Cannabis Rule Up In Smoke
"How can we take into account what exactly is perhaps one of the most dramatic legal disparities in medical cannabis to date? The issue of non-profit ""sale"" of medical cannabis to qualified patients via collectives and cooperatives. There's nothing else this way dispute. What do professionals say about it anyway?
Steve Cooley, The Los Angeles District Attorney, disagrees with Jerry Brown, the California State Attorney General.
How could two prominent state-employed attorneys arrive at wholly different conclusions around the answer? First the Los Angeles District Attorney claims ""all sales are illegal"". The California State Attorney General was sure enough to create in the guidelines that ""storefront collectives might be legal under state guidelines"". How could this be? After all, each attorney is looking on the same task, right?
So what exactly is the answer? What does legislation say?
COMPASSIONATE-USE ACT 1996
Proposition 215 that has been approved with a majority of Californians in 1996 and yes it became referred to as the Compassionate-Use Act. The statute itself won't say anything about ""sales"" but it does talk about ""possession"", ""cultivating"", obtaining medical cannabis, about affordability and ""distribution"".
It does say that qualified patients as well as their primary caregivers won't be victim to criminal issues:
""(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendations of the physician aren't subject to criminal prosecution or sanction.""
And what's more, it pushes governments to aid ensure ""safe and affordable access"" to medical cannabis for ""all qualified patients"".
""(C) To encourage the federal and state governments to implement a plan for your safe and affordable distribution of marijuana to all or any patients in medical demand for marijuana.""
The Los Angeles District Attorney, Steve Cooley, had State and Federal police officers agents raid a medical cannabis collective and arrest a minimum of 3 people, the week before Christmas. He insists ""all sales are illegal"". This seems to be up against the letter and spirit of the law, not the mention the spirit of the season.
Also if all ""sales"" are illegal, each and every the Compassionate-Use Act say ""affordable""? If the patients are financially responsible to the cannabis, so how exactly does Cooley expect the currency to be exchanged? What's wrong with incremental reimbursements?
MEDICAL MARIJUANA PROGRAM OF 2004
The Medical Marijuana Program (MMP) came into law in 2004 through the legislative approval of Senate Bill 420. It was the state's attempt ""to implement a plan for your safe and affordable distribution of marijuana to all or any patients in medical demand for marijuana,"" because Compassionate-Use Act of 1996 (Prop 215) encourages the State and Federal government to do.
The MMP improves entry to medical cannabis for qualified patients by approving collectives and cooperatives.
""(3) Enhance the access of patients and caregivers to medicinal marijuana through collective, cooperative cultivation projects.""
What Steve Cooley doesn't apparently understand is non-profit storefront Medical Cannabis Dispensing Collectives/Cooperatives would be the distribution facet of ""cultivation projects"". Just like a collective cultivation farm wouldn't have customers arrived at the farm to obtain their tomatoes, they will have to get their collective tomatoes with a farmer's market or distribution location-- that's how medical cannabis collective cultivations occur. Grown in a area for safety as well as other reasons, then distributed at another location.
The MMP goes on to talk about every one of the criminal statutes that qualified patients and primary caregivers are exempt from. In section 11362.765, it says: ""shall not subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.""
Let's examine each one of these individually:
11357: [possession],
11358: [cultivation],
11359: [possession for sale],
11360: [""transports, imports into this state, sells, furnishes, administers, or gives away""- or offers to or attempts to do any of those],
11366: [Every individual who opens or maintains anywhere for the purpose of unlawfully selling, handing out, or using any controlled substance]
11366.5 [Managing a spot for manufacture, storage and/or the distribution of the controlled substance]
11570 [Every building or place used for your intent behind unlawfully selling, serving, storing, keeping, manufacturing, or offering any controlled substance, precursor, or analog per this division, and every building or place wherein or on which those acts come about, can be a nuisance which shall be enjoined, abated, and prevented, as well as which damages could possibly be recovered, whether it is often a public or private nuisance.]
The Health and Safety Code section 11360 specifically says ""sells"". Not only that, it also says: ""gives away"" and ""furnishes"". How come the LA District Attorney's office says ""all sales are illegal"" and non-profit storefront medical cannabis dispensing collectives/cooperatives are banned?
In that same bill,
""11362.775. Qualified patients, persons with valid identification cards, along with 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 grow marijuana for medical purposes, shall not solely about the basis of that fact be be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.""
Again, it says that patients can collectively cultivate cannabis and distribute it amongst themselves for non-profit. Again, the distribution of medical cannabis is apart from the cultivation similar to the manufacturing of my vicodin is located apart from my pharmacy.
The Medical Marijuana Act also calls for the State Attorney General to deliver guidelines in connection with medical cannabis:
""The bill would require Attorney General to build up and adopt guidelines to guarantee the security and non-diversion of marijuana grown for medical use, as specified.""
And that precisely what State Attorney General, Jerry Brown did within the late summer of 2008.
GUIDELINES FOR THE SECURITY AND NON-DIVERSION OF MARIJUANA GROWN FOR MEDICAL USE August 2008
To fulfill his mandate, the State Attorney General release these guidelines to assist law enforcements do their jobs based on State law and to aid patients understand those laws.
The guidelines state non-profit storefront Medical Cannabis Dispensing Collectives and Cooperatives could be legal under state regulations whenever they followed the rules and the above laws.
""It is the opinion of this Office that the properly organized and operated collective or cooperative that dispenses medical cannabis by having a storefront could possibly be lawful under California law""
The State Attorney General confirms what legislation says. The Attorney General is the highest-ranking legal employee of the State of California. His office also taken care of immediately the issues raised in Los Angeles by City Attorney's office.
According towards the New York Times on October 17: Christine Gasparac, a spokeswoman for State Attorney General Jerry Brown, said that after Mr. Trutanich's comments in Los Angeles, police officers officials and advocates from around the state had called seeking clarity on medicinal marijuana laws.
Mr. Brown has issued regulations that provide nonprofit sales of medical cannabis, she said. But, she added, with cbdforsalenearme.com laws being interpreted differently, ""the final answer will eventually come from the courts.""
So exactly what do the courts say?
PEOPLE v. MENTCH
The District Attorney's office would have you feel that the Mentch decision outlaws non-profit storefront Medical Cannabis Dispensing Collectives/Cooperatives and makes ""all sales illegal"" but that decision has to do with all the definition of ""primary caregiver"" not sales.
Mentch had 82 marijuana plants growing as part of his home and the man sold the medicine to five those who found his home with the primary function of buying cannabis. The tastes the plants in Mentch's home belonged to him as he testified. Their operations had not been a collective or even a cooperative nor a storefront. Mentch owned Hemporium, a for-profit care giving and consultancy business, not just a non-profit collective or perhaps a cooperative.
Based off the evidence the courts figured that Mentch's operation was primarily a for-profit commercial venture and wasn't a primary caregiver for those he supplied medical cannabis to from his home business. I've written about this detailed here.
So there you've just what the courts say, exactly what the State Attorney says, and what the laws say; all confirm non-profit storefront dispensing of medical cannabis could be legal under State law.
Now the Los Angeles District Attorney must obey the law along with the will of the people which will help prevent wasting time and resources to hurt medical cannabis patients especially prior to Christmas. Especially when there are over 7,000 untested rape kits that this District Attorney claims to not have the resources to deal with.
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