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STATE OF NEW YORK ________________________________________________________________________ 6357--E 2013-2014 Regular Sessions IN ASSEMBLY March 26, 2013 ___________ Introduced by M. of A. GOTTFRIED, LUPARDO, CAHILL, CLARK, CYMBROWITZ, DINOWITZ, HEVESI, LAVINE, PAULIN, PEOPLES-STOKES, ROSENTHAL, TITONE, ARROYO, BRONSON, BROOK-KRASNY, COOK, CRESPO, DenDEKKER, FAHY, JAFFEE, KAVANAGH, LIFTON, OTIS, RIVERA, ROBERTS, SKARTADOS, STECK, WEPRIN, ZEBROWSKI, SEPULVEDA, KATZ, MILLER, O'DONNELL -- Multi-Sponsored by -- M. of A. ABINANTI, AUBRY, BRAUNSTEIN, BRENNAN, BUCHWALD, FARRELL, GALEF, GLICK, HIKIND, JACOBS, KELLNER, MAGEE, MARKEY, McDONALD, MILL- MAN, MOSLEY, MOYA, PERRY, PRETLOW, ROBINSON, RODRIGUEZ, SCARBOROUGH, SCHIMEL, SWEENEY, WALTER, WEISENBERG, WRIGHT -- (at request of the Governor) -- read once and referred to the Committee on Health -- reported and referred to the Committee on Codes -- reported and referred to the Committee on Ways and Means -- passed by Assembly and delivered to the Senate, recalled from the Senate, vote reconsidered, bill amended, ordered reprinted, retaining its place on the order of third reading -- recommitted to the Committee on Health in accordance with Assembly Rule 3, sec. 2 -- reported and referred to the Committee on Codes -- reported and referred to the Committee on Ways and Means -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported and referred to the Committee on Rules -- passed by Assembly and delivered to the Senate, recalled from the Senate, vote reconsidered, bill amended, ordered reprinted, retaining its place on the special order of third reading -- recommitted to the Committee on Rules -- Rules Committee discharged, bill amended, ordered reprinted as amended and recommitted to the Committee on Rules -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee AN ACT to amend the public health law, the tax law, the state finance law, the general business law, the penal law and the criminal proce- dure law, in relation to medical use of marihuana; and providing for the repeal of such provisions upon expiration thereof EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01604-31-4A. 6357--E 2 The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Article 33 of the public health law is amended by adding a 2 new title 5-A to read as follows: 3 TITLE V-A 4 MEDICAL USE OF MARIHUANA 5 Section 3360. Definitions. 6 3361. Certification of patients. 7 3362. Lawful medical use. 8 3363. Registry identification cards. 9 3364. Registered organizations. 10 3365. Registering of registered organizations. 11 3366. Reports by registered organizations. 12 3367. Evaluation; research programs; report by department. 13 3368. Relation to other laws. 14 3369. Protections for the medical use of marihuana. 15 3369-a. Regulations. 16 3369-b. Effective date. 17 3369-c. Suspend; terminate. 18 3369-d. Pricing. 19 3369-e. Severability. 20 § 3360. Definitions. As used in this title, the following terms shall 21 have the following meanings, unless the context clearly requires other- 22 wise: 23 1. "Certified medical use" means the acquisition, possession, use, or, 24 transportation of medical marihuana by a certified patient, or the 25 acquisition, possession, delivery, transportation or administration of 26 medical marihuana by a designated caregiver, for use as part of the 27 treatment of the patient's serious condition, as authorized in a certif- 28 ication under this title including enabling the patient to tolerate 29 treatment for the serious condition. A certified medical use does not 30 include smoking. 31 2. "Caring for" means treating a patient, in the course of which the 32 practitioner has completed a full assessment of the patient's medical 33 history and current medical condition. 34 3. "Certified patient" means a patient who is a resident of New York 35 state or receiving care and treatment in New York state as determined by 36 the commissioner in regulation, and is certified under section thirty- 37 three hundred sixty-one of this title. 38 4. "Certification" means a certification, made under section thirty- 39 three hundred sixty-one of this title. 40 5. "Designated caregiver" means the individual designated by a certi- 41 fied patient in a registry application. A certified patient may desig- 42 nate up to two designated caregivers. 43 6. "Public place" means a public place as defined in regulation by the 44 commissioner. 45 7. (a) "Serious condition" means: 46 (i) having one of the following severe debilitating or life-threaten- 47 ing conditions: cancer, positive status for human immunodeficiency 48 virus or acquired immune deficiency syndrome, amyotrophic lateral scler- 49 osis, Parkinson's disease, multiple sclerosis, damage to the nervous 50 tissue of the spinal cord with objective neurological indication of 51 intractable spasticity, epilepsy, inflammatory bowel disease, neuropa- 52 thies, Huntington's disease, or as added by the commissioner; andA. 6357--E 3 1 (ii) any of the following conditions where it is clinically associated 2 with, or a complication of, a condition under this paragraph or its 3 treatment: cachexia or wasting syndrome; severe or chronic pain; severe 4 nausea; seizures; severe or persistent muscle spasms; or such conditions 5 as are added by the commissioner. 6 (b) No later than eighteen months from the effective date of this 7 section, the commissioner shall determine whether to add the following 8 serious conditions: Alzheimer's, muscular dystrophy, dystonia, post- 9 traumatic stress disorder and rheumatoid arthritis. 10 8. "Medical marihuana" means marihuana as defined in subdivision twen- 11 ty-one of section thirty-three hundred two of this article, intended for 12 a certified medical use, as determined by the commissioner in his or her 13 sole discretion. Any form of medical marihuana not approved by the 14 commissioner is expressly prohibited. 15 9. "Registered organization" means a registered organization under 16 sections thirty-three hundred sixty-four and thirty-three hundred 17 sixty-five of this title. 18 10. "Registry application" means an application properly completed and 19 filed with the department by a certified patient under section thirty- 20 three hundred sixty-three of this title. 21 11. "Registry identification card" means a document that identifies a 22 certified patient or designated caregiver, as provided under section 23 thirty-three hundred sixty-three of this title. 24 12. "Practitioner" means a practitioner who (i) is a physician 25 licensed by New York state and practicing within the state, (ii) who by 26 training or experience is qualified to treat a serious condition as 27 defined in subdivision seven of this section; and (iii) has completed a 28 two to four hour course as determined by the commissioner in regulation 29 and registered with the department; provided however, a registration 30 shall not be denied without cause. Such course may count toward board 31 certification requirements. The commissioner shall consider the inclu- 32 sion of nurse practitioners under this title based upon considerations 33 including access and availability. After such consideration the commis- 34 sioner is authorized to deem nurse practitioners as practitioners under 35 this title. 36 13. "Terminally ill" means an individual has a medical prognosis that 37 the individual's life expectancy is approximately one year or less if 38 the illness runs its normal course. 39 14. "Labor peace agreement" means an agreement between an entity and a 40 labor organization that, at a minimum, protects the state's proprietary 41 interests by prohibiting labor organizations and members from engaging 42 in picketing, work stoppages, boycotts, and any other economic interfer- 43 ence with the registered organization's business. 44 15. "Individual dose" means a single measure of raw medical marihuana 45 or non-infused concentrates to be determined and clearly identified by a 46 patient's practitioner for the patient's specific certified condition. 47 For ingestible or sub-lingual medical marihuana products, no individual 48 dose may contain more than ten milligrams of tetrahydrocannabinol. 49 16. "Form of medical marihuana" means characteristics of the medical 50 marihuana recommended or limited for a particular certified patient, 51 including the method of consumption and any particular strain, variety, 52 and quantity or percentage of marihuana or particular active ingredient. 53 17. "Applicant" means a for-profit entity or not-for-profit corpo- 54 ration and includes: board members, officers, managers, owners, part- 55 ners, principal stakeholders and members who submit an application to 56 become a registered organization.A. 6357--E 4 1 § 3361. Certification of patients. 1. A patient certification may only 2 be issued if: (a) a practitioner has been registered with the department 3 to issue a certification as determined by the commissioner; (b) the 4 patient has a serious condition, which shall be specified in the 5 patient's health care record; (c) the practitioner by training or expe- 6 rience is qualified to treat the serious condition; (d) the patient is 7 under the practitioner's continuing care for the serious condition; and 8 (e) in the practitioner's professional opinion and review of past treat- 9 ments, the patient is likely to receive therapeutic or palliative bene- 10 fit from the primary or adjunctive treatment with medical use of mari- 11 huana for the serious condition. 12 2. The certification shall include (a) the name, date of birth and 13 address of the patient; (b) a statement that the patient has a serious 14 condition and the patient is under the practitioner's care for the seri- 15 ous condition; (c) a statement attesting that all requirements of subdi- 16 vision one of this section have been satisfied; (d) the date; and (e) 17 the name, address, federal registration number, telephone number, and 18 the handwritten signature of the certifying practitioner. The commis- 19 sioner may require by regulation that the certification shall be on a 20 form provided by the department. The practitioner may state in the 21 certification that, in the practitioner's professional opinion, the 22 patient would benefit from medical marihuana only until a specified 23 date. The practitioner may state in the certification that, in the prac- 24 titioner's professional opinion, the patient is terminally ill and that 25 the certification shall not expire until the patient dies. 26 3. In making a certification, the practitioner shall consider the form 27 of medical marihuana the patient should consume, including the method of 28 consumption and any particular strain, variety, and quantity or percent- 29 age of marihuana or particular active ingredient, and appropriate 30 dosage. The practitioner shall state in the certification any recommen- 31 dation or limitation the practitioner makes, in his or her professional 32 opinion, concerning the appropriate form or forms of medical marihuana 33 and dosage. 34 4. Every practitioner shall consult the prescription monitoring drug 35 program registry prior to making or issuing a certification, for the 36 purpose of reviewing a patient's controlled substance history. For 37 purposes of this section, a practitioner may authorize a designee to 38 consult the prescription monitoring program registry on his or her 39 behalf, provided that such designation is in accordance with section 40 thirty-three hundred forty-three-a of this article. 41 5. The practitioner shall give the certification to the certified 42 patient, and place a copy in the patient's health care record. 43 6. No practitioner shall issue a certification under this section for 44 himself or herself. 45 7. A registry identification card based on a certification shall 46 expire one year after the date the certification is signed by the prac- 47 titioner. 48 8. (a) If the practitioner states in the certification that, in the 49 practitioner's professional opinion, the patient would benefit from 50 medical marihuana only until a specified earlier date, then the registry 51 identification card shall expire on that date; 52 (b) If the practitioner states in the certification that in the prac- 53 titioner's professional opinion the patient is terminally ill and that 54 the certification shall not expire until the patient dies, then the 55 registry identification card shall state that the patient is terminallyA. 6357--E 5 1 ill and that the registration card shall not expire until the patient 2 dies; 3 (c) If the practitioner re-issues the certification to terminate the 4 certification on an earlier date, then the registry identification card 5 shall expire on that date and shall be promptly returned by the certi- 6 fied patient to the department; 7 (d) If the certification so provides, the registry identification card 8 shall state any recommendation or limitation by the practitioner as to 9 the form or forms of medical marihuana or dosage for the certified 10 patient; and 11 (e) The commissioner shall make regulations to implement this subdivi- 12 sion. 13 § 3362. Lawful medical use. 1. The possession, acquisition, use, 14 delivery, transfer, transportation, or administration of medical mari- 15 huana by a certified patient or designated caregiver possessing a valid 16 registry identification card, for certified medical use, shall be lawful 17 under this title; provided that: 18 (a) the marihuana that may be possessed by a certified patient shall 19 not exceed a thirty day supply of the dosage as determined by the prac- 20 titioner, consistent with any guidance and regulations issued by the 21 commissioner, provided that during the last seven days of any thirty day 22 period, the certified patient may also possess up to such amount for the 23 next thirty day period; 24 (b) the marihuana that may be possessed by designated caregivers does 25 not exceed the quantities referred to in paragraph (a) of this subdivi- 26 sion for each certified patient for whom the caregiver possesses a valid 27 registry identification card, up to five certified patients; 28 (c) the form or forms of medical marihuana that may be possessed by 29 the certified patient or designated caregiver pursuant to a certif- 30 ication shall be in compliance with any recommendation or limitation by 31 the practitioner as to the form or forms of medical marihuana or dosage 32 for the certified patient in the certification; and 33 (d) the medical marihuana shall be kept in the original package in 34 which it was dispensed under subdivision twelve of section thirty-three 35 hundred sixty-four of this title, except for the portion removed for 36 immediate consumption for certified medical use by the certified 37 patient. 38 2. Notwithstanding subdivision one of this section: 39 (a) possession of medical marihuana shall not be lawful under this 40 title if it is smoked, consumed, vaporized, or grown in a public place, 41 regardless of the form of medical marihuana stated in the patient's 42 certification. 43 (b) a person possessing medical marihuana under this title shall 44 possess his or her registry identification card at all times when in 45 immediate possession of medical marihuana. 46 § 3363. Registry identification cards. 1. Upon approval of the certif- 47 ication, the department shall issue registry identification cards for 48 certified patients and designated caregivers. A registry identification 49 card shall expire as provided in section thirty-three hundred sixty-one 50 of this title or as otherwise provided in this section. The department 51 shall begin issuing registry identification cards as soon as practicable 52 after the certifications required by section thirty-three hundred 53 sixty-nine-b are granted. The department may specify a form for a regis- 54 try application, in which case the department shall provide the form on 55 request, reproductions of the form may be used, and the form shall be 56 available for downloading from the department's website.A. 6357--E 6 1 2. To obtain, amend or renew a registry identification card, a certi- 2 fied patient or designated caregiver shall file a registry application 3 with the department. The registry application or renewal application 4 shall include: 5 (a) in the case of a certified patient: 6 (i) the patient's certification (a new written certification shall be 7 provided with a renewal application); 8 (ii) the name, address, and date of birth of the patient; 9 (iii) the date of the certification; 10 (iv) if the patient has a registry identification card based on a 11 current valid certification, the registry identification number and 12 expiration date of that registry identification card; 13 (v) the specified date until which the patient would benefit from 14 medical marihuana, if the certification states such a date; 15 (vi) the name, address, federal registration number, and telephone 16 number of the certifying practitioner; 17 (vii) any recommendation or limitation by the practitioner as to the 18 form or forms of medical marihuana or dosage for the certified patient; 19 and 20 (viii) other individual identifying information required by the 21 department; 22 (b) in the case of a certified patient, if the patient designates a 23 designated caregiver, the name, address, and date of birth of the desig- 24 nated caregiver, and other individual identifying information required 25 by the department; 26 (c) in the case of a designated caregiver: 27 (i) the name, address, and date of birth of the designated caregiver; 28 (ii) if the designated caregiver has a registry identification card, 29 the registry identification number and expiration date of that registry 30 identification card; and 31 (iii) other individual identifying information required by the depart- 32 ment; 33 (d) a statement that a false statement made in the application is 34 punishable under section 210.45 of the penal law; 35 (e) the date of the application and the signature of the certified 36 patient or designated caregiver, as the case may be; 37 (f) a fifty dollar application fee, provided, that the department may 38 waive or reduce the fee in cases of financial hardship; and 39 (g) any other requirements determined by the commissioner. 40 3. Where a certified patient is under the age of eighteen: 41 (a) The application for a registry identification card shall be made 42 by an appropriate person over twenty-one years of age. The application 43 shall state facts demonstrating that the person is appropriate. 44 (b) The designated caregiver shall be (i) a parent or legal guardian 45 of the certified patient, (ii) a person designated by a parent or legal 46 guardian, or (iii) an appropriate person approved by the department upon 47 a sufficient showing that no parent or legal guardian is appropriate or 48 available. 49 4. No person may be a designated caregiver if the person is under 50 twenty-one years of age unless a sufficient showing is made to the 51 department that the person should be permitted to serve as a designated 52 caregiver. The requirements for such a showing shall be determined by 53 the commissioner. 54 5. No person may be a designated caregiver for more than five certi- 55 fied patients at one time.A. 6357--E 7 1 6. If a certified patient wishes to change or terminate his or her 2 designated caregiver, for whatever reason, the certified patient shall 3 notify the department as soon as practicable. The department shall issue 4 a notification to the designated caregiver that their registration card 5 is invalid and must be promptly returned to the department. The newly 6 designated caregiver must comply with all requirements set forth in this 7 section. 8 7. If the certification so provides, the registry identification card 9 shall contain any recommendation or limitation by the practitioner as to 10 the form or forms of medical marihuana or dosage for the certified 11 patient. 12 8. The department shall issue separate registry identification cards 13 for certified patients and designated caregivers as soon as reasonably 14 practicable after receiving a complete application under this section, 15 unless it determines that the application is incomplete or factually 16 inaccurate, in which case it shall promptly notify the applicant. 17 9. If the application of a certified patient designates an individual 18 as a designated caregiver who is not authorized to be a designated care- 19 giver, that portion of the application shall be denied by the department 20 but that shall not affect the approval of the balance of the applica- 21 tion. 22 10. A registry identification card shall: 23 (a) contain the name of the certified patient or the designated care- 24 giver as the case may be; 25 (b) contain the date of issuance and expiration date of the registry 26 identification card; 27 (c) contain a registry identification number for the certified patient 28 or designated caregiver, as the case may be and a registry identifica- 29 tion number; 30 (d) contain a photograph of the individual to whom the registry iden- 31 tification card is being issued, which shall be obtained by the depart- 32 ment in a manner specified by the commissioner in regulations; provided, 33 however, that if the department requires certified patients to submit 34 photographs for this purpose, there shall be a reasonable accommodation 35 of certified patients who are confined to their homes due to their 36 medical conditions and may therefore have difficulty procuring photo- 37 graphs; 38 (e) be a secure document as determined by the department; 39 (f) plainly state any recommendation or limitation by the practitioner 40 as to the form or forms of medical marihuana or dosage for the certified 41 patient; and 42 (g) any other requirements determined by the commissioner. 43 11. A certified patient or designated caregiver who has been issued a 44 registry identification card shall notify the department of any change 45 in his or her name or address or, with respect to the patient, if he or 46 she ceases to have the serious condition noted on the certification 47 within ten days of such change. The certified patient's or designated 48 caregiver's registry identification card shall be deemed invalid and 49 shall be returned promptly to the department. 50 12. If a certified patient or designated caregiver loses his or her 51 registry identification card, he or she shall notify the department and 52 submit a twenty-five dollar fee within ten days of losing the card to 53 maintain the registration. The department may establish higher fees for 54 issuing a new registry identification card for second and subsequent 55 replacements for a lost card, provided, that the department may waive or 56 reduce the fee in cases of financial hardship. The department shallA. 6357--E 8 1 issue a new registry identification card as soon as practicable, which 2 may contain a new registry identification number, to the certified 3 patient or designated caregiver, as the case may be. The certified 4 patient or designated caregiver shall not be able to obtain medical 5 marihuana until the certified patient receives a new card. 6 13. The department shall maintain a confidential list of the persons 7 to whom it has issued registry identification cards. Individual identi- 8 fying information obtained by the department under this title shall be 9 confidential and exempt from disclosure under article six of the public 10 officers law. Notwithstanding this subdivision, the department may 11 notify any appropriate law enforcement agency of information relating to 12 any violation or suspected violation of this title. 13 14. The department shall verify to law enforcement personnel in an 14 appropriate case whether a registry identification card is valid. 15 15. If a certified patient or designated caregiver willfully violates 16 any provision of this title as determined by the department, his or her 17 registry identification card may be suspended or revoked. This is in 18 addition to any other penalty that may apply. 19 § 3364. Registered organizations. 1. A registered organization shall 20 be a for-profit business entity or not-for-profit corporation organized 21 for the purpose of acquiring, possessing, manufacturing, selling, deliv- 22 ering, transporting, distributing or dispensing marihuana for certified 23 medical use. 24 2. The acquiring, possession, manufacture, sale, delivery, transport- 25 ing, distributing or dispensing of marihuana by a registered organiza- 26 tion under this title in accordance with its registration under section 27 thirty-three hundred sixty-five of this title or a renewal thereof shall 28 be lawful under this title. 29 3. Each registered organization shall contract with an independent 30 laboratory to test the medical marihuana produced by the registered 31 organization. The commissioner shall approve the laboratory and require 32 that the laboratory report testing results in a manner determined by the 33 commissioner. The commissioner is authorized to issue regulation requir- 34 ing the laboratory to perform certain tests and services. 35 4. (a) A registered organization may lawfully, in good faith, sell, 36 deliver, distribute or dispense medical marihuana to a certified patient 37 or designated caregiver upon presentation to the registered organization 38 of a valid registry identification card for that certified patient or 39 designated caregiver. When presented with the registry identification 40 card, the registered organization shall provide to the certified patient 41 or designated caregiver a receipt, which shall state: the name, address, 42 and registry identification number of the registered organization; the 43 name and registry identification number of the certified patient and the 44 designated caregiver (if any); the date the marihuana was sold; any 45 recommendation or limitation by the practitioner as to the form or forms 46 of medical marihuana or dosage for the certified patient; and the form 47 and the quantity of medical marihuana sold. The registered organization 48 shall retain a copy of the registry identification card and the receipt 49 for six years. 50 (b) The proprietor of a registered organization shall file or cause to 51 be filed any receipt and certification information with the department 52 by electronic means on a real time basis as the commissioner shall 53 require by regulation. When filing receipt and certification information 54 electronically pursuant to this paragraph, the proprietor of the regis- 55 tered organization shall dispose of any electronically recordedA. 6357--E 9 1 prescription information in such manner as the commissioner shall by 2 regulation require. 3 5. (a) No registered organization may sell, deliver, distribute or 4 dispense to any certified patient or designated caregiver a quantity of 5 medical marihuana larger than that individual would be allowed to 6 possess under this title. 7 (b) When dispensing medical marihuana to a certified patient or desig- 8 nated caregiver, the registered organization (i) shall not dispense an 9 amount greater than a thirty day supply to a certified patient until the 10 certified patient has exhausted all but a seven day supply provided 11 pursuant to a previously issued certification, and (ii) shall verify the 12 information in subparagraph (i) of this paragraph by consulting the 13 prescription monitoring program registry under section thirty-three 14 hundred forty-three-a of this article. 15 (c) Medical marihuana dispensed to a certified patient or designated 16 caregiver by a registered organization shall conform to any recommenda- 17 tion or limitation by the practitioner as to the form or forms of 18 medical marihuana or dosage for the certified patient. 19 6. When a registered organization sells, delivers, distributes or 20 dispenses medical marihuana to a certified patient or designated care- 21 giver, it shall provide to that individual a safety insert, which will 22 be developed and approved by the commissioner and include, but not be 23 limited to, information on: 24 (a) methods for administering medical marihuana in individual doses, 25 (b) any potential dangers stemming from the use of medical marihuana, 26 (c) how to recognize what may be problematic usage of medical marihua- 27 na and obtain appropriate services or treatment for problematic usage, 28 and 29 (d) other information as determined by the commissioner. 30 7. Registered organizations shall not be managed by or employ anyone 31 who has been convicted of any felony of sale or possession of drugs, 32 narcotics, or controlled substances provided that this subdivision only 33 applies to (a) managers or employees who come into contact with or 34 handle medical marihuana, and (b) a conviction less than ten years (not 35 counting time spent in incarceration) prior to being employed, for which 36 the person has not received a certificate of relief from disabilities or 37 a certificate of good conduct under article twenty-three of the 38 correction law. 39 8. Manufacturing of medical marihuana by a registered organization 40 shall only be done in an indoor, enclosed, secure facility located in 41 New York state, which may include a greenhouse. The commissioner shall 42 promulgate regulations establishing requirements for such facilities. 43 9. Dispensing of medical marihuana by a registered organization shall 44 only be done in an indoor, enclosed, secure facility located in New York 45 state, which may include a greenhouse. The commissioner shall promul- 46 gate regulations establishing requirements for such facilities. 47 10. A registered organization shall determine the quality, safety, and 48 clinical strength of medical marihuana manufactured or dispensed by the 49 registered organization, and shall provide documentation of that quali- 50 ty, safety and clinical strength to the department and to any person or 51 entity to which the medical marihuana is sold or dispensed. 52 11. A registered organization shall be deemed to be a "health care 53 provider" for the purposes of title two-D of article two of this chap- 54 ter. 55 12. Medical marihuana shall be dispensed to a certified patient or 56 designated caregiver in a sealed and properly labeled package. TheA. 6357--E 10 1 labeling shall contain: (a) the information required to be included in 2 the receipt provided to the certified patient or designated caregiver by 3 the registered organization; (b) the packaging date; (c) any applicable 4 date by which the medical marihuana should be used; (d) a warning stat- 5 ing, "This product is for medicinal use only. Women should not consume 6 during pregnancy or while breastfeeding except on the advice of the 7 certifying health care practitioner, and in the case of breastfeeding 8 mothers, including the infant's pediatrician. This product might impair 9 the ability to drive. Keep out of reach of children."; (e) the amount of 10 individual doses contained within; and (f) a warning that the medical 11 marihuana must be kept in the original container in which it was 12 dispensed. 13 13. The commissioner is authorized to make rules and regulations 14 restricting the advertising and marketing of medical marihuana, which 15 shall be consistent with the federal regulations governing prescription 16 drug advertising and marketing. 17 § 3365. Registering of registered organizations. 1. Application for 18 initial registration. (a) An applicant for registration as a registered 19 organization under section thirty-three hundred sixty-four of this title 20 shall include such information prepared in such manner and detail as the 21 commissioner may require, including but not limited to: 22 (i) a description of the activities in which it intends to engage as a 23 registered organization; 24 (ii) that the applicant: 25 (A) is of good moral character; 26 (B) possesses or has the right to use sufficient land, buildings, and 27 other premises (which shall be specified in the application) and equip- 28 ment to properly carry on the activity described in the application, or 29 in the alternative posts a bond of not less than two million dollars; 30 (C) is able to maintain effective security and control to prevent 31 diversion, abuse, and other illegal conduct relating to the marihuana; 32 (D) is able to comply with all applicable state laws and regulations 33 relating to the activities in which it intends to engage under the 34 registration; 35 (iii) that the applicant has entered into a labor peace agreement with 36 a bona-fide labor organization that is actively engaged in representing 37 or attempting to represent the applicant's employees. The maintenance of 38 such a labor peace agreement shall be an ongoing material condition of 39 certification. 40 (iv) the applicant's status under subdivision one of section thirty- 41 three hundred sixty-four of this title; and 42 (v) the application shall include the name, residence address and 43 title of each of the officers and directors and the name and residence 44 address of any person or entity that is a member of the applicant. Each 45 such person, if an individual, or lawful representative if a legal enti- 46 ty, shall submit an affidavit with the application setting forth: 47 (A) any position of management or ownership during the preceding ten 48 years of a ten per centum or greater interest in any other business, 49 located in or outside this state, manufacturing or distributing drugs; 50 (B) whether such person or any such business has been convicted of a 51 felony or had a registration or license suspended or revoked in any 52 administrative or judicial proceeding; and 53 (C) such other information as the commissioner may reasonably require. 54 2. Duty to report. The applicant shall be under a continuing duty to 55 report to the department any change in facts or circumstances reflectedA. 6357--E 11 1 in the application or any newly discovered or occurring fact or circum- 2 stance which is required to be included in the application. 3 3. Granting of registration. (a) The commissioner shall grant a regis- 4 tration or amendment to a registration under this section if he or she 5 is satisfied that: 6 (i) the applicant will be able to maintain effective control against 7 diversion of marihuana; 8 (ii) the applicant will be able to comply with all applicable state 9 laws; 10 (iii) the applicant and its officers are ready, willing and able to 11 properly carry on the manufacturing or distributing activity for which a 12 registration is sought; 13 (iv) the applicant possesses or has the right to use sufficient land, 14 buildings and equipment to properly carry on the activity described in 15 the application; 16 (v) it is in the public interest that such registration be granted; 17 the commissioner may consider whether the number of registered organiza- 18 tions in an area will be adequate or excessive to reasonably serve the 19 area; 20 (vi) the applicant and its managing officers are of good moral charac- 21 ter; 22 (vii) the applicant has entered into a labor peace agreement with a 23 bona-fide labor organization that is actively engaged in representing or 24 attempting to represent the applicant's employees; and 25 (viii) the applicant satisfies any other conditions as determined by 26 the commissioner. 27 (b) If the commissioner is not satisfied that the applicant should be 28 issued a registration, he or she shall notify the applicant in writing 29 of those factors upon which further evidence is required. Within thirty 30 days of the receipt of such notification, the applicant may submit addi- 31 tional material to the commissioner or demand a hearing, or both. 32 (c) The fee for a registration under this section shall be a reason- 33 able amount determined by the department in regulations; provided, 34 however, if the registration is issued for a period greater than two 35 years the fee shall be increased, pro rata, for each additional month of 36 validity. 37 (d) Registrations issued under this section shall be effective only 38 for the registered organization and shall specify: 39 (i) the name and address of the registered organization; 40 (ii) which activities of a registered organization are permitted by 41 the registration; 42 (iii) the land, buildings and facilities that may be used for the 43 permitted activities of the registered organization; and 44 (iv) such other information as the commissioner shall reasonably 45 provide to assure compliance with this title. 46 (e) Upon application of a registered organization, a registration may 47 be amended to allow the registered organization to relocate within the 48 state or to add or delete permitted registered organization activities 49 or facilities. The fee for such amendment shall be two hundred fifty 50 dollars. 51 4. A registration issued under this section shall be valid for two 52 years from the date of issue, except that in order to facilitate the 53 renewals of such registrations, the commissioner may upon the initial 54 application for a registration, issue some registrations which may 55 remain valid for a period of time greater than two years but not exceed- 56 ing an additional eleven months.A. 6357--E 12 1 5. Applications for renewal of registrations. (a) An application for 2 the renewal of any registration issued under this section shall be filed 3 with the department not more than six months nor less than four months 4 prior to the expiration thereof. A late-filed application for the 5 renewal of a registration may, in the discretion of the commissioner, be 6 treated as an application for an initial license. 7 (b) The application for renewal shall include such information 8 prepared in the manner and detail as the commissioner may require, 9 including but not limited to: 10 (i) any material change in the circumstances or factors listed in 11 subdivision one of this section; and 12 (ii) every known charge or investigation, pending or concluded during 13 the period of the registration, by any governmental or administrative 14 agency with respect to: 15 (A) each incident or alleged incident involving the theft, loss, or 16 possible diversion of marihuana manufactured or distributed by the 17 applicant; and 18 (B) compliance by the applicant with the laws of the state with 19 respect to any substance listed in section thirty-three hundred six of 20 this article. 21 (c) An applicant for renewal shall be under a continuing duty to 22 report to the department any change in facts or circumstances reflected 23 in the application or any newly discovered or occurring fact or circum- 24 stance which is required to be included in the application. 25 (d) If the commissioner is not satisfied that the applicant is enti- 26 tled to a renewal of the registration, he or she shall within a reason- 27 ably practicable time as determined by the commissioner, serve upon the 28 applicant or his or her attorney of record in person or by registered or 29 certified mail an order directing the applicant to show cause why his or 30 her application for renewal should not be denied. The order shall speci- 31 fy in detail the respects in which the applicant has not satisfied the 32 commissioner that the registration should be renewed. 33 (e) Within a reasonably practicable time as determined by the commis- 34 sioner of such order, the applicant may submit additional material to 35 the commissioner or demand a hearing or both. If a hearing is demanded 36 the commissioner shall fix a date as soon as reasonably practicable. 37 6. Granting of renewal of registrations. (a) The commissioner shall 38 renew a registration unless he or she determines and finds that: 39 (i) the applicant is unlikely to maintain or be able to maintain 40 effective control against diversion; or 41 (ii) the applicant is unlikely to comply with all state laws applica- 42 ble to the activities in which it may engage under the registration; or 43 (iii) it is not in the public interest to renew the registration 44 because the number of registered organizations in an area is excessive 45 to reasonably serve the area; or 46 (iv) the applicant has either violated or terminated its labor peace 47 agreement. 48 (b) For purposes of this section, proof that a registered organiza- 49 tion, during the period of its registration, has failed to maintain 50 effective control against diversion, violates any provision of this 51 article, or has knowingly or negligently failed to comply with applica- 52 ble state laws relating to the activities in which it engages under the 53 registration, shall constitute grounds for suspension or termination of 54 the registered organization's registration as determined by the commis- 55 sioner. The registered organization shall also be under a continuing 56 duty to report to the department any material change or fact or circum-A. 6357--E 13 1 stance to the information provided in the registered organization's 2 application. 3 7. The department may suspend or terminate the registration of a 4 registered organization, on grounds and using procedures under this 5 article relating to a license, to the extent consistent with this title. 6 The department shall suspend or terminate the registration in the event 7 that a registered organization violates or terminates the applicable 8 labor peace agreement. Conduct in compliance with this title which may 9 violate conflicting federal law, shall not be grounds to suspend or 10 terminate a registration. 11 8. The department shall begin issuing registrations for registered 12 organizations as soon as practicable after the certifications required 13 by section thirty-three hundred sixty-nine-b of this title are given. 14 9. The commissioner shall register no more than five registered organ- 15 izations that manufacture medical marihuana with no more than four 16 dispensing sites wholly owned and operated by such registered organiza- 17 tion. The commissioner shall ensure that such registered organizations 18 and dispensing sites are geographically distributed across the state. 19 The commission may register additional registered organizations. 20 § 3366. Reports by registered organizations. 1. The commissioner 21 shall, by regulation, require each registered organization to file 22 reports by the registered organization during a particular period. The 23 commissioner shall determine the information to be reported and the 24 forms, time, and manner of the reporting. 25 2. The commissioner shall, by regulation, require each registered 26 organization to adopt and maintain security, tracking, record keeping, 27 record retention and surveillance systems, relating to all medical mari- 28 huana at every stage of acquiring, possession, manufacture, sale, deliv- 29 ery, transporting, distributing, or dispensing by the registered organ- 30 ization, subject to regulations of the commissioner. 31 § 3367. Evaluation; research programs; report by department. 1. The 32 commissioner may provide for the analysis and evaluation of the opera- 33 tion of this title. The commissioner may enter into agreements with one 34 or more persons, not-for-profit corporations or other organizations, for 35 the performance of an evaluation of the implementation and effectiveness 36 of this title. 37 2. The department may develop, seek any necessary federal approval 38 for, and carry out research programs relating to medical use of marihua- 39 na. Participation in any such research program shall be voluntary on the 40 part of practitioners, patients, and designated caregivers. 41 3. The department shall report every two years, beginning two years 42 after the effective date of this title, to the governor and the legisla- 43 ture on the medical use of marihuana under this title and make appropri- 44 ate recommendations. 45 § 3368. Relation to other laws. 1. (a) The provisions of this article 46 shall apply to this title, except that where a provision of this title 47 conflicts with another provision of this article, this title shall 48 apply. 49 (b) Medical marihuana shall not be deemed to be a "drug" for purposes 50 of article one hundred thirty-seven of the education law. 51 2. Nothing in this title shall be construed to require an insurer or 52 health plan under this chapter or the insurance law to provide coverage 53 for medical marihuana. Nothing in this title shall be construed to 54 require coverage for medical marihuana under article twenty-five of this 55 chapter or article five of the social services law.A. 6357--E 14 1 § 3369. Protections for the medical use of marihuana. 1. Certified 2 patients, designated caregivers, practitioners, registered organizations 3 and the employees of registered organizations shall not be subject to 4 arrest, prosecution, or penalty in any manner, or denied any right or 5 privilege, including but not limited to civil penalty or disciplinary 6 action by a business or occupational or professional licensing board or 7 bureau, solely for the certified medical use or manufacture of marihua- 8 na, or for any other action or conduct in accordance with this title. 9 2. Non-discrimination. Being a certified patient shall be deemed to be 10 having a "disability" under article fifteen of the executive law (human 11 rights law), section forty-c of the civil rights law, sections 240.00, 12 485.00, and 485.05 of the penal law, and section 200.50 of the criminal 13 procedure law. This subdivision shall not bar the enforcement of a poli- 14 cy prohibiting an employee from performing his or her employment duties 15 while impaired by a controlled substance. This subdivision shall not 16 require any person or entity to do any act that would put the person or 17 entity in violation of federal law or cause it to lose a federal 18 contract or funding. 19 3. The fact that a person is a certified patient and/or acting in 20 accordance with this title, shall not be a consideration in a proceeding 21 pursuant to applicable sections of the domestic relations law, the 22 social services law and the family court act. 23 4. Certification applications, certification forms, any certified 24 patient information contained within a database, and copies of registry 25 identification cards shall be deemed exempt from public disclosure under 26 sections eighty-seven and eighty-nine of the public officers law. 27 § 3369-a. Regulations. The commissioner shall make regulations to 28 implement this title. 29 § 3369-b. Effective date. Registry identification cards or registered 30 organization registrations shall be issued or become effective no later 31 than eighteen months from signing or until such time as the commissioner 32 and the superintendent of state police certify that this title can be 33 implemented in accordance with public health and safety interests, 34 whichever event comes later. 35 § 3369-c. Suspend; terminate. Based upon the recommendation of the 36 commissioner and/or the superintendent of state police that there is a 37 risk to the public health or safety, the governor may immediately termi- 38 nate all licenses issued to registered organizations. 39 § 3369-d. Pricing. 1. Every sale of medical marihuana shall be at the 40 price determined by the commissioner. Every charge made or demanded for 41 medical marihuana not in accordance with the price determined by the 42 commissioner, is prohibited. 43 2. The commissioner is hereby authorized to set the per dose price of 44 each form of medical marihuana sold by any registered organization. In 45 setting the per dose price of each form of medical marihuana, the 46 commissioner shall consider the fixed and variable costs of producing 47 the form of marihuana and any other factor the commissioner, in his or 48 her discretion, deems relevant to determining the per dose price of each 49 form of medical marihuana. 50 § 3369-e. Severability. If any clause, sentence, paragraph, section or 51 part of this act shall be adjudged by any court of competent jurisdic- 52 tion to be invalid, the judgment shall not affect, impair, or invalidate 53 the remainder thereof, but shall be confined in its operation to the 54 clause, sentence, paragraph, section or part thereof directly involved 55 in the controversy in which the judgment shall have been rendered.A. 6357--E 15 1 § 3. Subdivision 2 of section 3371 of the public health law, as added 2 by section 5 of part A of chapter 447 of the laws of 2012, is amended to 3 read as follows: 4 2. The prescription monitoring program registry may be accessed, under 5 such terms and conditions as are established by the department for 6 purposes of maintaining the security and confidentiality of the informa- 7 tion contained in the registry, by: 8 (a) a practitioner, or a designee authorized by such practitioner 9 pursuant to paragraph (b) of subdivision two of section thirty-three 10 hundred forty-three-a or section thirty-three hundred sixty-one of this 11 article, for the purposes of: (i) informing the practitioner that a 12 patient may be under treatment with a controlled substance by another 13 practitioner; (ii) providing the practitioner with notifications of 14 controlled substance activity as deemed relevant by the department, 15 including but not limited to a notification made available on a monthly 16 or other periodic basis through the registry of controlled substances 17 activity pertaining to his or her patient; (iii) allowing the practi- 18 tioner, through consultation of the prescription monitoring program 19 registry, to review his or her patient's controlled substances history 20 as required by section thirty-three hundred forty-three-a or section 21 thirty-three hundred sixty-one of this article; and (iv) providing to 22 his or her patient, or person authorized pursuant to paragraph (j) of 23 subdivision one of this section, upon request, a copy of such patient's 24 controlled substance history as is available to the practitioner through 25 the prescription monitoring program registry; or 26 (b) a pharmacist, pharmacy intern or other designee authorized by the 27 pharmacist pursuant to paragraph (b) of subdivision three of section 28 thirty-three hundred forty-three-a of this article, for the purposes of: 29 (i) consulting the prescription monitoring program registry to review 30 the controlled substances history of an individual for whom one or more 31 prescriptions for controlled substances or certifications for marihuana 32 is presented to the pharmacist, pursuant to section thirty-three hundred 33 forty-three-a of this article; and (ii) receiving from the department 34 such notifications of controlled substance activity as are made avail- 35 able by the department[ .]; or 36 (c) an individual employed by a registered organization for the 37 purpose of consulting the prescription monitoring program registry to 38 review the controlled substances history of an individual for whom one 39 or more certifications for marihuana is presented to that registered 40 organization, pursuant to section thirty-three hundred sixty-four of 41 this article. Unless otherwise authorized by this article, an individual 42 employed by a registered organization will be provided access to the 43 prescription monitoring program in the sole discretion of the commis- 44 sioner. 45 § 4. The tax law is amended by adding a new article 20-B to read as 46 follows: 47 ARTICLE 20-B 48 EXCISE TAX ON MEDICAL MARIHUANA 49 Section 490. Definitions. 50 491. Returns to be secret. 51 § 490. Definitions. 1. (a) All definitions of terms applicable to 52 title five-A of article thirty-three of the public health law shall 53 apply to this article. 54 (b) As used in this section, where not otherwise specifically defined 55 and unless a different meaning is clearly required "gross receipt" means 56 the amount received in or by reason of any sale, conditional or other-A. 6357--E 16 1 wise, of medical marihuana or in or by reason of the furnishing of 2 medical marihuana from the sale of medical marihuana provided by a 3 registered organization to a certified patient or designated caregiver. 4 Gross receipt is expressed in money, whether paid in cash, credit or 5 property of any kind or nature, and shall be determined without any 6 deduction therefrom on account of the cost of the service sold or the 7 cost of materials, labor or services used or other costs, interest or 8 discount paid, or any other expenses whatsoever. "Amount received" for 9 the purpose of the definition of gross receipt, as the term gross 10 receipt is used throughout this article, means the amount charged for 11 the provision of medical marihuana. 12 2. There is hereby imposed an excise tax on the gross receipts from 13 the sale of medical marihuana by a registered organization to a certi- 14 fied patient or designated caregiver, to be paid by the registered 15 organization, at the rate of seven percent. The tax imposed by this 16 article shall be charged against and be paid by the registered organiza- 17 tion and shall not be added as a separate charge or line item on any 18 sales slip, invoice, receipt or other statement or memorandum of the 19 price given to the retail customer. 20 3. The commissioner may make, adopt and amend rules, regulations, 21 procedures and forms necessary for the proper administration of this 22 article. 23 4. Every registered organization that makes sales of medical marihuana 24 subject to the tax imposed by this article shall, on or before the twen- 25 tieth date of each month, file with the commissioner a return on forms 26 to be prescribed by the commissioner, showing its receipts from the 27 retail sale of medical marihuana during the preceding calendar month and 28 the amount of tax due thereon. Such returns shall contain such further 29 information as the commissioner may require. Every registered organiza- 30 tion required to file a return under this section shall, at the time of 31 filing such return, pay to the commissioner the total amount of tax due 32 on its retail sales of medical marihuana for the period covered by such 33 return. If a return is not filed when due, the tax shall be due on the 34 day on which the return is required to be filed. 35 5. Whenever the commissioner shall determine that any moneys received 36 under the provisions of this article were paid in error, he may cause 37 the same to be refunded, with interest, in accordance with such rules 38 and regulations as he may prescribe, except that no interest shall be 39 allowed or paid if the amount thereof would be less than one dollar. 40 Such interest shall be at the overpayment rate set by the commissioner 41 pursuant to subdivision twenty-sixth of section one hundred seventy-one 42 of this chapter, or if no rate is set, at the rate of six percent per 43 annum, from the date when the tax, penalty or interest to be refunded 44 was paid to a date preceding the date of the refund check by not more 45 than thirty days. Provided, however, that for the purposes of this 46 subdivision, any tax paid before the last day prescribed for its payment 47 shall be deemed to have been paid on such last day. Such moneys received 48 under the provisions of this article which the commissioner shall deter- 49 mine were paid in error, may be refunded out of funds in the custody of 50 the comptroller to the credit of such taxes provided an application 51 therefor is filed with the commissioner within two years from the time 52 the erroneous payment was made. 53 6. The provisions of article twenty-seven of this chapter shall apply 54 to the tax imposed by this article in the same manner and with the same 55 force and effect as if the language of such article had been incorpo- 56 rated in full into this section and had expressly referred to the taxA. 6357--E 17 1 imposed by this article, except to the extent that any provision of such 2 article is either inconsistent with a provision of this article or is 3 not relevant to this article. 4 7. All taxes, interest and penalties collected or received by the 5 commissioner under this article shall be deposited and disposed of 6 pursuant to the provisions of section one hundred seventy-one-a of this 7 chapter, provided that an amount equal to one hundred percent collected 8 under this article less any amount determined by the commissioner to be 9 reserved by the comptroller for refunds or reimbursements shall be paid 10 by the comptroller to the credit of the medical marihuana trust fund 11 established by section eighty-nine-h of the state finance law. 12 8. A registered organization that dispenses medical marihuana shall 13 provide to the department information on where the medical marihuana was 14 dispensed and where the medical marihuana was manufactured. A registered 15 organization that obtains marihuana from another registered organization 16 shall obtain from such registered organization information on where the 17 medical marihuana was manufactured. 18 § 491. Returns to be secret. 1. Except in accordance with proper judi- 19 cial order or as in this section or otherwise provided by law, it shall 20 be unlawful for the commissioner, any officer or employee of the depart- 21 ment, or any officer or person who, pursuant to this section, is permit- 22 ted to inspect any return or report or to whom a copy, an abstract or a 23 portion of any return or report is furnished, or to whom any information 24 contained in any return or report is furnished, or any person engaged or 25 retained by such department on an independent contract basis or any 26 person who in any manner may acquire knowledge of the contents of a 27 return or report filed pursuant to this article to divulge or make known 28 in any manner the contents or any other information relating to the 29 business of a distributor, owner or other person contained in any return 30 or report required under this article. The officers charged with the 31 custody of such returns or reports shall not be required to produce any 32 of them or evidence of anything contained in them in any action or 33 proceeding in any court, except on behalf of the state, the state 34 department of health, or the commissioner in an action or proceeding 35 under the provisions of this chapter or on behalf of the state or the 36 commissioner in any other action or proceeding involving the collection 37 of a tax due under this chapter to which the state or the commissioner 38 is a party or a claimant or on behalf of any party to any action or 39 proceeding under the provisions of this article, when the returns or the 40 reports or the facts shown thereby are directly involved in such action 41 or proceeding, or in an action or proceeding relating to the regulation 42 or taxation of medical marihuana on behalf of officers to whom informa- 43 tion shall have been supplied as provided in subdivision two of this 44 section, in any of which events the court may require the production of, 45 and may admit in evidence so much of said returns or reports or of the 46 facts shown thereby as are pertinent to the action or proceeding and no 47 more. Nothing herein shall be construed to prohibit the commissioner, in 48 his or her discretion, from allowing the inspection or delivery of a 49 certified copy of any return or report filed under this article or of 50 any information contained in any such return or report by or to a duly 51 authorized officer or employee of the state department of health; or by 52 or to the attorney general or other legal representatives of the state 53 when an action shall have been recommended or commenced pursuant to this 54 chapter in which such returns or reports or the facts shown thereby are 55 directly involved; or the inspection of the returns or reports required 56 under this article by the comptroller or duly designated officer orA. 6357--E 18 1 employee of the state department of audit and control, for purposes of 2 the audit of a refund of any tax paid by a registered organization or 3 other person under this article; nor to prohibit the delivery to a 4 registered organization, or a duly authorized representative of such 5 registered organization, a certified copy of any return or report filed 6 by such registered organization pursuant to this article, nor to prohib- 7 it the publication of statistics so classified as to prevent the iden- 8 tification of particular returns or reports and the items thereof. 9 2. The commissioner, in his or her discretion and pursuant to such 10 rules and regulations as he or she may adopt, may permit the commission- 11 er of internal revenue of the United States, or the appropriate officers 12 of any other state which regulates or taxes medical marihuana, or the 13 duly authorized representatives of such commissioner or of any such 14 officers, to inspect returns or reports made pursuant to this article, 15 or may furnish to such commissioner or other officers, or duly author- 16 ized representatives, a copy of any such return or report or an abstract 17 of the information therein contained, or any portion thereof, or may 18 supply such commissioner or any such officers or such representatives 19 with information relating to the business of a registered organization 20 making returns or reports hereunder. The commissioner may refuse to 21 supply information pursuant to this subdivision to the commissioner of 22 internal revenue of the United States or to the officers of any other 23 state if the statutes of the United States, or of the state represented 24 by such officers, do not grant substantially similar privileges to the 25 commissioner, but such refusal shall not be mandatory. Information shall 26 not be supplied to the commissioner of internal revenue of the United 27 States or the appropriate officers of any other state which regulates or 28 taxes medical marihuana, or the duly authorized representatives of such 29 commissioner or of any of such officers, unless such commissioner, offi- 30 cer or other representatives shall agree not to divulge or make known in 31 any manner the information so supplied, but such officers may transmit 32 such information to their employees or legal representatives when neces- 33 sary, who in turn shall be subject to the same restrictions as those 34 hereby imposed upon such commissioner, officer or other representatives. 35 3. (a) Any officer or employee of the state who willfully violates the 36 provisions of subdivision one or two of this section shall be dismissed 37 from office and be incapable of holding any public office in this state 38 for a period of five years thereafter. 39 (b) Cross-reference: For criminal penalties, see article thirty-seven 40 of this chapter. 41 § 5. The state finance law is amended by adding a new section 89-h to 42 read as follows: 43 § 89-h. Medical marihuana trust fund. 1. There is hereby established 44 in the joint custody of the state comptroller and the commissioner of 45 taxation and finance a special fund to be known as the "medical marihua- 46 na trust fund." 47 2. The medical marihuana trust fund shall consist of all moneys 48 required to be deposited in the medical marihuana trust fund pursuant to 49 the provisions of section four hundred ninety of the tax law. 50 3. The moneys in the medical marihuana trust fund shall be kept sepa- 51 rate and shall not be commingled with any other moneys in the custody of 52 the commissioner of taxation and finance and the state comptroller. 53 4. The moneys of the medical marihuana trust fund, following appropri- 54 ation by the legislature, shall be allocated upon a certificate of 55 approval of availability by the director of the budget as follows: (a) 56 Twenty-two and five-tenths percent of the monies shall be transferred toA. 6357--E 19 1 the counties in New York state in which the medical marihuana was manu- 2 factured and allocated in proportion to the gross sales originating from 3 medical marihuana manufactured in each such county; (b) twenty-two and 4 five-tenths percent of the moneys shall be transferred to the counties 5 in New York state in which the medical marihuana was dispensed and allo- 6 cated in proportion to the gross sales occurring in each such county; 7 (c) five percent of the monies shall be transferred to the office of 8 alcoholism and substance abuse services, which shall use that revenue 9 for additional drug abuse prevention, counseling and treatment services; 10 and (d) five percent of the revenue received by the department shall be 11 transferred to the division of criminal justice services, which shall 12 use that revenue for a program of discretionary grants to state and 13 local law enforcement agencies that demonstrate a need relating to title 14 five-A of article thirty-three of the public health law; said grants 15 could be used for personnel costs of state and local law enforcement 16 agencies. For purposes of this subdivision, the city of New York shall 17 be deemed to be a county. 18 § 6. Subdivision 1 of section 171-a of the tax law, as amended by 19 section 1 of part R of chapter 60 of the laws of 2004, is amended to 20 read as follows: 21 1. All taxes, interest, penalties and fees collected or received by 22 the commissioner or the commissioner's duly authorized agent under arti- 23 cles nine (except section one hundred eighty-two-a thereof and except as 24 otherwise provided in section two hundred five thereof), nine-A, 25 twelve-A (except as otherwise provided in section two hundred eighty- 26 four-d thereof), thirteen, thirteen-A (except as otherwise provided in 27 section three hundred twelve thereof), eighteen, nineteen, twenty 28 (except as otherwise provided in section four hundred eighty-two there- 29 of), twenty-B twenty-one, twenty-two, twenty-six, twenty-six-B, twenty- 30 eight (except as otherwise provided in section eleven hundred two or 31 eleven hundred three thereof), twenty-eight-A, thirty-one (except as 32 otherwise provided in section fourteen hundred twenty-one thereof), 33 thirty-two, thirty-three and thirty-three-A of this chapter shall be 34 deposited daily in one account with such responsible banks, banking 35 houses or trust companies as may be designated by the comptroller, to 36 the credit of the comptroller. Such an account may be established in one 37 or more of such depositories. Such deposits shall be kept separate and 38 apart from all other money in the possession of the comptroller. The 39 comptroller shall require adequate security from all such depositories. 40 Of the total revenue collected or received under such articles of this 41 chapter, the comptroller shall retain in the comptroller's hands such 42 amount as the commissioner may determine to be necessary for refunds or 43 reimbursements under such articles of this chapter and article ten ther- 44 eof out of which amount the comptroller shall pay any refunds or 45 reimbursements to which taxpayers shall be entitled under the provisions 46 of such articles of this chapter and article ten thereof. The commis- 47 sioner and the comptroller shall maintain a system of accounts showing 48 the amount of revenue collected or received from each of the taxes 49 imposed by such articles. The comptroller, after reserving the amount to 50 pay such refunds or reimbursements, shall, on or before the tenth day of 51 each month, pay into the state treasury to the credit of the general 52 fund all revenue deposited under this section during the preceding 53 calendar month and remaining to the comptroller's credit on the last day 54 of such preceding month, (i) except that the comptroller shall pay to 55 the state department of social services that amount of overpayments of 56 tax imposed by article twenty-two of this chapter and the interest onA. 6357--E 20 1 such amount which is certified to the comptroller by the commissioner as 2 the amount to be credited against past-due support pursuant to subdivi- 3 sion six of section one hundred seventy-one-c of this chapter, (ii) and 4 except that the comptroller shall pay to the New York state higher 5 education services corporation and the state university of New York or 6 the city university of New York respectively that amount of overpayments 7 of tax imposed by article twenty-two of this chapter and the interest on 8 such amount which is certified to the comptroller by the commissioner as 9 the amount to be credited against the amount of defaults in repayment of 10 guaranteed student loans and state university loans or city university 11 loans pursuant to subdivision five of section one hundred seventy-one-d 12 and subdivision six of section one hundred seventy-one-e of this chap- 13 ter, (iii) and except further that, notwithstanding any law, the comp- 14 troller shall credit to the revenue arrearage account, pursuant to 15 section ninety-one-a of the state finance law, that amount of overpay- 16 ment of tax imposed by article nine, nine-A, twenty-two, thirty, thir- 17 ty-A, thirty-B, thirty-two or thirty-three of this chapter, and any 18 interest thereon, which is certified to the comptroller by the commis- 19 sioner as the amount to be credited against a past-due legally enforcea- 20 ble debt owed to a state agency pursuant to paragraph (a) of subdivision 21 six of section one hundred seventy-one-f of this article, provided, 22 however, he shall credit to the special offset fiduciary account, pursu- 23 ant to section ninety-one-c of the state finance law, any such amount 24 creditable as a liability as set forth in paragraph (b) of subdivision 25 six of section one hundred seventy-one-f of this article, (iv) and 26 except further that the comptroller shall pay to the city of New York 27 that amount of overpayment of tax imposed by article nine, nine-A, twen- 28 ty-two, thirty, thirty-A, thirty-B, thirty-two, or thirty-three of this 29 chapter and any interest thereon that is certified to the comptroller by 30 the commissioner as the amount to be credited against city of New York 31 tax warrant judgment debt pursuant to section one hundred seventy-one-l 32 of this article, (v) and except further that the comptroller shall pay 33 to a non-obligated spouse that amount of overpayment of tax imposed by 34 article twenty-two of this chapter and the interest on such amount which 35 has been credited pursuant to section one hundred seventy-one-c, one 36 hundred seventy-one-d, one hundred seventy-one-e, one hundred seventy- 37 one-f or one hundred seventy-one-l of this article and which is certi- 38 fied to the comptroller by the commissioner as the amount due such non- 39 obligated spouse pursuant to paragraph six of subsection (b) of section 40 six hundred fifty-one of this chapter; and (vi) the comptroller shall 41 deduct a like amount which the comptroller shall pay into the treasury 42 to the credit of the general fund from amounts subsequently payable to 43 the department of social services, the state university of New York, the 44 city university of New York, or the higher education services corpo- 45 ration, or the revenue arrearage account or special offset fiduciary 46 account pursuant to section ninety-one-a or ninety-one-c of the state 47 finance law, as the case may be, whichever had been credited the amount 48 originally withheld from such overpayment, and (vii) with respect to 49 amounts originally withheld from such overpayment pursuant to section 50 one hundred seventy-one-l of this article and paid to the city of New 51 York, the comptroller shall collect a like amount from the city of New 52 York. 53 § 7. Subdivision 1 of section 171-a of the tax law, as amended by 54 section 54 of part A of chapter 59 of the laws of 2014, is amended to 55 read as follows:A. 6357--E 21 1 1. All taxes, interest, penalties and fees collected or received by 2 the commissioner or the commissioner's duly authorized agent under arti- 3 cles nine (except section one hundred eighty-two-a thereof and except as 4 otherwise provided in section two hundred five thereof), nine-A, 5 twelve-A (except as otherwise provided in section two hundred eighty- 6 four-d thereof), thirteen, thirteen-A (except as otherwise provided in 7 section three hundred twelve thereof), eighteen, nineteen, twenty 8 (except as otherwise provided in section four hundred eighty-two there- 9 of), twenty-B, twenty-one, twenty-two, twenty-six, twenty-six-B, twen- 10 ty-eight (except as otherwise provided in section eleven hundred two or 11 eleven hundred three thereof), twenty-eight-A, thirty-one (except as 12 otherwise provided in section fourteen hundred twenty-one thereof), 13 thirty-three and thirty-three-A of this chapter shall be deposited daily 14 in one account with such responsible banks, banking houses or trust 15 companies as may be designated by the comptroller, to the credit of the 16 comptroller. Such an account may be established in one or more of such 17 depositories. Such deposits shall be kept separate and apart from all 18 other money in the possession of the comptroller. The comptroller shall 19 require adequate security from all such depositories. Of the total 20 revenue collected or received under such articles of this chapter, the 21 comptroller shall retain in the comptroller's hands such amount as the 22 commissioner may determine to be necessary for refunds or reimbursements 23 under such articles of this chapter out of which amount the comptroller 24 shall pay any refunds or reimbursements to which taxpayers shall be 25 entitled under the provisions of such articles of this chapter. The 26 commissioner and the comptroller shall maintain a system of accounts 27 showing the amount of revenue collected or received from each of the 28 taxes imposed by such articles. The comptroller, after reserving the 29 amount to pay such refunds or reimbursements, shall, on or before the 30 tenth day of each month, pay into the state treasury to the credit of 31 the general fund all revenue deposited under this section during the 32 preceding calendar month and remaining to the comptroller's credit on 33 the last day of such preceding month, (i) except that the comptroller 34 shall pay to the state department of social services that amount of 35 overpayments of tax imposed by article twenty-two of this chapter and 36 the interest on such amount which is certified to the comptroller by the 37 commissioner as the amount to be credited against past-due support 38 pursuant to subdivision six of section one hundred seventy-one-c of this 39 article, (ii) and except that the comptroller shall pay to the New York 40 state higher education services corporation and the state university of 41 New York or the city university of New York respectively that amount of 42 overpayments of tax imposed by article twenty-two of this chapter and 43 the interest on such amount which is certified to the comptroller by the 44 commissioner as the amount to be credited against the amount of defaults 45 in repayment of guaranteed student loans and state university loans or 46 city university loans pursuant to subdivision five of section one 47 hundred seventy-one-d and subdivision six of section one hundred seven- 48 ty-one-e of this article, (iii) and except further that, notwithstanding 49 any law, the comptroller shall credit to the revenue arrearage account, 50 pursuant to section ninety-one-a of the state finance law, that amount 51 of overpayment of tax imposed by article nine, nine-A, twenty-two, thir- 52 ty, thirty-A, thirty-B or thirty-three of this chapter, and any interest 53 thereon, which is certified to the comptroller by the commissioner as 54 the amount to be credited against a past-due legally enforceable debt 55 owed to a state agency pursuant to paragraph (a) of subdivision six of 56 section one hundred seventy-one-f of this article, provided, however, heA. 6357--E 22 1 shall credit to the special offset fiduciary account, pursuant to 2 section ninety-one-c of the state finance law, any such amount credita- 3 ble as a liability as set forth in paragraph (b) of subdivision six of 4 section one hundred seventy-one-f of this article, (iv) and except 5 further that the comptroller shall pay to the city of New York that 6 amount of overpayment of tax imposed by article nine, nine-A, twenty- 7 two, thirty, thirty-A, thirty-B or thirty-three of this chapter and any 8 interest thereon that is certified to the comptroller by the commission- 9 er as the amount to be credited against city of New York tax warrant 10 judgment debt pursuant to section one hundred seventy-one-l of this 11 article, (v) and except further that the comptroller shall pay to a 12 non-obligated spouse that amount of overpayment of tax imposed by arti- 13 cle twenty-two of this chapter and the interest on such amount which has 14 been credited pursuant to section one hundred seventy-one-c, one hundred 15 seventy-one-d, one hundred seventy-one-e, one hundred seventy-one-f or 16 one hundred seventy-one-l of this article and which is certified to the 17 comptroller by the commissioner as the amount due such non-obligated 18 spouse pursuant to paragraph six of subsection (b) of section six 19 hundred fifty-one of this chapter; and (vi) the comptroller shall deduct 20 a like amount which the comptroller shall pay into the treasury to the 21 credit of the general fund from amounts subsequently payable to the 22 department of social services, the state university of New York, the 23 city university of New York, or the higher education services corpo- 24 ration, or the revenue arrearage account or special offset fiduciary 25 account pursuant to section ninety-one-a or ninety-one-c of the state 26 finance law, as the case may be, whichever had been credited the amount 27 originally withheld from such overpayment, and (vii) with respect to 28 amounts originally withheld from such overpayment pursuant to section 29 one hundred seventy-one-l of this article and paid to the city of New 30 York, the comptroller shall collect a like amount from the city of New 31 York. 32 § 7-a. Section 853 of the general business law is amended by adding a 33 new subdivision 3 to read as follows: 34 3. This article shall not apply to any sale, furnishing or possession 35 which is for a lawful purpose under title five-A of article thirty-three 36 of the public health law. 37 § 8. Section 221.00 of the penal law, as added by chapter 360 of the 38 laws of 1977, is amended to read as follows: 39 § 221.00 Marihuana; definitions. 40 Unless the context in which they are used clearly otherwise requires, 41 the terms occurring in this article shall have the same meaning ascribed 42 to them in article two hundred twenty of this chapter. Any act that is 43 lawful under title five-A of article thirty-three of the public health 44 law is not a violation of this article. 45 § 9. The penal law is amended by adding a new article 179 to read as 46 follows: 47 ARTICLE 179 48 CRIMINAL DIVERSION OF MEDICAL MARIHUANA 49 Section 179.00 Criminal diversion of medical marihuana; definitions. 50 179.05 Criminal diversion of medical marihuana; limitations. 51 179.10 Criminal diversion of medical marihuana in the first 52 degree. 53 179.11 Criminal diversion of medical marihuana in the second 54 degree. 55 179.15 Criminal retention of medical marihuana.A. 6357--E 23 1 § 179.00 Criminal diversion of medical marihuana; definitions. 2 The following definitions are applicable to this article: 3 1. "Medical marihuana" means medical marihuana as defined in subdivi- 4 sion eight of section thirty-three hundred sixty of the public health 5 law. 6 2. "Certification" means a certification, made under section thirty- 7 three hundred sixty-one of the public health law. 8 § 179.05 Criminal diversion of medical marihuana; limitations. 9 The provisions of this article shall not apply to: 10 1. a practitioner authorized to issue a certification who acted in 11 good faith in the lawful course of his or her profession; or 12 2. a registered organization as that term is defined in subdivision 13 nine of section thirty-three hundred sixty of the public health law who 14 acted in good faith in the lawful course of the practice of pharmacy; or 15 3. a person who acted in good faith seeking treatment for medical 16 condition or assisting another person to obtain treatment for a medical 17 condition. 18 § 179.10 Criminal diversion of medical marihuana in the first degree. 19 A person is guilty of criminal diversion of medical marihuana in the 20 first degree when he or she is a practitioner, as that term is defined 21 in subdivision twelve of section thirty-three hundred sixty of the 22 public health law, who issues a certification with knowledge of reason- 23 able grounds to know that (i) the recipient has no medical need for it, 24 or (ii) it is for a purpose other than to treat a serious condition as 25 defined in subdivision seven of section thirty-three hundred sixty of 26 the public health law. 27 Criminal diversion of medical marihuana in the first degree is a class 28 E felony. 29 § 179.11 Criminal diversion of medical marihuana in the second degree. 30 A person is guilty of criminal diversion of medical marihuana in the 31 second degree when he or she sells, trades, delivers, or otherwise 32 provides medical marihuana to another with knowledge or reasonable 33 grounds to know that the recipient is not registered under title five-A 34 of article thirty-three of the public health law. 35 Criminal diversion of medical marihuana in the second degree is a 36 class B misdemeanor. 37 § 179.15 Criminal retention of medical marihuana. 38 A person is guilty of criminal retention of medical marihuana when, 39 being a certified patient or designated caregiver, as those terms are 40 defined in subdivisions three and five of section thirty-three hundred 41 sixty of the public health law, respectively, he or she knowingly 42 obtains, possesses, stores or maintains an amount of marihuana in excess 43 of the amount he or she is authorized to possess under the provisions of 44 title five-A of article thirty-three of the public health law. 45 Criminal retention of medical marihuana is a class A misdemeanor. 46 § 10. The opening paragraph of subdivision 1 of section 216.00 of the 47 criminal procedure law, as added by section 4 of part AAA of chapter 56 48 of the laws of 2009, is amended to read as follows: 49 "Eligible defendant" means any person who stands charged in an indict- 50 ment or a superior court information with a class B, C, D or E felony 51 offense defined in article one hundred seventy-nine, two hundred twenty 52 or two hundred twenty-one of the penal law or any other specified 53 offense as defined in subdivision four of section 410.91 of this chap- 54 ter, provided, however, a defendant is not an "eligible defendant" if he 55 or she:A. 6357--E 24 1 § 11. Subdivision 5 of section 410.91 of the criminal procedure law, 2 as amended by section 8 of part AAA of chapter 56 of the laws of 2009, 3 is amended to read as follows: 4 5. For the purposes of this section, a "specified offense" is an 5 offense defined by any of the following provisions of the penal law: 6 burglary in the third degree as defined in section 140.20, criminal 7 mischief in the third degree as defined in section 145.05, criminal 8 mischief in the second degree as defined in section 145.10, grand larce- 9 ny in the fourth degree as defined in subdivision one, two, three, four, 10 five, six, eight, nine or ten of section 155.30, grand larceny in the 11 third degree as defined in section 155.35 (except where the property 12 consists of one or more firearms, rifles or shotguns), unauthorized use 13 of a vehicle in the second degree as defined in section 165.06, criminal 14 possession of stolen property in the fourth degree as defined in subdi- 15 vision one, two, three, five or six of section 165.45, criminal 16 possession of stolen property in the third degree as defined in section 17 165.50 (except where the property consists of one or more firearms, 18 rifles or shotguns), forgery in the second degree as defined in section 19 170.10, criminal possession of a forged instrument in the second degree 20 as defined in section 170.25, unlawfully using slugs in the first degree 21 as defined in section 170.60, criminal diversion of medical marihuana in 22 the first degree as defined in section 179.10 or an attempt to commit 23 any of the aforementioned offenses if such attempt constitutes a felony 24 offense; or a class B felony offense defined in article two hundred 25 twenty where a sentence is imposed pursuant to paragraph (a) of subdivi- 26 sion two of section 70.70 of the penal law; or any class C, class D or 27 class E controlled substance or marihuana felony offense as defined in 28 article two hundred twenty or two hundred twenty-one. 29 § 12. This act shall take effect immediately and shall expire and be 30 deemed repealed seven years after such date; provided that the amend- 31 ments to section 171-a of the tax law made by section seven of this act 32 shall take effect on the same date and in the same manner as section 54 33 of part A of chapter 59 of the laws of 2014 takes effect; and provided, 34 further, that the amendments to subdivision 5 of section 410.91 of the 35 criminal procedure law made by section eleven of this act shall not 36 affect the expiration and repeal of such section and shall expire and be 37 deemed repealed therewith.