2015 Delaware Code
Title 16 - Health and Safety
CHAPTER 49A. THE DELAWARE MEDICAL MARIJUANA ACT
§ 4919A Requirements, prohibitions, penalties.

(a) A registered compassion center shall be operated on a not-for-profit basis. The bylaws of a registered compassion center shall contain such provisions relative to the disposition of revenues to establish and maintain its not-for-profit character. A registered compassion center need not be recognized as tax-exempt by the Internal Revenue Service and is not required to incorporate pursuant to Title 8.

(b) The operating documents of a registered compassion center shall include procedures for the oversight of the registered compassion center and procedures to ensure accurate recordkeeping.

(c) A registered compassion center and a registered safety compliance facility shall implement appropriate security measures to deter and prevent the theft of marijuana and unauthorized entrance into areas containing marijuana.

(d) A registered compassion center and a registered safety compliance facility may not be located within 500 feet of the property line of a preexisting public or private school.

(e) A registered compassion center is prohibited from acquiring, possessing, cultivating, manufacturing, delivering, transferring, transporting, supplying, or dispensing marijuana for any purpose except to assist registered qualifying patients with the medical use of marijuana directly or through the qualifying patients' designated caregivers.

(f) All cultivation of marijuana for registered compassion centers must take place in an enclosed, locked location at the physical address or addresses provided to the Department during the registration process, which can only be accessed by compassion center agents working or volunteering for the registered compassion center.

(g) A registered compassion center may not purchase usable marijuana or mature marijuana plants from any person other than another registered compassion center.

(h) Before marijuana may be dispensed to a designated caregiver or a registered qualifying patient, a compassion center agent must determine that the individual is a current cardholder in the verification system and must verify each of the following:

(1) That the registry identification card presented to the registered compassion center is valid;

(2) That the person presenting the card is the person identified on the registry identification card presented to the compassion center agent; and

(3) That the registered compassion center is the designated compassion center for the registered qualifying patient who is obtaining the marijuana directly or via his or her designated caregiver.

(i) A registered compassion center shall not dispense more than 3 ounces of marijuana to a registered qualifying patient, directly or via a designated caregiver, in any 14-day period. Registered compassion centers shall ensure compliance with this limitation by maintaining internal, confidential records that include records specifying how much marijuana is being dispensed to the registered qualifying patient and whether it was dispensed directly to the registered qualifying patient or to the designated caregiver. Each entry must include the date and time the marijuana was dispensed. These records must be maintained by the compassion centers for a minimum of 3 years.

(j) A registered compassion center or compassion center agent shall only dispense marijuana to a visiting qualifying patient if he or she possesses a valid Delaware registry identification card and if the procedures in subsections (h) and (i) of this section are followed.

(k) No person may advertise medical marijuana sales in print, broadcast, or by paid in-person solicitation of customers. This shall not prevent appropriate signs on the property of the registered compassion center, listings in business directories including phone books, listings in trade or medical publications, or the sponsorship of health or not-for-profit charity or advocacy events.

(l) A registered compassion center shall not share office space with nor refer patients to a physician.

(m) A physician shall not refer patients to a registered compassion center or registered designated caregiver, advertise in a registered compassion center, or, if the physician issues written certifications, hold any financial interest in a registered compassion center.

(n) No person who has been convicted of an excluded felony offense or has been convicted of a misdemeanor drug offense, as provided in Title 16 or an equivalent offense from another jurisdiction, within 5 years from the date of application that is not excluded by § 4902A(7)b.2. of this title may be a compassion center agent.

(o) The Department shall issue a civil fine of up to $3,000 for violations of this section.

(p) The Department shall suspend or revoke a registration certificate for serious or multiple violations of this chapter and regulations issued in accordance with this chapter. A registered compassion center may continue to cultivate and possess marijuana plants during a suspension, but it may not dispense, transfer, or sell marijuana.

(q) The suspension or revocation of a certificate is a final Department action, subject to judicial review. Jurisdiction and venue for judicial review are vested in the Superior Court.

(r) Any cardholder who sells marijuana to a person who is not allowed to possess marijuana for medical purposes under this chapter shall have his or her registry identification card revoked and shall be subject to other penalties for the unauthorized sale of marijuana.

(s) Any registered qualifying patient, registered designated caregiver, compassion center agent, or safety compliance facility agent, including a principal owner, board member, employee or volunteer who has access to compassion center or safety compliance facility records, who sells marijuana to someone who is not allowed to use marijuana for medical purposes or who fails to maintain, fraudulently maintains, or fraudulently represents to the Department records required by this chapter or rules promulgated pursuant to this chapter, for the purposes of selling marijuana to someone who is not allowed to use marijuana for medical purposes under this chapter is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000, or both, in addition to any other penalties for the distribution of marijuana.

(t) The Department shall revoke the registry identification card of any cardholder who knowingly commits multiple or serious violations of this chapter.

(u) Registered compassion centers are subject to random and reasonable inspection by the Department. The Department shall give reasonable notice of an inspection under this paragraph.

(v) Fraudulent representation to a law-enforcement official of any fact or circumstance relating to the medical use of marijuana to avoid arrest or prosecution shall be a class B misdemeanor which may be punishable by up to 6 months incarceration at Level V under § 4204 of Title 11 and a fine of up to $1,150, as the Court deems appropriate which shall be in addition to any other penalties that may apply for making a false statement or for the use of marijuana other than use undertaken pursuant to this chapter and jurisdiction for prosecution shall be exclusively in Superior Court.

(w) Registration cards issued pursuant to § 4909A of this title shall be in the possession of the registrant while in possession of medical marijuana outside the registrant's residence and may be subject to prosecution for failure to do so. If the registrant is unable to produce a valid § 4909A of this title registration card within 2 weeks of the summons, the penalty for a violation of this section shall be an unclassified misdemeanor and jurisdiction shall be exclusively in Superior Court.

(x) For registered qualifying patients and designated caregivers, medical marijuana shall be contained, when not being prepared for ingestion or ingested and outside the registrant's residence, within, sealed, tamperproof containers issued by compassion centers pursuant to Department regulations and may be subject to prosecution for failure to do so. If the registrant is unable to produce a sealed, tamperproof container within 2 weeks of the summons, the penalty for a violation of this section shall be an unclassified misdemeanor.

78 Del. Laws, c. 23, § 1; 70 Del. Laws, c. 186, § 1.;

§ 4920A Confidentiality.

(a) The following information received and records kept by the Department for purposes of administering this chapter are confidential and exempt from the Delaware Freedom of Information Act [Chapter 100 of Title 29], and not subject to disclosure to any individual or public or private entity, except as necessary for authorized employees of the State of Delaware to perform official duties pursuant to this chapter:

(1) Applications and renewals, their contents, and supporting information submitted by qualifying patients and designated caregivers, including information regarding their designated caregivers and physicians.

(2) Applications and renewals, their contents, and supporting information submitted by or on behalf of compassion centers and safety compliance facilities in compliance with this chapter, including their physical addressees.

(3) The individual names and other information identifying persons to whom the Department has issued registry identification cards.

(4) Any dispensing information required to be kept under § 4919A of this title or Department regulation shall identify cardholders and registered compassion centers by their registry identification numbers and not contain names or other personally identifying information.

(5) Any Department hard drives or other data-recording media that are no longer in use and that contain cardholder information must be destroyed. The Department shall retain a signed statement from a Department employee confirming the destruction.

(b) Nothing in this section precludes the following:

(1) Department employees shall notify law-enforcement about falsified or fraudulent information submitted to the Department if the employee who suspects that falsified or fraudulent information has been submitted.

(2) The Department shall notify state or local law-enforcement about apparent criminal violations of this chapter.

(3) Compassion center agents shall notify the Department of a suspected violation or attempted violation of this chapter or the regulations issued pursuant to it.

(4) The Department shall verify registry identification cards pursuant to 4921A of this title.

(5) The submission of the § 4922A of this title report to the legislature.

Information obtained pursuant to this chapter is subject to the same protections and penalties afforded other health information under the Health Insurance Portability and Accountability Act (HIPAA), 45 CFR Part 160, 162 and 164.

78 Del. Laws, c. 23, § 1.;

§ 4921A Registry identification and registration certificate verification.

(a) The Department shall maintain a confidential list of the persons to whom the Department has issued registry identification cards and their addresses, phone numbers, and registry identification numbers.

(b) The Department shall maintain a verification system which shall be established by January 1, 2013. The verification system must allow law-enforcement personnel, compassion center agents, and safety compliance facility agents to enter a registry identification number to determine whether or not the number corresponds with a current, valid registry identification card. The system shall only disclose whether the identification card is valid; whether the cardholder is a registered qualifying patient or a registered designated caregiver; the registry identification number of the registered compassion center designated to serve the registered qualifying patient; and, if the cardholder is a registered designated caregiver, the registry identification number of the registered qualified patient who is assisted by the cardholder.

(c) The Department shall, with a cardholder's permission, confirm his or her status as a registered qualifying patient or registered designated caregiver to a landlord, employer, school, medical professional, or court.

(d) The Department shall disclose the names of any person whose registry identification card was revoked to any court where the person is seeking to assert the protections of 4913A of this title.

78 Del. Laws, c. 23, § 1; 70 Del. Laws, c. 186, § 1.;

§ 4922A Oversight Committee; annual report by Department.

(a) The Medical Marijuana Act Oversight Committee is established to evaluate and make recommendations regarding the implementation of this chapter.

(1) The Oversight Committee shall consist of 9 members who possess the qualifications and are appointed as follows:

a. One member, appointed by the President Pro Tempore of the Senate.

b. One member, appointed by the Speaker of the House.

c. The Secretary of the Department, or a designee appointed by the Secretary.

d. Two medical professionals, each licensed in Delaware, with experience in medical marijuana issues, appointed by the Governor.

e. One member with experience in policy development or implementation in the field of medical marijuana, appointed by the Governor.

f. Three members who each shall be a cardholder, as defined in § 4902A of this title, appointed by the Governor.

(2) The members of the Oversight Committee shall serve at the pleasure of the appointing authority.

(3) A quorum shall consist of 51% of the membership of the Oversight Committee.

(4) The Oversight Committee shall select a Chair and Vice Chair from among its members.

(5) Staff support for the Oversight Committee shall be provided by the Department.

(6) The Oversight Committee shall meet at least 2 times per year for the purpose of evaluating and making recommendations to the Governor, the General Assembly, and the Department regarding the following:

a. The ability of qualifying patients in all areas of the State to obtain timely access to high-quality medical marijuana.

b. The effectiveness of the registered compassion centers, individually and together, in serving the needs of qualifying patients, including the provision of educational and support services, the reasonableness of their fees, whether they are generating any complaints or security problems, and the sufficiency of the number operating to serve the registered qualifying patients of Delaware.

c. The effectiveness of the registered safety compliance facility or facilities, including whether a sufficient number are operating.

d. The sufficiency of the regulatory and security safeguards contained in this chapter and adopted by the Department to ensure that access to and use of marijuana cultivated is provided only to cardholders authorized for such purposes.

e. Any recommended additions or revisions to the Department regulations or this chapter, including relating to security, safe handling, labeling, and nomenclature.

f. Any research studies regarding health effects of medical marijuana for patients.

(b) The Department shall submit to the Governor and the General Assembly an annual report that does not disclose any identifying information about cardholders, registered compassion centers, or physicians, but does contain, at a minimum, all of the following information:

(1) The number of applications and renewals filed for registry identification cards.

(2) The number of qualifying patients and designated caregivers approved in each county.

(3) The nature of the debilitating medical conditions of the qualifying patients.

(4) The number of registry identification cards revoked for misconduct.

(5) The number of physicians providing written certifications for qualifying patients.

(6) The number of registered compassion centers.

(7) Specific accounting of fees and costs.

78 Del. Laws, c. 23, § 1; 80 Del. Laws, c. 11, § 1.;

§ 4923A Department to issue regulations.

Not later than July 1, 2012, the Department shall promulgate regulations:

(1) Governing the manner in which the Department shall consider petitions from the public to add debilitating medical conditions or treatments to the list of debilitating medical conditions set forth in § 4902A(3) of this title, including public notice of and an opportunity to comment in public hearings on the petitions;

(2) Establishing the form and content of registration and renewal applications submitted under this chapter;

(3) Governing the manner in which it shall consider applications for and renewals of registry identification cards; and

(4) Governing the following matters related to registered compassion centers and security compliance facilities, with the goal of protecting against diversion and theft, without imposing an undue burden on the registered compassion centers or compromising the confidentiality of cardholders:

a. Minimum oversight requirements for registered compassion centers;

b. Minimum recordkeeping requirements for registered compassion centers;

c. Minimum security requirements for registered compassion centers, which shall include that each registered compassion center location must be protected by a fully operational security alarm system;

d. The competitive scoring process addressed in §§ 4914A and 4915A of this title;

e. Procedures for suspending or terminating the registration certificates or registry identification cards of cardholders, registered compassion centers, and registered safety compliance facilities that commit multiple or serious violations of the provisions of this chapter or the regulations promulgated pursuant to this section; and

f. The design and security features of medical marijuana containers to be provided by the compassion centers.

(5) Requiring application and renewal fees for registry identification cards, and registered compassion center registration certificates, according to the following:

a. The total fees collected must generate revenues sufficient to offset all expenses of implementing and administering this chapter, except that fee revenue may be offset or supplemented by private donations;

b. The total amount of revenue from application, renewal, and registration fees for compassion centers and security compliance facilities shall be sufficient to implement and administer the compassion center and safety compliance facility provisions of this chapter;

c. The Department may establish a sliding scale of patient application and renewal fees based upon a qualifying patient's household income; and

d. The Department may accept donations from private sources to reduce application and renewal fees.

e. The total amount of revenue from application, renewal, and registration fees for compassion centers, security compliance facilities, and registry identification cards will be deposited to a special account within the Department for the operation of the program created by this chapter and shall be used as necessary to support program operations and growth.

78 Del. Laws, c. 23, § 1.;

§ 4924A Enforcement of this chapter.

If the Department fails to adopt regulations to implement this chapter within the times provided for in this chapter, any citizen may commence an action in Superior Court to compel the Department to perform the actions mandated pursuant to the provisions of this chapter.

78 Del. Laws, c. 23, § 1.;

§ 4925A Severability.

Any section of this chapter being held invalid as to any person or circumstance shall not affect the application of any other section of this chapter that can be given full effect without the invalid section or application.

78 Del. Laws, c. 23, § 1.;

§ 4926A Date of effect.

This chapter shall take effect on the first day of the fiscal year following its enactment into law. If, however, the chapter, is not enacted before July 1, 2011, then the effective date shall be 90 days from enactment. [The chapter became effective on July 1, 2011.]

78 Del. Laws, c. 23, § 1.;

§ 4927A Background checks.

(a) A person required to obtain a background check under this chapter shall submit fingerprints and other necessary information to the State Bureau of Identification in order to obtain all of the following:

(1) A report of the person's entire criminal history record from the State Bureau of Identification or a statement that the State Bureau of Identification Central Repository contains no such information relating to that person.

(2) A report of the person's entire federal criminal history record from the Federal Bureau of Investigation pursuant to Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534) or a statement that the Federal Bureau of Investigation's records contain no such information relating to that person.

(b) The State Bureau of Identification shall be the intermediary for the purpose of subsection (a) of this section and shall forward all information required by subsection (a) of this section to the Department.

(c) The Department shall use the background check required by this section only to determine if the person required to obtain a background check meets the requirements of this chapter.

(d) A person required to obtain a background check under this chapter is responsible for any costs associated with obtaining the background check.

80 Del. Laws, c. 11, § 5.;

§ 4928A Research.

(a) Research for the development of well-characterized and more-defined medical marijuana products for treatment of target indications, including demonstrations of safety and efficacy for treatment of medical conditions that often fail to respond to conventional treatment, may be conducted in Delaware.

(b) Research performed under the authority of this chapter shall be conducted as follows:

(1) In a facility which meets FDA-accepted security and operational standards.

(2) Using practices and standards that ensure uniformity, consistency, reliability, reproducibility, quality, and integrity of data, including good laboratory standards (GLP) when required.

(3) On plants grown from well-characterized and well-defined seed stock.

80 Del. Laws, c. 115, § 2.;