As Posted on
thepinetree.net:
CALAVERAS MEDICAL MARIJUANA DISPENSARIES - A Primer: As we move headlong to the Jay Smith trial and doubtless will be seeing the same aggression against Gus Meyers for his Valley Springs collective, it is time
to examine the law.
Our county must be braced for the expensive litigation that is going to come our way, not to mention the wasted expense of prosecutions, so where do we stand in terms of the law?
When discussing Jay Smith and his collective distribution of medicinal cannabis, the the law, according to the two primary county law enforcement authorities is as follows:
“Quite frankly, it doesn't sound like (Jay Smith) was any part of a collective. With a collective there has to be a relationship of some sort. It can't be meeting somebody in a parking lot. In our opinion, you're just selling drugs.” - Sheriff Dennis Downum, Calaveras Enterprise - 4/13/10
“A lot of people think a cooperative, dispensary and collective are similar and surely that must be legal because there are tons of them in Oakland and San Francisco,” Matthews said. “That's the wrong assumption. “My view is that the dispensaries in the big cities, where a guy walks in off the street, shows his recommendation and buys an ounce of pot for $300 – that's not a legal sale,” Matthews said, adding that in order to sell another person with marijuana, one must be his or her primary caregiver. - Deputy District Attorney Seth Mathews, Calaveras Enterprise - 7/2/10
So is it true? Has Calaveras County been blessed with two brilliant legal minds that understand California law better than California's elected Attorney General, our appellate and supreme courts, and District Attorney's throughout the rest of California?
Medical Dispensaries do not operate in just "Oakland and San Francisco", as stated by Mathews.
Vehement anti-Prop 215 counties such as San Diego and Kern that have fought implementation of medicinal cannabis law all the way to the US Supreme Court have store front dispensaries open for business today. Dispensaries operate throughout the state, including within a crow's hop from our state capital building. Why? How? What is the law?
This primer is intended to help educate our local attorney's, law enforcement, and our community on California law and the collective and cooperative marijuana activities provided for by
The Compassionate Use Act (Prop. 215) and the
Medical Marijuana Program Act ( SB 420 - MMP).
For guidance on this issue, we can turn to two landmark decisions, the 3rd District Court of Appeal ruling in "People v. Urziceanu" and the California Supreme Court ruling People v. Kelly" and the supporting case law of those rulings and the Attorney General Guidelines for Medical Cannabis Patients (2008).
While an appellate ruling is non-binding, it is important to note the Calaveras County is within the purview of the 3rd District Court of Appeal, and as such holds their rulings holds that much more sway in application here.
There remains some some vagueness in the medicinal cannabis law, for the limited purpose and scope of this article, it is conceded or represented that the courts have consistently held:
1. Medical marijuana possession and cultivation is not a right conveyed by the voters, but rather, upon verbal or written recommendation of a physician for the use of medical marijuana, offers an affirmative defense to charges of violations of those laws.
2. Prop. 215 provided that TWO sections of state law shall not apply to “a patient” or “a patient’s primary caregiver” - those are the two sections related to possession and /or cultivation of marijuana for the “personal” medical use of “the patient.”
3. Prop. 215 did NOT alter the other statutory prohibitions related to marijuana, including those
that bar the transportation, possession for sale, and sale of marijuana.
4. Federal law DOES NOT preempt state law, and that police are obligated to uphold state and not federal law.(State and U.S. Supreme Court rulings)
5. The limits set by the MMP have been ruled an unconstitutional curbing of a voter approved amendment and patients maybe possess quantities consistent with their needs.
So where does that leave us?
Court rulings endangered the California's thriving medical marijuana industry; an industry accounting for millions and millions of dollars of local and state revenue.. The rulings essentially made "store front" distribution of medicinal marijuana illegal. Prop.215 provided that one of its purposes was to encourage the state and federal government to implement a plan to provide for the safe and affordable distribution of medical marijuana to those patients who need it.
The legislature responded to that edict and the the rulings by passing Senate Bill 420, the Medical Marijuana Program Act.
In the MMP , the Legislature sought to: “(1) Clarify the scope of the application of (Prop. 215) and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution" and to "Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.”
The MMP further evidenced “the intent of the Legislature to address additional issues that were not included within (Prop 215) and that must be resolved in order to promote the fair and orderly implementation of the act"
The MMP expressly expanded Prop. 215 beyond cultivation and possession of marijuana. In H&S section 11362.765, the law provides, “(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 (Possession), 11358 (Cultivation), 11359 (Possession for Sale), 11360 (Transportation), 11366, 11366.5 & 11570 (Maintenance of Location for Unlawful Activities/storage of controlled substance, and Nuisance laws).
The MMP went further in authorizing compensation for medical marijuana services in H&S 11362.765(c), “A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for (medical marijuana) services provided under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall NOT, be subject to prosecution or punishment under Section 11359 or 11360." The court ruled: "This section thus allows a primary caregiver to receive compensation for actual expenses and reasonable compensation for services rendered to an eligible qualified patient, i.e., conduct that would constitute sale under other circumstances."
So while Prop 215 did not authorize ""Possession for Sale" , "Operating place of business for distribution of marijuana", or reimbursement for services provided; the MMP DID.
The court ruled: "(The MMP) represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers. Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana."
In response to civil challenges, criminal court rulings, and the legislative intent of SB420, the California Attorney General published guidelines for the collective/cooperative distribution of medical cannabis via "store front" dispensary. Those guidelines stated: "Under California law, medical marijuana patients and primary caregivers may associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes.'” (§ 11362.775.) The following guidelines are meant to apply to qualified patients and primary caregivers who come together to collectively or cooperatively cultivate physician-recommended marijuana."
It should be noted that patients AND primary caregivers may associate together. This distinction is important because our law enforcement personnel are completely ignorant of that
distinction and repeatedly misstate the law.
Specifically, DDA Mathews stated that when he's in court, he asks individuals a number of questions to determine if they are a primary caregiver such as 'What do you do for this person? Do you provide meals? How often do you see them? What did you do when you saw them?' If they come up with nothing, we figure they are not their primary caregiver.”
That is completely irrelevant when discussing most collectives or the patients
operating them. Neither Smith, nor most other store front collectives/ dispensaries operate as primary caregivers, nor do they allege such. Most, including Smith, provide paperwork to members expressly stating that they are NOT acting as primary caregivers. They are PATIENTS collectively assembling for medical marijuana purposes, in accordance with state law. No where does the law state one MUST be a primary caregiver to collectively assemble, assemble, or to provide marijuana within a collective. Caregivers may assemble. Patients may assemble. Caregivers AND patients maybe assemble. If you meet any of those definitions you may collectively assemble for lawful medical marijuana purposes. For example, Smith is a patient, not a caregiver. As a patient, he may collectively assemble with other patients and caregivers
for medical marijuana purposes.
Our law enforcement agencies are purposefully ignoring law, precedent, and state guidelines when they prosecute defendants on the basis of the fact they are not "primary caregivers".
As a patient, what must one do in order to lawfully collectively cultivate and distribute marijuana? The Attorney General guidelines are very specific about their model for operating a marijuana dispensary:
1. The collective must ensure that there are safe guards to the disbursement of marijuana to non-patients.
2. A statutory cooperative must incorporate.
3. A collective or “a business, farm, etc., jointly owned and operated by the members
of a group.” should be an organization that merely facilitates the collaborative efforts of patient and caregiver members – including the allocation of costs and revenues. The collective should not purchase marijuana from, or sell to, NON-members; instead, it should only provide a means for facilitating or coordinating transactions between members.
4. It must be non-profit, but may be reimbursed for costs associated with the business.
5. It must comply with local and state licensing and tax laws, including a Sellers Permit.
6. It must have a membership application process, including verification and must maintain membership records.
7. Collectives should acquire, possess, and distribute only lawfully cultivated marijuana.
8. Provide adequate security and have procedures in place in the event members are found to be dispersing the medicine to non-members.
In conclusion, the rogue prosecution of lawfully operating medical marijuana patients in this county is at odds with the constitution, statutes, case law, and business models published by the state of California.
This county will doubtless be the subject to significant legal liability if it continues to operate outside the bounds of the law. One can contemplate that those liabilities could be in the
tens of millions of dollars. Our county is already laying off workers in essential services and there is no optimistic end of those cut backs in sight. The reefer madness of our rogue law enforcement is a luxury this county can no longer afford.
It can be appreciated that a minority opinion of those in this state oppose Prop 215 and subsequent laws and interpretations; however, it is in fact the law. If you don't like the law, you can work to change the law. But you cannot dictate the law via rogue law enforcement.
It is High Time Calaveras County law enforcement at least understand the law, accept it, and apply it.
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