Patient Tips
Source: CALIFORNIA NORML
ADVICE FOR MEDICAL MARIJUANA PROVIDERS
CAREGIVERS
A "primary caregiver" is
narrowly defined under Prop. 215 to be "the individual
designated [by a legal patient] who has consistently assumed
responsibility for the housing, health, or safety of that
person." The law does not explicitly allow patients to have
multiple caregivers. In contrast, a caregiver may serve more
than one patient.
The State Supreme Court has
ruled that defendants are not entitled to a caregiver
defense if all they do is grow or supply medical marijuana
to patients. In the case
People v. Mentch (2008), the court ruled: "a defendant
whose caregiving consisted principally of supplying
marijuana and instructing on its use, and who otherwise only
sporadically took some patients to medical appointments,
cannot qualify as a primary caregiver." The court went on to
specify: "a defendant asserting primary caregiver status
must prove at a minimum that he or she (1) consistently
provided caregiving, (2) independent of any assistance in
taking medical marijuana, (3) at or before the time he or
she assumed responsibility for assisting with medical
marijuana."
A provision in SB 420 forbids
caregivers from having more than one patient outside their
own "city or county." The constitutionality of this
provision is questionable because it appears to restrict
Prop. 215; also, the limitation to a single "city or county"
is ambiguous. So far, no appellate court has ruled on the
legality of this restriction; while it is included in the
Attorney General's guidelines, it has been disregarded in
some lower court rulings. Until this legal issue is settled,
prospective caregivers are advised to be cautious about
trying to serve many clients outside of their "city or
county."
In general, the courts have
held that cannabis clubs cannot serve as legal "primary
caregivers" for large numbers of patients. Some persons have
claimed caregiver status while growing for multiple numbers
of patients on the theory that they are providing for their
patients' health or safety. This defense has been
successful in court for caregivers growing for small numbers
of patients. However, it was rejected by a state court of
appeals in the Peron decision, where the court held that
Peron's San Francisco Cannabis Buyers' Club could not
reasonably claim to function as a "primary caregiver" for
its 8000 clients.
In general, dispensaries who
cater to walk-in clients should not hope to rely on the
caregiver provision. Caregiver growers should limit
themselves to a select membership list of patients whom they
personally know and who do not have other caregivers.
Within these constraints, SB 420 allows caregivers to be
compensated for the costs of their services, but it does NOT
authorize sale of the marijuana itself for profit.
DELIVERY SERVICES
Although state law has no
explicit provision for delivery services, they can be
justified on the grounds that many patients lack
transportation and cannot grow for themselves.
One way of setting up a
delivery service consistent with state law is to act as a
"primary caregiver." In this case, the caregiver grows the
marijuana and delivers it to the patient. It is an unsettled
question whether primary caregivers can buy medicine from
outside sources. Although there is no provision in the law
explicitly outlawing such purchase, the Attorney General's
guidelines disallow it. Theoretically, the caregiver should
not charge for the marijuana itself, but rather for his or
her time and costs in providing it.
Note that the caregiver
should "consistently" provide for the patient's needs, and
that multiple "primary caregivers" are not authorized in the
law (see above).
The second way to organize a
delivery service is as a non-profit cooperative or
collective: in this case, the management should be in the
hands of the membership, not a single individual. (See
definitions of collective and cooperative above.)
COLLECTIVE CULTIVATION & POSSESSION
GUIDELINES
Prop 215 allows individual
patients and their caregivers to possess & cultivate as much
as required for the patient's own medical use. Because this
criterion is vague and open to differing interpretations, it
is difficult for patients and police to judge beforehand
whether a particular garden is legal. All too frequently,
police take a stingy interpretation of the law and bust
patients or caregivers for gardens they deem excessive, thus
leaving the matter to be settled in court at the defendant's
expense.
In order to reduce
uncertainty and avoid unnecessary arrests, SB 420
established "limits" or guidelines as to how much marijuana
patients and their caregivers could grow and possess. The
state default SB 420 guidelines are 6 mature plants or 12
immature plants per patient, and 8 ounces of dried marijuana
bud or equivalent. Individual counties and cities are
allowed to set higher but not lower limits (
list of local SB 420 guidelines). Individual patients
may exceed the guidelines if they have a doctor's note
saying they need more; in practice, however, police
routinely ignore this exception.
The validity of the SB 420
limits was thrown into question by two state
appellate court decisions , People v Kelly and People v
Phomphakdy (2008), which ruled that they were
unconstitutional limitations on Prop. 215. Both decisions
are under review by the State Supreme Court. We believe the
ultimate resolution of these decisions is likely to be that
the SB 420 guidelines are not legally determinative of guilt
in court, but that they can still be used by law enforcement
as guidelines for when to arrest people. Regardless, in the
meantime, growers are well advised to adhere to the
guidelines to the extent possible.
The question remains as to
how much medical marijuana cooperatives and collectives are
allowed to grow or possess. According to the AG's
guidelines, they can scale the SB 420 limits in proportion
to the number of their members. For example, under the
standard state guideline, a coop with ten members could have
ten times the limits, i.e. 60 mature or 120 immature plants
and up to 80 ounces of marijuana. However, some counties and
cities have established a maximum cap on the size of
collective gardens: for example, San Francisco does not
allow more than 99 plants in any case.
In general, collectives are
advised to exercise caution about growing very large
gardens. Even if local guidelines permit it, don't assume
that you can safely grow 600 plants just because you have
100 patients. Beware that cultivation of 100 plants or more
is punishable by a federal mandatory minimum sentence of 5
years. Collectives are accordingly well advised to stay at
99 plants or less to reduce the risk of federal prosecution.
LOCAL REGULATION
Despite the federal
illegality of dispensaries, many cities and counties have
enacted ordinances aimed at licensing or regulating them.
Many others have banned them altogether. Some cities, such
as Los Angeles, have enacted moratoriums banning new
dispensaries while allowing existing ones to operate. (Los
Angeles
has begun to review exemptions to the moratorium.)
Others, such as Oakland, have put a cap on the number of
licensed dispensaries. Strict zoning regulations are in
effect in many localities, preventing siting near schools or
too close to other dispensaries. Other regulations that have
been adopted include banning on-site consumption and
limiting the quantity of marijuana that can be sold or kept
on hand. In some cases, regulations have been deliberately
devised to be so strict as to preclude dispensaries from
operating.
It is important that
cooperatives and collectives consult local regulations
before trying to set up operation. ASA has
a
list of Local California Dispensary Regulations;
(however this list may not be up to date, check with local
authorities (4/09).
Anyone interested in opening
a medical cannabis facility should be wary about alarming
local authorities. Many towns have moved to ban dispensaries
after receiving inquiries from prospective operators.
However, anyone planning to open a storefront dispensary
should seek a business license and comply with local zoning
regulations. It is especially important that dispensaries be
appropriately sited so as not to disturb neighbors.
Neighborhood complaints are the number one cause of police
raids.
COLLECTIVES AND COOPERATIVES
The law explicitly allows
distribution of medical marijuana through non-profit
"collectives" or "cooperatives." This is the way storefront
dispensaries should be organized. While some dispensaries
are currently organized otherwise, as sole proprietorships,
partnerships, or for-profit businesses, such arrangements
are not advisable, since they are not permitted under SB 420
or the Attorney General's guidelines.
"Cooperatives" are explicitly
defined in California law. Cooperatives must file articles
of incorporation with the state and be organized in
accordance with provisions spelled out in the state
Corporations or Food and Agriculture code. Prospective
cooperatives should be set up in consultation with a
business attorney.
"Collectives" are not defined
in statutory law. According to the Attorney General's
guidelines :
"A collective should be
an organization that merely facilitates the
collaborative efforts of patient and caregiver members –
including the allocation of costs and revenues. As such,
a collective is not a statutory entity, but as a
practical matter it might have to organize as some form
of business to carry out its activities. 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."
One might infer that
"collective" refers to any organization of multiple
patients. Unfortunately, the guidelines provide no
explanation as to how these should operate. Presumably, the
basic model is a group of patients and caregivers who plant
a garden together and share the crop among themselves. The
cultivation collective model does not necessarily envision
walk-in clients, nor retail sales of medicine to
members. Collectives may be supported by participation in
work, donations or membership fees. Under one model,
patients pay a set gardening fee for a certain part of the
crop, and receive the harvest at no further charge.
A notable example of a
patients' collective is the Wo/Men's
Alliance for Medical Marijuana in Santa Cruz. WAMM has
200 seriously ill members who cultivate a collective
garden and attend to each others' health and personal
needs.
Two examples of patients'
providers officially structured as cooperative corporations
under California law were the Oakland Cannabis Buyers'
Cooperative and Los Angeles Cannabis Research Center. Both
might have been legal under SB 420, but they were shut down
by the federal government.
The legality of collectives
and cooperatives under state law was upheld by the Third
District Court of Appeals in the 2005
Urziceanu decision. The Court ruled that while Prop. 215
did not authorize distribution by anyone except primary
caregivers, SB 420 allowed for distribution among patients
and caregivers through collectives and cooperatives.
FEDERAL LAW
Posssession, sale,
distribution and transportation of marijuana, medical or
otherwise, remain completely illegal under federal law.
Under the U.S. Controlled Substances Act (CSA), marijuana is
currently classified as a Schedule I drug, meaning that it
has no accepted medical use. In 2001 , the Supreme Court
upheld a federal injunction ordering the
Oakland Cannabis Buyers Cooperative and five other
cannabis clubs to cease operations. The court overturned a
Ninth Circuit Court of Appeals ruling that the OCBC was
entitled to a "medical necessity" defense for distributing
marijuana to its members. The court ruled for the
government on the grounds that the CSA did not allow for a
necessity defense for distributors, but left open the
question whether individual patients might invoke a
necessity defense.
The Supreme Court turned back a more fundamental
challenge to federal law in 2005, when it ruled that the CSA
prohibits the private possession and cultivation of
marijuana even by individual patients
(Gonzalez v Raich). In particular, it reversed a ruling
by the Ninth Circuit Court of Appeals which had found that
the Congress' constitutional authority to regulate
"interstate commerce" did not extend to patients who grew
and possessed their own marijuana at home. Although the
Supreme Court in no way invalidated California's state law
on medical marijuana, it affirmed the federal government's
right to treat all marijuana as contraband. In a subsequent
case (Raich v Gonzalez, 2007), the 9th Circuit Court of
Appeals ruled that patients have no constitutional right to
use medical marijuana even when their lives depend on it.
In May 2009 the U.S. Supreme Court refused to hear a case
from San Diego and San Bernardino counties challening the
state ID card program, leaving in place an appeals court
ruling upholding the program.
That ruling does not overturn Raich.
As a result , medical
marijuana remains completely illegal under current federal
law. The
DEA
has raided scores of medical marijuana growers, clubs
and caregivers in California since the enactment of Prop.
215. For the most part, the targets have been either
high-profile activists who have attracted publicity, or
commercial-scale dispensaries and growers whom local law
enforcement has decided to turn over for federal
prosecution. Defendants in federal cases are not allowed to
invoke state law or medical marijuana as a defense. As a
result, every medical marijuana defendant who has gone to
trial in federal court has been convicted. Sentences have
ranged from one day to 20 years.
Summary
of federal cases.
FEDERAL FORFEITURE:
Another federal weapon
against medical marijuana is property forfeiture. Federal
law allows the government to forfeit real estate from owners
or landlords who let it be used for marijuana distribution
or cultivation. Since 2007, the DEA has sent letters to
hundreds of California dispensary landlords warning them
that their property is subject to forfeiture. So far, no
forfeiture suits have been filed pursuant to these letters.
Nonetheless, in Santa Barbara, the Department of Justice
successfully forced landlords to evict their tenants by
warning them that they would otherwise face certain
forfeiture in 45 days (Aug 2008). The DEA successfully
invoked forfeiture after raiding the Los Angeles Cannabis
Resource Center in 2001. The LACRC's building was actually
owned by the city of West Hollywood, which had bought it as
a gift for the club. The government had no trouble
forfeiting it from the city, effectively closing the LACRC.
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