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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 ceiling. ...
-- 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.
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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.
Cities and Counties are
empowered
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.
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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.
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SB
420 Basics (HS 11362.7)
