| How can we account for what is perhaps one of | | | | controlled substance, precursor, or analog specified |
| the most dramatic legal disparities in medical | | | | in this division, and every building or place wherein |
| cannabis to date? The issue of non-profit "sale" of | | | | or upon which those acts take place, is a nuisance |
| medical cannabis to qualified patients via collectives | | | | which shall be enjoined, abated, and prevented, |
| and cooperatives. There's nothing else like this | | | | and for which damages may be recovered, |
| dispute. What do the experts say about this | | | | whether it is a public or private nuisance.] |
| anyway? | | | | The Health and Safety Code section 11360 |
| Steve Cooley, The Los Angeles District Attorney, | | | | specifically says "sells". Not only that, it also says: |
| disagrees with Jerry Brown, the California State | | | | "gives away" and "furnishes". How come the LA |
| Attorney General. | | | | District Attorney's office says "all sales are illegal" |
| How could two prominent state-employed | | | | and non-profit storefront medical cannabis |
| attorneys come to wholly different conclusions on | | | | dispensing collectives/cooperatives are banned? |
| the answer? First the Los Angeles District | | | | In that same bill, |
| Attorney claims "all sales are illegal". The California | | | | "11362.775. Qualified patients, persons with valid |
| State Attorney General was sure enough to write | | | | identification cards, and the designated primary |
| in his guidelines that "storefront collectives may be | | | | caregivers of qualified patientsand persons with |
| legal under state law". How could this be? After all, | | | | identification cards, who associate within the State |
| each attorney is looking at the same thing, right? | | | | of California in order collectively or cooperatively |
| So what is the answer? What does the law say? | | | | to cultivate marijuana for medical purposes, shall |
| COMPASSIONATE-USE ACT 1996 | | | | not solely on the basis of that fact be subject to |
| Proposition 215 which was approved by a | | | | state criminal sanctions under Section 11357, |
| majority of Californians in 1996 and it became | | | | 11358, 11359, 11360, 11366, 11366.5, or 11570." |
| known as the Compassionate-Use Act. The | | | | Again, it says that patients can collectively |
| statute itself does not say anything about "sales" | | | | cultivate cannabis and distribute it amongst |
| but it does talk about "possession", "cultivating", | | | | themselves for non-profit. Again, the distribution |
| obtaining medical cannabis, about affordability and | | | | of medical cannabis is separate from the |
| "distribution". | | | | cultivation just like the manufacturing of my |
| It does say that qualified patients and their | | | | vicodin is located separate from my pharmacy. |
| primary caregivers will not be victim to criminal | | | | The Medical Marijuana Act also calls on the State |
| issues: | | | | Attorney General to provide guidelines related to |
| "(B) To ensure that patients and their primary | | | | medical cannabis: |
| caregivers who obtain and use marijuana for | | | | "The bill would require the Attorney General to |
| medical purposes upon the recommendation of a | | | | develop and adopt guidelines to ensure the |
| physician are not subject to criminal prosecution | | | | security and non-diversion of marijuana grown for |
| or sanction." | | | | medical use, as specified." |
| And it also pushes governments to help ensure | | | | And that exactly what State Attorney General, |
| "safe and affordable access" to medical cannabis | | | | Jerry Brown did in the late summer of 2008. |
| for "all qualified patients". | | | | GUIDELINES FOR THE SECURITY AND |
| "(C) To encourage the federal and state | | | | NON-DIVERSION OF MARIJUANA GROWN FOR |
| governments to implement a plan for the safe | | | | MEDICAL USE August 2008 |
| and affordable distribution of marijuana to all | | | | To fulfill his mandate, the State Attorney General |
| patients in medical need of marijuana." | | | | release these guidelines to help law enforcements |
| The Los Angeles District Attorney, Steve Cooley, | | | | do their jobs according to State law and to help |
| had State and Federal law enforcement agents | | | | patients understand those laws. |
| raid a medical cannabis collective and arrest at | | | | The guidelines state non-profit storefront Medical |
| least 3 people, the week before Christmas. He | | | | Cannabis Dispensing Collectives and Cooperatives |
| insists "all sales are illegal". This seems to be | | | | could be legal under state law if they followed the |
| against the letter and spirit of the law, not the | | | | guidelines and the above laws. |
| mention the spirit of the season. | | | | "It is the opinion of this Office that a properly |
| Also if all "sales" are illegal, why does the | | | | organized and operated collective or cooperative |
| Compassionate-Use Act say "affordable"? If the | | | | that dispenses medical marijuana through a |
| patients are financially responsible for the cannabis, | | | | storefront may be lawful under California law" |
| how does Cooley expect the currency to be | | | | The State Attorney General confirms what the |
| exchanged? What's wrong with incremental | | | | law says. The Attorney General is the |
| reimbursements? | | | | highest-ranking legal employee of the State of |
| MEDICAL MARIJUANA PROGRAM OF 2004 | | | | California. His office also responded to the issues |
| The Medical Marijuana Program (MMP) came into | | | | raised in Los Angeles by City Attorney's office. |
| law in 2004 through the legislative approval of | | | | According to the New York Times on October 17: |
| Senate Bill 420. It was the state's attempt "to | | | | Christine Gasparac, a spokeswoman for State |
| implement a plan for the safe and affordable | | | | Attorney General Jerry Brown, said that after Mr. |
| distribution of marijuana to all patients in medical | | | | Trutanich's comments in Los Angeles, law |
| need of marijuana," as the Compassionate-Use | | | | enforcement officials and advocates from around |
| Act of 1996 (Prop 215) encourages the State and | | | | the state had called seeking clarity on medical |
| Federal government to do. | | | | marijuana laws. |
| The MMP improves access to medical cannabis for | | | | Mr. Brown has issued legal guidelines that allow for |
| qualified patients by approving collectives and | | | | nonprofit sales of medical marijuana, she said. But, |
| cooperatives. | | | | she added, with laws being interpreted differently, |
| "(3) Enhance the access of patients and | | | | "the final answer will eventually come from the |
| caregivers to medical marijuana through collective, | | | | courts." |
| cooperative cultivation projects." | | | | So what do the courts say? |
| What Steve Cooley doesn't seem to understand | | | | PEOPLE v. MENTCH |
| is non-profit storefront Medical Cannabis | | | | The District Attorney's office would have you |
| Dispensing Collectives/Cooperatives are the | | | | believe that the Mentch decision outlaws |
| distribution aspect of "cultivation projects". Just like | | | | non-profit storefront Medical Cannabis Dispensing |
| a collective cultivation farm wouldn't have | | | | Collectives/Cooperatives and makes "all sales |
| customers come to the farm to get their | | | | illegal" but that decision has to do with the |
| tomatoes, they would have to get their collective | | | | definition of "primary caregiver" not sales. |
| tomatoes at a farmer's market or distribution | | | | Mentch had 82 marijuana plants growing in his |
| location-- that's how medical cannabis collective | | | | home and he sold the medicine to 5 people who |
| cultivations occur. Grown in one location for | | | | came to his home with the primary purpose of |
| safety and other reasons, then distributed at | | | | buying cannabis. The majority of the plants in |
| another location. | | | | Mentch's home belonged to him as he testified. |
| The MMP goes on to talk about all the criminal | | | | Their operations was not a collective or a |
| statutes that qualified patients and primary | | | | cooperative nor a storefront. Mentch owned |
| caregivers are exempt from. In section 11362.765, | | | | Hemporium, a for-profit care giving and |
| it says: "shall not be subject, on that sole basis, to | | | | consultancy business, not a non-profit collective or |
| criminal liability under Section 11357, 11358, 11359, | | | | a cooperative. |
| 11360, 11366, 11366.5, or 11570." | | | | Based off the evidence the courts concluded that |
| Let's look at each of these one by one: | | | | Mentch's operation was primarily a for-profit |
| 11357: [possession], | | | | commercial venture and that he was not a |
| 11358: [cultivation], | | | | primary caregiver for those he supplied medical |
| 11359: [possession for sale], | | | | cannabis to from his home business. I've written |
| 11360: ["transports, imports into this state, sells, | | | | about this in depth here. |
| furnishes, administers, or gives away"- or offers | | | | So there you have what the courts say, what |
| to or attempts to do any of those], | | | | the State Attorney says, and what the laws say; |
| 11366: [Every person who opens or maintains any | | | | all confirm non-profit storefront dispensing of |
| place for the purpose of unlawfully selling, giving | | | | medical cannabis can be legal under State law. |
| away, or using any controlled substance] | | | | Now the Los Angeles District Attorney must |
| 11366.5 [Managing a place for manufacture, | | | | obey the law and the will of the people and stop |
| storage and/or the distribution of a controlled | | | | wasting time and resources to hurt medical |
| substance] | | | | cannabis patients especially just before Christmas. |
| 11570 [Every building or place used for the | | | | Especially when there are over 7,000 untested |
| purpose of unlawfully selling, serving, storing, | | | | rape kits that the District Attorney claims to not |
| keeping, manufacturing, or giving away any | | | | have the resources to handle. |