On June 14 the sponsors of the medical cannabis bill in the New York State Assembly and Senate introduced a new version of the bill.
This bill is worse than no bill. It would be best if this bill does not pass. Unfortunately, Jeff Klein, the leader of the independent bloc of Senate Democrats who are in a power-sharing arrangement with the Republicans, is now a co-sponsor of the bill. I expect Klein’s imprimatur may push this version of the bill to the full Senate for a vote.
This bill is a disaster and will set back reform in New York for years. All reform advocates should pray that the bill dies so that the way will be clear in the next legislative session to push for general legalization.
Arbitrary limit of ten manufacturers
Section 3366 now sets an arbitrary cap of ten cannabis growers for the first two years. Section 3364(6) requires that all cultivation take place in an enclosed facility, e.g. a greenhouse. So now there is an arbitrary limit of ten manufacturers for the entire state? The huge consumer population of City of New York alone will need ten manufacturers, unless all ten are immense factories that can operate indoors. The practical effect will mean that the only applicants will be giant operations requiring immense capital and foreclosing small entrepreneurs. This provision and the union labor requirement described below lead me to conclude that the goal of the new bill is to put control of the cannabis industry into the hands of big corporate interests.
There is no basis for the ten-grower limitation. It will have the same function as the system in New Jersey, which, although not the same form of obstacle, is to create a system that will inhibit interest in entering the market and will be inherently inadequate to meet the needs of New Yorkers.
The original version of the bill delegated to the Commissioner of Health the authority to deny an application for licensure on the grounds that licensure is not within the public interest. That should have been sufficient.
Requiring that all Registered Organizations enter into collective bargaining agreements with unions
The bill now requires at Section 3365(1)(A)(V) that a Registered Organization demonstrate that it has entered into a “labor peace agreement” and states that such agreement is a requirement for maintaining a license to operate. Section 3365(5) provides that the Commissioner may deny renewal of a license if s/he finds that the Organization has violated or terminated the “labor peace agreement.” Subparagraph (6) provides that the Commissioner shall revoke a license upon finding that a Registered Organization has violated or terminated a “labor peace agreement.”
The pretext for requiring a “labor peace agreement” is a never-seen-before legislative finding that the state has a significant interest in ensuring that no labor-management conflict impairs the financial viability of a Registered Organization. Section 3360(14) defines a “labor peace agreement” as an agreement between an “entity” and a labor organization that prevents the picketing, work stoppages, boycotts and other economic interference with the Registered Organization’s business.
Although this device is articulated as a mechanism for protecting a Registered Organization, it is nothing of the sort. Examination of Section 3365(1)(A)(V) demonstrates what it really is – a requirement that all Registered Organizations of whatever size use union labor. That section states that the applicant for a license demonstrated that it has executed a “labor peace agreement with a bona-fide labor organization that is actively engaged in representing or attempting to represent the applicant’s employees.” In other words, Registered Organizations must use employees who are represented by a union.
I have been informed that the requirement to enter into a labor peace agreement applies only if the Registered Organization seeks to use union labor. I don’t read it that way. At a minimum, it is highly ambiguous and will be a litigation factory.
Section 3364(1)(A)(V) provides in full:
1. APPLICATION FOR INITIAL REGISTRATION. (A) AN APPLICANT FOR REGISTRATION AS A REGISTERED ORGANIZATION UNDER SECTION THIRTY-THREE HUNDRED SIXTY-FOUR OF THIS TITLE SHALL FURNISH TO THE DEPARTMENT A DESCRIPTION OF THE ACTIVITIES IN WHICH IT INTENDS TO ENGAGE AS A REGISTERED ORGANIZATION AND ANY INFORMATION THE DEPARTMENT SHALL REASONABLY REQUIRE AND EVIDENCE THAT THE APPLICANT:
(V) HAS ENTERED INTO A LABOR PEACE AGREEMENT WITH A BONA-FIDE LABOR
ORGANIZATION THAT IS ACTIVELY ENGAGED IN REPRESENTING OR ATTEMPTING TO
REPRESENT THE APPLICANT’S EMPLOYEES. THE MAINTENANCE OF SUCH A LABOR PEACE AGREEMENT SHALL BE AN ONGOING MATERIAL CONDITION OF CERTIFICATION.
What does that look like to you? When I see that a labor peace agreement is a condition to licensure, I naturally conclude that execution of a collective bargaining agreement is also a condition to licensure.
If so, this requirement can be understood as a ploy to ensure that only large corporations can operate as Registered Organizations, naked and reprehensible protectionism.
Elimination of an affirmative defense for any patient or designated caregiver without a card
Perhaps the most vile and reprehensible aspect of the new bill is the deletion of the text that previously appeared at Section 3369(2). That section provided that a patient or designated caregiver who does not have a card from the Department of Health can still present the affirmative defense of medical use “to any prosecution for violation of state law for actions and conduct that is otherwise consistent with the certified medical use of marihuana as defined under this title.”
The essential function of a medical cannabis law is to codify in a statute a “medical necessity defense” to a criminal prosecution for a cannabis crime. In other words, if someone is prosecuted for growing cannabis, the defendant can argue that s/he should be exempt from criminal liability because he was doing what he was doing in order to protect his health (or, possibly, as described in footnote 1, the health of others).
The “medical necessity defense” for cannabis first emerged in 1976 in the decision of US v. Randall. Jurisdictions around the United States followed Randall, recognizing the medical benefits of cannabis for a variety of medical conditions, some of them life-threatening. (Analysis I wrote on the subject of the medical necessity defense for a memorandum of law appears at footnote ) The decisions referenced at the end of this post were judge-made law, in which a court decided to exempt the defendant from criminal liability upon a showing of medical necessity.
Necessity has also been seen in the law as a form of excuse. Under this view, criminal responsibility arises upon the performance of every willed action, regardless of the underlying reason of the underlying reason for the choice. The actor may be excused from punishment for public policy reasons, but not because he was without blame. Thus, although guilt is established punishment is not required because of extenuating circumstances which mitigate the seriousness of the offense. Under this theory, the necessity defense must be applied on a case by case basis rather than by reason of a general rule.