Marijuana

Published on: January 14, 2020

Wicomico County May Criminalize Public Pot Smoking

Fruitland is a small Eastern Shore city located off of Route 13, just south of Salisbury and a few miles north of Princess Anne. As an incorporated municipality, Fruitland maintains a city council that can enact legislation, and a police department to enforce its laws. With a population of around five thousand residents though, it’s no surprise that major news headlines do not appear when Fruitland passes new laws. Last month, Fruitland lawmakers passed an ordinance making it a crime to smoke marijuana in public. There was little fanfare surrounding the passage of this law despite the fact that almost everything cannabis makes it to the various online news site. Last month there wasn’t a peep about the Fruitland law anywhere on the internets. But other local government agencies were paying attention, and now Wicomico County officials have proposed the same type of legislation to their respective lawmakers in the county council.

The State’s Attorney’s Office and the Sheriff of Wicomico County have asked the council to consider sprucing up the county’s marijuana laws in order to give police arresting authority for public marijuana consumption. In a time where marijuana laws are becoming more lenient some jurisdictions are pushing for the opposite. As a criminal defense lawyer Blog we are almost always on the opposite side of law enforcement when it comes to reforming drug laws. Public consumption of marijuana though is a complicated issue, and it’s hard to disregard either side of the argument. For starters, nobody should ever be subject to criminal prosecution and the potential for a jail sentence for smoking marijuana. At the same time, citizens have a right to object to being exposed to marijuana use when they are in public, and law enforcement has a right to speak for the public on this.

We have long since believed that marijuana should be treated the same as alcohol, as both are recreational drugs that people enjoy, and both cause impairment. The purchase and sale of both should be legal, taxed and regulated, and the public consumption of both should be unlawful but not punishable by incarceration. Public consumption of alcohol is a civil infraction under Maryland law, which is punishable by a fine, but certain municipalities have criminalized this offense. When examining the utility of a stricter statute for public consumption of marijuana we can easily look to similar alcohol ordinances for comparison.

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Published on: November 19, 2019

Marijuana Definition Change Could Lead To Dismissed Charges

By Benjamin Herbst

This past summer the Maryland Governor signed off on a bill that changed the definition of marijuana, and now the impacts of this bill could have a real effect in courtrooms across the state. The bill did not receive much media attention despite the fact that it was marijuana related because the bill was created with the intent to modify agricultural laws rather than continue to reform marijuana policy. House Bill 1123 was signed into law back in April, and went into effect on June 1, 2019. The bill was characterized as agricultural and focused on hemp research and production. It had numerous components, but the main emphasis was to expand hemp production and establish safeguards for assuring that hemp and marijuana remained two separate crops.

In order to separate hemp and marijuana, which is still highly regulated in Maryland and a controlled substance under federal law, the state legislature had to strictly define the meanings of the two crops. Lawmakers came up with a threshold amount of 0.3% THC to separate the two; any cannabis plants with a THC level above 0.3% would be classified as marijuana while anything under would be classified as hemp. In establishing this threshold, lawmakers not only changed the agricultural laws but also were forced to modify the Maryland controlled dangerous substance laws. Under criminal law section 5-101, marijuana does not include hemp for the purpose of criminal prosecution. Hemp as defined in section 14-101 of the agriculture code “means the plant Cannabis sativa L. and any part of that plant, including all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta–9–tetrahydrocannabinol concentration that does not exceed 0.3% on a dry weight basis”. This fancy language boils down to the fact that cannabis plants that do not have a THC over 0.3% are not marijuana for the purpose of a criminal prosecution, and the impacts of this clause could be huge.

In all drug crimes cases the state is required to prove beyond a reasonable doubt that the substance that is the basis of the charging document is actually what the police say it is. It is not proof beyond a reasonable doubt for an officer to simply look at a substance and say that it is cocaine, heroin, marijuana etc. The state has to test the substance police take in evidence, and this is traditionally done is by sending it off to the crime lab at the Maryland State Police in Pikesville or the city’s lab in Baltimore. Chemists do their tests and send a lab reports to the prosecutor, which are then introduced into evidence as proof the substance is CDS. But, the kicker is that the crime labs do not test marijuana for THC content, so now there might not be a way for the state to prove beyond a reasonable doubt whether the green vegetable matter police confiscated from your plastic baggie, jar or personal grow room is marijuana or hemp.

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Published on: September 24, 2019

Medical Marijuana Still Growing

By Benjamin Herbst

As we approach the two-year anniversary of the first medical marijuana sales in Maryland all signs point to the program’s continued growth. On December 1^st of 2017 dozens of patients lined up at a Montgomery County dispensary to become the first purchasers of legal cannabis in the state. The Rockville dispensary stocked its shelves as soon as the products arrived that Friday afternoon, and there has been no looking back since then. Close to 20,000 patients signed up to legally purchase when the program began, and now that number is approaching 60,000. According to the MMCC (the state organization that oversees medical cannabis) between 250 and 350 new patients apply for their cards each day. If these numbers continue there could be a quarter of a million medical marijuana patients in the Maryland within the next couple of years.

In 2018 state dispensaries sold close to 100 million dollars worth of medical marijuana to patients. Revenue totals for 2019 won’t be released until the winter, but officials expect a 50 percent increase, which would bring revenue to about 150 million dollars. The temporary ban on out of state purchases may slow revenue numbers a tiny bit, but we believe the estimations are still on the conservative side, and that a 2019 revenue total of 200 million dollars is not out of the question. With increased sales come increased employment opportunity, and the larger dispensaries can easily employ over 50 full timers. A large Allegany County dispensary reports that it employs 90 people full time, and is currently planning an expansion. Along with more jobs at the grow houses and dispensaries, medical marijuana is also expanding the roles of caretakers who are able to administer cannabis to their own patients. As of now there are about 5,000 caretakers registered with the state to provide medical cannabis that is prescribed by the 1,300 licensed medical professionals approved by the MMCC.

At this point the only thing that could possibly derail the steadily increasing number of medical marijuana patients would be legalization. In states where pot is legal for recreational use, medical patients are typically able to purchase more powerful products for cheaper prices, but this incentive is often outweighed by the hassle (however small) and privacy concerns over becoming a registered patient. Some potential patients continue to express concerns about their ability to purchase firearms if they were to register for medical marijuana, as federal law prohibits any drug user from purchasing or possessing a firearm. As long as marijuana is classified as a controlled substance under federal law, medical users could be at risk of federal prosecution. The federal government is far more concerned with firearms falling in the hands of those disqualified by previous criminal convictions, and rightly so, but many potential medical marijuana patients still feel they must choose between cannabis and firearm ownership. Other potential patients are against their name being listed in a government database for marijuana use, and would simply prefer to be able to walk into a store anonymously and purchase cannabis products.

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Published on: August 19, 2019

Marijuana No Longer Grounds For Personal Search

By Benjamin Herbst

Maryland’s highest court recently ruled that law enforcement officers are no longer permitted to search a person who is in possession of less than 10 grams of marijuana. The case came to the Court of Appeals after a Silver Spring man was arrested for possession of cocaine with intent to distribute, and later pled guilty to this charge in the Montgomery County Circuit Court. The guilty plea was entered conditionally pursuant to the Maryland rules, which allows a defendant to withdraw his or her plea if an appeal is successful down in road. In this case the defendant argued the search of his person was illegal and moved to have the cocaine suppressed, but the circuit court judge did not agree and the Court of Special Appeals, Maryland’s intermediate appeals court in Annapolis, didn’t buy the argument either. Both lower courts sided with the state that the search of the defendant was incident to a lawful arrest, and in doing so relied upon case law from the days before possession of marijuana under 10 grams became decriminalized.

The crux of the defendant’s motion was logically sound, but the case law just wasn’t’ there for the defendant’s attorney to make a bulletproof argument. The defendant argued that Montgomery County police officers did not have probable cause to search the his person based on their observation of a half smoked joint in his car. The officers testified that all they smelled was the odor of burnt marijuana and all they saw was the joint, and they not offer any evidence that led them to believe there was more than 10 grams of marijuana in the car. Possession of less than 10 grams has been classified as a non-arrestable civil infraction for the last few years. The Supreme Court has long held that you cannot have a valid search incident to arrest if you don’t have a valid arrest in the first place, and this is exactly what transpired. In fact, one officer testified the defendant was arrested for possession of cocaine, but also agreed that he did not find the cocaine until the defendant was placed under arrest. Given the unequivocal testimony of the state’s witnesses it is somewhat surprising that the two lower courts did not side with the defendant, but again, the Maryland case law was not there yet.

The Court of Appeals reminded us that the police officers still maintain the lawful ability to search the defendant’s car regardless of whether officers believe a criminal act is in progress. Marijuana might be decriminalized, but it’s still illegal to possess in any amount without a medical use card, and as such is classified as contraband. The automobile exception has long since limited the amount of privacy we have in our cars, especially while in a public parking lot. If police observe a person with contraband in a car they will almost always perform a search, as this is how many larger drug and gun cases begin. Had the cocaine been anywhere in the defendant’s car the search, arrest and conviction would have been valid and upheld, but the fact that it was in his pocket made all the difference in the world. The defendant in this case received a felony conviction and a partially suspended sentence, but now the high court’s ruling will reverse the conviction. The defendant may have already served his sentence, but the bigger picture is the establishment of a clear rule that a suspect may not be searched based on the observance of a non-criminal amount of marijuana.

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Published on: May 13, 2019

D.C. Mayor To Battle Congress Over Marijuana

By Benjamin Herbst

Over four years ago Washington D.C. residents voted to legalize marijuana by a majority of almost two to one, but reality set in soon after the celebrations ended. The natural progression of marijuana legalization (the path Maryland is currently traveling) begins with decriminalization, then the establishment of a medical program and finally full-blown legalization. D.C. seemed to be headed toward the ultimate goal of legalization when Initiative 71 passed, but Congress had other ideas and the progression stalled. The main opposition for legalized marijuana in D.C. came from a Maryland congressman with an M.D. from Hopkins, who has described cannabis as a gateway drug with no proven medical use. This congressman used his influence to insert language in the federal spending bill for D.C., which prohibits the local government from spending federal money on a program that regulates and taxes the recreational sale of marijuana. It was further established that any member of the Washington D.C. government faced prosecution from the Justice Department for spending federal money on legalization, and thus Initiative 71 became all bark and no bite.

You could call Initiative 71 a partial victory, as it ended local criminal prosecution for possession, use and cultivation of marijuana, but to this day there is no legal means to purchase marijuana without a medical license. As a result citizens are forced to illegally purchase a substance that is technically legal, and has been for four years. The whole situation seems like politics at its worst; a congressman from another jurisdiction with strong views has exerted his power over the will of the people because he simply knows better. It’s actually quite frustrating, but it seems the local government in D.C. is not giving up. Last week the mayor revealed a bill that attempts to once again establish a clear path for the District to begin a fully functioning recreational marijuana program. The bill, entitled the Safe Cannabis Sales Act of 2019, aims to topple the illegal marijuana market in the city that is dangerous for residents who are lawfully permitted to use cannabis. A 17% tax on recreational sales would apply, and recreational businesses would be required to employ at least 60% D.C. residents. The purchase of up to one ounce of flower per day would be permitted, as well as limitations on the daily purchase of concentrates and edible products. Tax revenue, would be reinvested in the District’s affordable housing programs and other programs designed to benefit residents.

The D.C. government is confident that their work toward legalization does not constitute a violation of the federal spending limitations, but the program will not get off the ground absent changes in Congress. The Maryland lawmaker originally responsible for the flame out of Initiative 71 has reiterated his disapproval of the Mayor’s efforts in a stern statement. He reaffirmed his believe that recreational marijuana is poor public policy and not so subtly requested that the Mayor respect the Constitution, which gives Congress authority over the District. The statement reads like a threat from a power hungry politician that feels his authority has been questioned.

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Published on: April 11, 2019

Legislative Session Ends Without Fireworks

By Benjamin Herbst

The 2019 Maryland legislative session has come to an end, and unlike previous years where marijuana was decriminalized or mandatory prison sentences for certain drug offenses were effectively discarded, there will be no drastic changes to the criminal code come October. While not headline makers, lawmakers did successfully address some minor offenses such as gambling and possession of alcohol, and changes are on the horizon. We previously wrote about a bill that proposed to decriminalize small time gambling, which in our opinion was long overdue. With state casinos booming, and sports betting on the verge of becoming legal in Maryland it really makes zero sense to impose criminal sanctions on citizens engaged in unlawful gambling. Both houses agreed and passed the bill that will now punish illegal gamblers with a civil citation and a fine, rather than a potential misdemeanor conviction and jail time. Anyone caught running an unauthorized casino or taking bets as a bookie still faces criminal liability, though lawmakers did away with the archaic 6-month mandatory minimum penalty. The maximum fine for civil gambling offenses will be $500 if less than $100 is at stake or $1,000 if more than $100 is at stake. Illegal gambling cases were not common to begin with, but now police will be even more motivated to look the other way.

Lawmakers also passed legislation that will make consumption of alcohol in public and possession of an open container a civil infraction rather than a criminal misdemeanor. The $100 fine will remain the same, but offenders no longer run the risk of a criminal conviction for drinking a beer, wine or liquor in public. This bill does not directly impact citations for minors in possession of alcohol, which will remain a civil infraction with a potential $500 fine for a first offense. Each of these civil infractions may be prosecuted by the local State’s Attorney’s Office, which is generally a good thing. The SAO has the ability to offer some sort of pre-trial diversion such as community service or alcohol education in exchange for a dismissal, while a district court judge has no such ability. The passage of this bill may affect the way open container violations are handled in local jurisdictions such as Ocean City. Previously public consumption or possession of an open container of alcohol was punishable by jail time in Ocean City, and police officers of this popular summer destination had the authority to arrest those, who for example were leaving Secrets with a drink in their hand. The Blog will pay attention to the local code to see if the city counsel is forced to make any changes to the existing laws regarding alcohol.

There was a lot of talk before the 2019 session began that the threshold of criminal possession of marijuana would be raised from 10 grams to one ounce (28 grams) but this change may not be on the immediate horizon. In addition to raising the lawful possession threshold, a Montgomery County lawmaker also proposed to allow adults over the age of 21 the right to use marijuana, to possess up to 5 grams of marijuana concentrates, and to cultivate up to 6 marijuana plants in their homes. The proposal was in the form of a constitutional amendment that would be put to a vote in this year’s general election.

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Published on: February 14, 2019

Marijuana Still Looming Large In Annapolis

By Benjamin Herbst

Marijuana has been a major issue for state lawmakers in almost every recent legislative session, and this year is shaping up to be no different. Despite all the progress over the last five years in crafting state marijuana policy there are still numerous key issues that have yet to be settled. Without a doubt the headliner is the legalization of recreational use, but realistically 2019 does not appear to be the year where it’s going to happen. Legalization aside, there are still smaller points that need to be addressed, and many will be debated in Annapolis over the coming weeks.

One of the most common questions defendants ask is whether their probation can be violated for testing positive for marijuana. The simple answer is that a positive THC test can subject a defendant to a violation of probation, but what happens after a violation is submitted depends on a variety of factors. A standard condition of all Maryland probation sentences is that the defendant shall not illegally possess or use controlled substances, and marijuana is still a controlled substance in our state. A defendant who does not have a state medical cannabis license could easily be subject to violation of probation sanctions for a positive test, or even a civil possession citation. Obtaining a medical license could create a defense that the marijuana was possessed and used legally, but the idea for medical users is not to be violated in the first place. Licensed medical patients may be better off informing their probation officer ahead of time, rather than attempting to explain a positive test after the fact. The flip side is the argument that being a medical cannabis patient is protected health information that defendants should not be required to disclose. The reality is that probation officers and the courts have bigger things to worry about, and lawmakers have taken notice.

Rather than continue the back and forth over a substance that will likely become legal in 2020 one lawmaker has introduced a bill that would bar a positive marijuana test from being considered as violation of parole, probation and pre-trial release. There are exceptions to this rule such as when the judge specifically orders the defendant to abstain from the use of marijuana, but overall this law would clear up a great deal of confusion and alleviate an unnecessary burden on the courts. The same bill also proposes that the threshold for a criminal versus civil infraction for illegal possession of marijuana be increased from 10 grams to 1 ounce (28 grams). This proposal has been debated in other legislative sessions, and almost became law last year. Though it may not end up being a hugely impactful change, certain lawmakers have repeatedly questioned the arbitrary nature of a 10-gram limit. This bill also includes language creating a presumption that possession of less than an ounce does not support a felony charge for possession with intent to deliver, but the State could rebut this presumption with specific evidence of dealing.

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Published on: January 30, 2019

Baltimore City Prosecutor Ditching Pot Possession Cases

By Benjamin Herbst

Baltimore’s top prosecutor recently announced that her office will no longer prosecute marijuana possession in the city effective immediately, and additionally will vacate nearly 5,000 prior possession cases dating back to 2011. The announcement, which was posted on the Baltimore City State’s Attorney’s website has already generated national headlines. Both CNN and the New York Times have published articles about the announcement, and local news stations were on hand to televise a follow-up press conference. The 39-year old chief prosecutor stated that pursuing marijuana possession cases offers no public safety value, erodes public trust and diverts valuable police resources away from more important cases. Additionally she stated there is no association between marijuana possession and violent crime, and that these possession cases disproportionally targeted communities of color. The office will continue to prosecute distribution and possession with intent to distribute marijuana cases as long as there is additional articulable evidence of dealing. Each of these crimes is a felony under Maryland law, but first time offenders in Baltimore City will now be offered diversion and given the opportunity to have their cases dismissed and expunged.

While some members of the community lauded the prosecutor’s decision, other government officials didn’t just jump onboard with her plan. In the press conference the prosecutor called on the local law enforcement community to join in and focus their attention and resources on violent crime, but the city’s top cop didn’t bite. The interim police commissioner publicly voiced his disapproval of the State’s Attorney’s plan, and declared that his officers will not be directed to discontinue arresting or citing individuals for possessing marijuana in the city. The interim top cop, who will be replaced in the coming months by an out of state successor, said in no uncertain terms that his officers will continue to enforce state marijuana possession laws. He went on to say that the last thing the city needs is another illegal substance, and added that he and his colleagues absolutely see a link between violent crime and marijuana. The interim commissioner didn’t explain how the two are linked other than to say that his commanders see it all the time in Baltimore.

There is little doubt that police officers in Baltimore and throughout Maryland have deemphasized marijuana possession cases. Law enforcement still uses pot as a means to gain access to vehicles and justify searches of a person, but there are fewer possession cases showing up in court. The fact that the interim police commissioner came out so strong so soon against the City State’s Attorney seems more like a defense of the department’s autonomy. The commissioner in essence was stating that no lawyer could tell him and his officers which laws to enforce and which laws to ignore. Logically speaking, there is absolutely no reason why a city cop should charge someone with possession of marijuana if the case won’t be prosecuted. It would be hard to find a worse way to spend tax payer dollars and tie up police resources than to charge someone in a case that will undoubtedly be dismissed, but politicians will be politicians. And speaking of politicians, the Mayor came out with a statement that unsurprisingly supported both sides and avoided offending either. Rather than take a stance the Mayor’s office played politics and stayed neutral.

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Published on: January 22, 2019

2019 Legislative Session Underway

By Benjamin Herbst

The 2019 Maryland legislative session is officially underway, and once again gambling and marijuana are set to take stage as two of the highest profile issues this winter. Healthcare, minimum wage and clean energy will grab occasional headlines, but the Blog will stay in its lane and only offer commentary on the criminal related issues set for debate in Annapolis. Marijuana seems like the less complex of the two criminal law topics because there’s really only one major question, to legalize or not to legalize. There is no doubt that recreational marijuana will one day be legal in Maryland, but it’s far too early to tell if this is a realistic possibility in 2019. Those who have been following the slow progress of state cannabis law believe 2020 is the more likely year for recreational sales to debut. Legalizing recreational use will certainly not be the only marijuana issue up for debate, as lawmakers will be forced to deal with lingering medical marijuana questions such as limiting the ability of large national corporations to buy out or undercut local grow operations and dispensaries. There will also likely be a host of issues tossed around pertaining to the number of grower and dispenser licenses that are available, and when these licenses can be issued.

As usual, the Blog will stay on top of all things cannabis in this year’s legislative session, but sports gambling may actually produce more headlines coming out of Annapolis. Maryland clearly missed the boat on taking advantage of a recent Supreme Court decision that made it unconstitutional to prohibit states from offering legalized sports gambling. New Jersey and neighboring Delaware were ready to pounce as soon as the decision came down, and their sports books were up and running within weeks. Both states have been raking in tax revenue for almost a year now, and casinos and racetracks in these states will be jam packed on Super Bowl Sunday (likely with a number of Maryland residents). In order to make up for the lack of foresight of previous lawmakers this year’s Senators and Delegates may try their hand at bending the State Constitution to legalize sports gambling earlier than once thought possible.

The State Constitution specifies that major expansion of commercial gambling must be a decision left up to voters by way of a referendum. The last referendum took place in 2012 when voters approved table gaming such as blackjack and poker and green-lit the new MGM National Harbor Casino in Prince George’s County. There were no gambling referendums in 2018 and the next chance to hold one will be in 2020, though many feel this is too long to wait due to the amount of revenue at stake. One potential solution could be to place sports gambling under the control of the state lottery, and treat wagering as just another lottery game. But taking bets on the Patriots to win the AFC is much different than selling Ravens scratch-off tickets, which is why the proposal could end up sparking intense litigation. And even if this lottery idea passes the General Assembly and is signed by the Governor, there is no guarantee that any bets will be placed before a potential 2020 referendum, as implementing new programs quickly and efficiently is not one of Maryland’s fortes. There are too many regulatory issue to be hammered out, and simple questions such as where betting would take place and potential tax percentages are yet to be answered.

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Published on: December 6, 2018

Medical Marijuana Sales Shattering Expectations

By Benjamin Herbst

Just one year ago dozens of medical marijuana patients lined up outside a Montgomery County dispensary to make the first legal pot purchases in Maryland. This past Saturday marked the official one-year anniversary of those historic medical cannabis sales, and business is now booming for the industry. The Maryland Medical Cannabis Commission or MMCC originally estimated first year sales to total $46 million, but now it looks like their prediction was off by a wide margin. After posting modest revenue of $1.8 million in the launch month last year, revenues then increased dramatically each month thereafter. January produced $2.6 million in revenue, February jumped to $3.8 million, and March to $5.5 million. This August and September both produced total revenues over $10 million and the numbers continue to climb. At this point it is a not so conservative estimate that sales for 2018 will top $100 million, more than twice the number thrown out by the MMCC.

The revenue prediction from the MMCC was hardly a guess and likely based on data such as polling of potential patients and comparing revenues from other states. Though regardless of their scientific approach it’s easy to see how the state drastically underestimated the power of its own program. Most people just don’t want to talk about their marijuana use to those outside their close circle of friends, and they especially don’t want to discuss it with the government. Unfair as it is, there is still a major negative stigma attached to marijuana that alcohol has managed to avoid. In America it’s still perfectly acceptable to have a few beers after work, but take a puff or two and all the sudden you are a drug user. Numerous private companies and government agencies have drug polices that prohibit marijuana use, and a soldier can easily be kicked out of the military for casual consumption. While half the states have legalized medical cannabis, the professional world hasn’t caught up, thus it’s still not completely acceptable to use this natural product with medicinal value. Patients and social users still have much to lose by talking freely about their use.

Other reasons for the staggering revenue reports have to do with geography, as Maryland is surrounded by states to the south that have not yet fully embraced the medicinal value of cannabis, and will likely be some of the last to allow legal use. Virginia and North Carolina technically have medical marijuana programs, but access is more difficult and may be limited to CBD and low THC products. Maryland allows out of state residents to obtain a license and make purchases, and the process is not difficult or expensive. In addition to physicians, nurse practitioners, dentists and other professionals have the authority to prescribe medical cannabis and many do not require lengthy and comprehensive evaluations. The state has made it quite simple to obtain approval to purchase.

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