By Chris Conrad (c) 2004 , 2005, 2007
2003: State legislators get involved in implementation
Despite the law and rulings, patients continue to be arrested and prosecuted, even for small amounts. Senator John Vasconcellos and Assemblyman Mark Leno introduced California SB 420 in 2003, passed and signed into law as Health and Safety Code 11362.7, et seq. It expands the scope of activities protected under medical marijuana and formalizes the role of patient collectives. It also created a voluntary identification card system to protect against arrest but at the last minute they inserted low and non-scientific guideline amounts as a safe harbor from arrest. They explained the writing process in an open letter.
Fully appreciating that Proposition 215 cannot be amended by the Legislature, we have resisted all efforts to make the new identification card system created by SB 420 mandatory &endash; at least two times our SB 420 contains specific language declaring our intent that the program is wholly voluntary. …We tried to incorporate NIDA guidelines, but learned that they do not really exist in any form we could incorporate into SB 420; … We chose guidelines we believe best meet our search for balance between patient’s needs and practical results in getting SB 420 signed into law; (emphasis added)
In addition we allow localities with higher possession or cultivation amounts to retain them, and other localities to establish new guidelines which exceed what is set forth in this bill. No jurisdiction may establish guidelines lower than those set forth in SB 420;
In addition we provided individuals the option to get in excess of the guidelines upon a doctor’s recommendation for amounts exceeding the cultivation and possession guidelines set in this bill. Our letter in the Assembly and Senate Journals expresses legislative intent that these guidelines are intended to be the threshold, and not a ceiliing. …
– Sen. John Vasconcellos, Assemblyman Mark Leno, authors of SB 420,
Some points made above were put into the introduction to SB 420 but are not in the resulting legal code.
SB 420 SECTION 1. (b) It is the intent of the Legislature, therefore, to do all of the following:(1) Clarify the scope of the application of the act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.
(2) Promote uniform and consistent application of the act among the counties within the state.
(3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.
Local implementation is mandatory
To ensure that qualified patients, caregivers and collectives are protected all over the state, every county has been required to take steps to accommodate and implement the voluntary card system.
HS 11362.71.(b) Every county health department, or the county’s designee, shall do all of the following:(1) Provide applications upon request to individuals seeking to join the identification card program.
(2) Receive and process completed applications in accordance with Section 11362.72.
(3) Maintain records of identification card programs.
(4) Utilize protocols developed by the department pursuant to paragraph (1) of subdivision (d).
(5) Issue identification cards developed by the department to approved applicants and designated primary caregivers.
(c) The county board of supervisors may designate another health-related governmental or non-governmental entity or organization to perform the functions described in subdivision (b), except for an entity or organization that cultivates or distributes marijuana.
Creates limited immunity for sales, transportation and intent to distribute
One of the most powerful aspects of SB 420 is its inclusion of sections authorizing activities not included in Prop 215, such as intent to distribute, transportation, processing, sales and maintaining a place where cannabis is used or produced.
11362.765. (a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit.(b) Subdivision (a) shall apply to all of the following:
(1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use.
(2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver.
(3) Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person.
(c) A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360.
Patients, caregivers and cardholders
SB 420 preserves all Prop 215 rights and protects cardholders from arrest
Proposition 215 was a California voter initiative creating our state medical marijuana law, HS 11362.5, so the legislature cannot modify it directly.
Article 2 Section 10(c) The Legislature. . . May amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval. — California State Constitution, Art. 2 sec 10(c)
Senate Bill 420 is statutory law that created HS 11362.7 and 11362.8, subject to future modification by the legislature, for example to increase the guidelines in 2005 at the suggestion of the Attorney General. It established a voluntary and confidential patient ID card program administered by the Department of Health Services but not yet implemented. Among other things, this new law:
• Defines medical marijuana as dry mature female cannabis buds or conversion
• Creates two legal categories: “qualified patients” protected by Prop 215 and “persons with an identification card” with distinct rights and responsibilities
• Sets criminal penalties for abuse of the card system
• Allows cardholder-caregivers to have more than one patient in their home county, but only one patient from out of county
• Sets a default guideline of six mature plants and eight ounces of bud or conversion as a safe harbor from arrest for patients and caregivers with valid cards:
HS 11362.71(e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.(f) It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5.
HS 11362.77. (a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.
All state law enforcement officers must respect the voluntary ID cards
The problem of police continuing to arrest innocent patients is addressed, but only for cardholders and only up to the floor amounts in SB 420 unless a local jurisdiction allows larger amounts, or the patient has a physician’s note exempting them from the guidelines.
11362.78. A state or local law enforcement agency or officer shall not refuse to accept an identification card issued by the department unless the state or local law enforcement agency or officer has reasonable cause to believe that the information contained in the card is false or fraudulent, or the card is being used fraudulently.
ID card is a voluntary contract that couples protections with limitations
Prop 215 did not protect people from arrest, and it did not set any limits on gardens or dosages. The courts have held this to mean any reasonable amount accepted by a judge or jury. A person with a valid ID card, on the other hand, is immune from arrest — but only for these very small amounts of medicine: eight ounces of dry, mature bud or conversion and a garden with no more than six mature plants. For many patients, this is not enough, and the more cannabis a patient needs, the more vulnerable they are to arrest and prosecution. There are two immediate remedies to this problem.
Doctor’s exemption protects dosage
First, a physician may authorize unspecified amounts greater than the state and local guidelines.
HS 11362.77(b) If a qualified patient or primary caregiver has a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient’s needs.
Another provision protects the integrity of local medical marijuana guidelines around the state, which allowed up to three pounds and 100 square feet of canopy as in Sonoma and Humboldt Counties. Localities are empowered to adopt new guidelines, as long as the amounts are no lower than the state floor.
HS 11362.77(c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).
Why should any locality enact guidelines greater than the SB 420 floor? Because to do so is a cost effective, reasonable and compassionate. A cost effective policy saves on law enforcement and court resources and expense. A reasonable review shows that the specified floor amount is neither scientific nor adequate for many patients. A compassionate policy would stop arresting patients, leave them their medicine and not ruin them financially by causing prohibitive legal costs.
Cannabis coops and collectives: Where to get medicine
The Appeals Court Peron Decision
Obtaining cannabis is one thing, but sales are a different matter. The problem has to do with receiving payment for cannabis. Shortly after passage of Prop 215, an Appeals Court decided a case in which the initiative’s chief proponent, Dennis Peron, argued that he had a right to sell at his San Francisco dispensary.
Although the sale and distribution of marijuana remain as criminal offenses under section 11360, bona fide primary caregivers for section 11362.5 patients should not be precluded from receiving bona fide reimbursement for their actual expense of cultivating and furnishing marijuana for the patient’s approved medical treatment. …
Assuming responsibility for housing, health, or safety does not preclude the caregiver from charging the patient [59 Cal.App.4th 1400] for those services. A primary caregiver who consistently grows and supplies physician-approved or -prescribed medicinal marijuana for a section 11362.5 patient is serving a health need of the patient, and may seek reimbursement… .
We find no support in section 11362.5 for respondents’ argument that sales of marijuana on an allegedly nonprofit basis do not violate state laws against marijuana sales. No provision in section 11362.5 so states. Sections 11359 and 11360 explicitly forbid both the sale and the “giv[ing] away” of marijuana. Section 11362.5(d) exempts “a patient” and “a patient’s primary caregiver” from prosecution for two specific offenses only: possession of marijuana (§ 11357) and cultivation of marijuana (§ 11358). It does not preclude prosecution under sections 11359 (possession of marijuana for sale) or 11360(a), which makes it a crime for anyone to “sell, furnish, administer, or give away” marijuana (italics added). — (1997) 59 Cal.App.4th 1383, 70 Cal.Rptr.2d 20 [No. A077630. First Dist., Div. Five. Dec 12, 1997.]The “right to obtain” marijuana is, of course, meaningless if it cannot legally be satisfied. … Local governments in California are now exploring ways in which to responsibly implement the new law (as, for example, through licensing ordinances) so as to relieve those medically in need of marijuana but unable to cultivate it from the need to do so. I do not think we should make gratuitous blanket determinations which might prematurely interfere with those efforts. (Concurring opinion, Ibid.)
Based on that decision, cities like West Hollywood, San Francisco, and Arcata have allowed caregiver- and patient-run dispensaries to operate within their jurisdictions, although this has not prevented federal or state law enforcement raids. Oakland City Council has authorized four dispensaries to operate. The WAMM cooperative in Santa Cruz has an injunction against federal DEA raids at the time of this writing.
HS 11362.7 is even more clear in authorizing certain kinds of production, sales and distribution.
HS 11362.765. (a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit. … (b) …
(c) A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360. …
HS 11362.775. Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under § 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.
Organizing a collective or coop
After Prop 215 passed, patient cooperatives and collectives took root around the state, as noted above. There is no clear definition in the law as to what that means, but courts and communities are recognizing a broad array of arrangements. In general terms it constitutes a group of individual bona fide patients and caregivers working within a mutually agreed relationship as property holder, workers and patients who obtain cannabis. In some groups everything is voluntary, some have mandatory participation in the garden itself, and some have paid support staff. All require that the physician’s authorization be verified. Most require written, rather than oral, approvals and keep documents on at the garden and supply sites. Some seek the approval of a government agency, but many prefer to “fly under the radar” and provide information only as an affirmative defense after the fact.
Every qualified patient or arrangement thereof has a right to argue any quantity or arrangement under state law, but they still might lose in court. Those with valid identification cards are protected to the minimal extent in HS 11362.77(a) eight ounces, 12 immature or six mature plants per patient, (b) a physician’s exemption or (c) a local policy. In theory that means no arrest and no destruction of medicine. Collectives might follow pro-rata amounts, like 36 mature plants for six cardholders.
Unfortunately, the same records that may prove helpful in defending a collective under state law add greater risk under federal law.
Zoning, permits and taxes
Some cities have zoning and permitting laws that affect dispensaries. Cannabis is an over-the-counter medication, so the Board of Equalization requires sales tax.