CALIFORNIA NORML ADVICE FOR MEDICAL MARIJUANA PROVIDERS
There are hundreds of medical cannabis dispensaries, coops, collectives, and delivery services currently doing business in California. Although many are operating in legal accordance with state and local law, the sale of medical cannabis remains strictly illegal under federal law, and the DEA has conducted scores of raids against medical cannabis businesses.
Under state law, the California Compassionate Use Act of 1996 (Prop. 215) patients and their "primary caregivers" are protected from criminal prosecution for personal possession and cultivation of marijuana, but NOT for distribution or sale to others. State law was expanded in 2004 by a new law, Senate Bill 420 (Health & Safety Code 11362.7-8). Among other things, SB 420 authorized patient "cooperatives" or "collectives" to distribute or sell medical marijuana on a non-profit basis to their members. It also allowed allowed duly designated primary caregivers who consistently attend to patients' needs to charge for their labor and services in providing marijuana.
ATTORNEY GENERAL'S GUIDELINES
On Aug. 25, 2008, the California Attorney General's office issued new guidelines for medical marijuana enforcement explaining its interpretation of SB420 and Prop 215. Read the guidelines. Although not strictly binding as law, they provide a good indication of how the AG wants to proceed with state enforcement. The guidelines are for the most part consistent with the California NORML legal committee's interpretation of state law, with certain exceptions noted below (see Cal NORML analysis of AG's guidelines ).
The guidelines note that storefront "dispensaries" are not explicitly recognized in state law, but that a "properly organized collective or cooperative" may legally dispense medical marijuana through a storefront provided it complies with certain conditions. The guidelines do not envision dispensaries operating as patient "caregivers," nor as for-profit businesses (there are many ways in which businesses can be organized as "non-profits"; for details consult a business attorney).
Dispensaries are expected to file for a seller's permit and pay sales taxes to the Board of Equalization. This is consistent with state law, which requires sales taxes for all medicinal herbs and drugs except those sold by a licensed pharmacist upon a doctor's "prescription " (legally, doctors cannot "prescribe" marijuana, but only "recommend" or "approve" it).
Some cities and counties also require a business license and/or zoning permits for dispensaries.
Coops and collectives must serve only verified legal patients, and distribute only to their own members.
Beyond this, the guidelines specify that cooperatives and collectives should use only marijuana legally grown or obtained by their own members, with no purchases from outside their membership. This requirement is questionable, since there is nothing in state or federal law banning the purchase of marijuana, medical or otherwise, from any source (the law bans possession, not purchase, and possession is protected under Prop. 215). However, this problem can be avoided by including all growers and suppliers as members.
The guidelines also state that dispensaries should document their activities, and specifically "track and record" the source of their marijuana. This too is outside the requirements of Prop 215 and SB 420. While good record-keeping is always advisable as a business practice, keeping records on growers and vendors poses obvious problems given the threat of federal prosecution. Until federal law is reformed to protect medical marijuana suppliers, coops and collectives need to be careful about protecting their confidentiality.
CAREGIVERS:A "primary caregiver" is narrowly defined under Prop. 215 to be "the individual designated [by a legal patient] who has consistently assumedresponsibility 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.
A provision in SB 420 forbides 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 thePeron 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.
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.
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.
