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 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 (see document attached). 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.
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. The best way to organize a delivery service is as a non-profit cooperative or collective. The management should be in the hands of the membership, not a single individual. (See definitions of collective and cooperative above.)
Cultivation and posession guidelines
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. 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 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.
Possession, 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. 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.
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
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 one of the cases 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 decision of other case, where the court held that 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.