) One (1) of the initial members appointed by the President Pro Tempore of the Senate shall serve a term of two (2) years and one (1) of the initial members appointed by the President Pro Tempore of the Senate shall serve a term of four (4) years; the initial members appointed by the President Pro Tempore of the Senate shall draw lots to determine which member shall serve a term of two (2) years;
(ii) One (1) of the initial members appointed by the Speaker of the House of Representatives shall serve a term of two (2) years and one (1) of the initial members appointed by the Speaker of the House of Representatives shall serve a term of four (4) years; the initial members appointed by the Speaker of the House of Representatives shall draw lots to determine which member shall serve a term of two (2) years;
(iii) The initial member appointed by the Governor shall serve a term of four (4) years; and
(iv) All subsequent appointments to the commission shall be for a term of four (4) years.
(c) A member of the commission must be:
(i) A citizen of the United States;
(ii) A resident of the State of Mississippi for at least ten (10) years preceding his or her appointment;
(iii) A qualified elector;
(iv) At least twenty-five (25) years of age; and
(v) Have no economic interest in a dispensary or cultivation facility.
(d) (i) The commission, by a majority vote of the total membership of the commission cast during its first regularly scheduled meeting of each calendar year, may authorize payment to its members of a stipend not to exceed Eighty-five Dollars ($85.00) per day for each meeting attended or for any day while performing any proper business of the commission;
(ii) Members of the commission shall receive no other compensation, expense reimbursement, or in-lieu-of payments.
(e) (i) The commission may employ staff necessary to assist in the performance of its duties under this section; and
(ii) The Alcoholic Beverage Control Division shall provide staff for the commission if the commission does not have employees available for that purpose.
(f) (i) Initial members of the commission must be appointed within thirty (30) days of the effective date of this section; and
(ii) The President Pro Tempore of the Senate shall call the first meeting of the commission, which shall occur within forty-five (45) days of the effective date of this section.
(20) No implied repeal. (a) By adoption of this section, there is no implied repeal of the existing Mississippi laws criminalizing possession of marijuana for purposes not specified in this section.
(b) This section acknowledges that marijuana use, possession, and distribution for any purpose remains illegal under federal law until such time as it may be decriminalized under federal law.
(21) Limitation on growing. This section:
(a) Authorizes the growing of marijuana at a dispensary or cultivation facility that is properly licensed with the state; and
(b) Does not authorize a qualifying patient, designated caregiver, or other person to grow marijuana.
(22) Severability. If any provision or portion of this section or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect any other provisions or application of this section that can be given effect without the invalid provisions or applications, and to this end the provisions of this section are declared to be severable.
(23) Amendment by Legislature. (a) Except as provided in paragraph (b) of this subsection (23), the Legislature may proceed under Article 15, Section 273, to amend Section 290 of the Constitution of 1890 if the amendments are germane to this section and consistent with its policy and purposes;
(b) The Legislature shall not amend the following provisions of this section:
(i) Subsection (3)(a), (b) and (c) of this section;
(ii) Subsection (8)(h), (i) and (j) of this section; and
(iii) This subsection (23).
(24) Licensure for transporters, distributers, and processers. (a) (i) The Medical Marijuana Commission must license transporters, distributors, and processers; and
(ii) The Alcoholic Beverage Control Division must administer and enforce the provisions of this subsection (24) concerning transporters, distributers, and processors.
(b) A person is not eligible to be an owner, board member, or officers of a transporter, distributor, or processor if the person:
(i) Has been convicted of an excluded felony offense;
(ii) Has previously been an owner of a dispensary, cultivation facility, transporter, distributor, or processor that has had a license revoked; and
(iii) Is under twenty-one (21) years of age.
(c) The commission may conduct a criminal records check in order to carry out this subsection (24).
(d) (i) A transporter license, distributor license, and processor license expires one (1) year after the date of issuance; and
(ii) The commission must issue a renewal license within ten (10) days to any entity that complies with the requirements contained in this section, including, without limitation, the payment of a renewal fee.
(e) The commission may charge a reasonable fee as established by rule for the issuance of an initial license and a renewal license.
(f) (i) 1. A transporter or distributer licensed under this subsection (24) may:
a. Acquire, possess, deliver, transfer, transport, or distribute marijuana to a dispensary, cultivation facility, or processor; and
b. Receive compensation for providing services allowed by this subsection (24).
2. A transporter or distributor licensed under this subsection (24) must not grow, manufacture, process, prepare, supply, or dispense marijuana.
(ii) 1. A processer licensed under this subsection (24) may:
a. Acquire, possess, manufacture, process, prepare, deliver, transport, and supply marijuana to a dispensary or cultivation facility; and
b. Receive compensation for providing services allowed by this subsection (24).
2. A processer licensed under this subsection (24) must not grow or dispense marijuana.
(g) The division may make reasonable inspections on a transporter, distributer, and processor to ensure that the transporter, distributor, and processer:
(i) Is an entity incorporated in the State of Mississippi;
(ii) Has implemented appropriate security measures to deter and prevent unauthorized entrance into areas containing marijuana and the theft of marijuana;
(iii) Conducts an initial comprehensive inventory of all marijuana and a biannual comprehensive inventory of all marijuana;
(iv) Records each transaction between the transporter, distributer, or processer and a dispensary, cultivation facility, or another processer and maintains the records for at least three (3) years; and
(v) Has adopted procedures to ensure accurate recordkeeping.
(h) (i) The commission must adopt rules governing the applications for a transporter license, distributor license, or processer license;
(ii) The division must adopt rules governing:
1. Oversight requirements for transporters, distributers, and processers;
2. Recordkeeping requirements for transporters, distributers, and processers;
3. Security requirements for transporters, distributers, and processers;
4. Personnel requirements for transporters, distributers, and processers;
5. The manufacture, processing, packaging, and dispensing of usable marijuana to qualifying patients and designated caregivers;
6. Procedures for suspending or terminating the licenses of transporters, distributers, and processers that violate the provisions of this section or the rules adopted under this section, procedures for appealing penalties, and a schedule of penalties;
7. Procedures for inspections and investigations of transporters, distributers, and processers;
8. Advertising restrictions for transporters, distributers, and processers; and
9. Any other matters necessary to the fair, impartial, stringent, and comprehensive administration of the duties of the division under this subsection.
(25) Registration and certification of transporter agents, distributer agents, and processor agents. (a) The Alcoholic Beverage Control Division must:
(i) License transporter agents, distributor agents, and processer agents; and
(ii) Administer and enforce the provisions of this subsection (25) concerning transporter agents, distributer agents, and processor agents.
(b) The division may conduct criminal records checks in order to carry out this subsection (25).
(c) Except as prohibited by paragraph (d)(i) of this subsection, the division must issue each transporter agent, distributer agent, and processor agent a registry identification card within ten (10) days of receipt of:
(i) The person's name, address, and date of birth under this section; and
(ii) A reasonable fee in an amount established by rule for the division.
(d) (i) The division shall not issue a registry identification card to a transporter agent, distributer agent, or processor agent who has been convicted of an excluded felony offense;
(ii) The division may conduct a criminal background check of each transporter agent, distributer agent, and processor agent in order to carry out this paragraph (d); and
(iii) The division must notify the transporter, distributer, or processer in writing of the reason for denying the registry identification card.
(e) (i) A registry identification card for a transporter agent, distributer agent, or processor agent expires one (1) year after the date of issuance; and
(ii) A registry identification card of a transporter agent, distributer agent, or processor agent expires upon notification to the division by a dispensary or cultivation facility that the person ceases to work at the transporter, distributer, or processer.
(f) The division may charge a reasonable fee as established by rule for the issuance of a new, renewal, or replacement registry identification card.
(g) (i) The division may revoke the registry identification card of a transporter agent, distributer agent, or processor agent who knowingly violates any provision of this section, and the cardholder is subject to any other penalties established by law for the violation; and
(ii) The division may revoke or suspend the transporter license, distributor license, or processor license of a transporter, distributer, or processor that the division determines knowingly aided or facilitated a violation of any provision of this section, and the cardholder is subject to any other penalties established by law for the violation.
(h) The division must adopt rules governing:
(i) The manner in which the division considers applications for and renewals of registry identification cards for transporter agents, distributor agents, and processor agents;
(ii) The form and content of registration and renewal applications for transporter agents, distributor agents, and processor agents;
(iii) Procedures for suspending or terminating the registration of transporter agents, distributor agents, and processor agents who violate the provisions of this subsection (25) or the rules adopted under this subsection (25), procedures for appealing penalties, and a schedule of penalties; and
(iv) Any other matters necessary for the fair, impartial, stringent, and comprehensive administration of the duties of the division under this subsection (25).
BE IT FURTHER RESOLVED, That this proposed amendment must be submitted by the Secretary of State to the qualified electors at an election to be held on the first Tuesday after the first Monday of November 2019, as provided by Section 273 of the Constitution and by general law.
BE IT FURTHER RESOLVED, That the explanation of this proposed amendment for the ballot shall read as follows: "This proposed constitutional amendment legalizes the medical use of marijuana in the State of Mississippi."