California’s initial medical marijuana law, Proposition 215 (1996), caused substantial confusion. It was vague on many important issues and completely omitted others.
Since then, the legislature, courts, counties and cities have each made their own rules to provide clarity and fill in the gaps. This led to a patchwork of conflicting regulations that governed the industry for over a decade and a half. These problems have finally begun ironing themselves out. But to understand how we got here, let’s start from the beginning:
Proposition 215 (1996)
State voters approved Proposition 215, known as the “Compassionate Use Act,” on November 5, 1996 by a 55% vote. The law was added to the California Health and Safety Code as section 11362.5, which provides:
(A) Seriously ill Californians have the right to obtain and use marijuana for medical purposes when it is recommended by a physician. Covered illnesses include but are not limited to the treatment of anorexia, cancer, spasticity, AIDS, chronic pain, arthritis, glaucoma, migraine, or any other illness for which marijuana provides relief.
(B) Patients and primary caregivers who obtain and use marijuana in accordance with this law will be insulated from criminal prosecution or sanctions.
(C) This purpose of this statute is to provide safe and affordable distribution of marijuana to all patients who need it.
Other provisions said:
No California physician can be punished, or denied any right or privilege, for having recommended marijuana to a patient in compliance with this section.
Criminal laws relating to the cultivation of marijuana will not apply to a patient, or primary caregiver, who possesses or cultivates marijuana for the personal medical purposes approved by a doctor.
“Primary care-giver” means a person who has consistently assumed responsibility for the housing, health, or safety of the patient.
A quick glance at this language shows that the statute raised more questions than it answered. Some of the biggest confusion it created included:
1. Why does the statute define a “seriously ill” Californian as anyone who has “any…illness for which marijuana provides relief.”
2. The FDA tests our nation’s drugs and decides whether they are safe, effective, and ‘provide relief’ as claimed? But under the Federal Controlled Substances Act, cannabis is a Schedule 1 drug, in the same category as heroin and cocaine, which means it has no known medicinal value. Does this statute give Doctors the power to decide what illnesses marijuana provides relief for in violation of Federal law? Can a Doctor be punished for overruling the US Government?
3. Can a primary caregiver get paid for giving the patient marijuana? Does simply giving a patient marijuana make him/her a caregiver?
4. Can patients grow collectively? Are dispensaries legal? Can the patients sell to each other? Can the local authorities ban marijuana use in their county or city? If a person violates a local ban, it is a crime (where they can go to jail), or just a civil matter?
This is just a small slice of the turmoil the statute created, and the chaos went on for years. The courts tried to clean up the problems one at a time. But every ruling seemed to trigger more headaches. Finally, in 2003, Governor Gray Davis signed Senate Bill 420, otherwise known as the ‘Medical Marijuana Program Act.’
Senate Bill 420
The bill was lengthy and included a host of new rules. The most important were:
- Each patient could voluntarily sign up for a state-issued medical marijuana card. Showing it to the police would provide insulation from prosecution.
1. ‘Any other illness’ as defined in Prop 215 means: “Any other chronic or persistent medical symptom that either substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336). “If not alleviated, may cause serious harm to the patient’s safety or physical or mental health.”
- ‘Primary caregiver’ was defined with more clarity.
- Non-profit collectives, cooperatives, and cultivators were permitted to sell marijuana and charge enough to cover their expenses (hereafter “Marijuana Business”).
- No smoking zones were established within 1000 feet of a school or youth center except in private residences, on school buses, in a motor vehicle that is being operated, or while operating a boat.
- Patients and caregivers were insulted from arrest for matters not covered in Prop 215.
- Current and former prisoners were given the right to apply to use medical marijuana. The justice system retained complete discretion over whether or not to allow it.
- Committing fraud to get a state issued card was deemed a crime.
This statute also attempted to limit the number of plants a patient could cultivate to 6 mature or 12 immature plants, plus allow possession of up to 8 ounces of dried cannabis. The courts subsequently struck down this cap, and ruled instead that even without a doctor’s recommendation, a patient must allowed to try and prove he needed more than this amount to treat his illness.
But once again, the state failed to address a critical point that gave rise to havoc: Were local cities and/or counties allowed to separately regulate or ban Marijuana Businesses? No one knew for another seven (7) years. In 2008, the California Attorney General released non-binding Guidance. But it remained unclear until the Governor signed bill AB-1300 in 2011, which provided:
The Medical Marijuana Program exempts certain qualified patients and caregivers from state criminal sanctions related to the cultivation, possession, processing, transportation, or use of marijuana. It also prohibits medical Marijuana Businesses from being located within a 600-foot radius of a school and allows a city or other local governing body to adopt and enforce laws consistent with these terms.
This bill expands the law so that a city or other local governing body can adopt and enforce local ordinances. They are now allowed to regulate the location, operation, or establishment of a Marijuana Business, and make it a civil wrong or crime to violate these local ordinances.
This bill passed and turned into California Health and Safety Code section 11362.768 and California Health and Safety Code section 11362.83.
Finally, a full 15 years after Proposition 215 passed, the laws were beginning to gel and provide clarity. Here’s where the most important medical marijuana issues stand today:
1. Marijuana, hashish, concentrated cannabis, and edible possession and cultivation are all allowed.
2. A patient is not required to get a state-issued card. A doctor’s recommendation is sufficient.
3. Statewide, a medical patient (or a caregiver on the patient’s behalf) can cultivate up to the amount either ordered by the doctor or reasonably required for personal use. Such cultivation is exempt from prosecution under state law. However, per a 2013 California Supreme Court case, that counties and cities can still completely ban personal cultivation for patients and caregivers. This local right to invoke a complete ban appears to have been preempted, in part, by the passage of Prop 64, which provides that no city, county, or city and county may completely prohibit persons from cultivating up to and including six plants and their harvest at in a single private residence, or on its grounds, at one time.
4. If a qualified patient appears to be growing for illegal sale, s/he can still be arrested. The patient must then prove to the Judge that the amount in question was medically necessary to treat his/her illness.
5. Smoking marijuana is banned in any place where smoking is prohibited by law. Marijuana use is also prohibited on a school bus, in a boat, in a motor vehicle while being operated, or within 1000 feet of a school, recreation center, or youth center unless it takes place within a residence.
6. Commercial landlords can refuse to rent to a Marijuana Business even though the city or county has legalized it. Residential landlords can write medical cultivation and use prohibitions into their new leases. The rights of existing residential tenants to use, possess and cultivate medical marijuana for personal use, without facing eviction (when their written lease contains no prohibition) remains unclear.
7. Employers can fire employees for using marijuana, even when it occurs during off-hours and for medical purposes.
8. Parents may grow, store, and use pot with children in the house. Mere involvement with medical cannabis is not grounds to terminate or limit custodial rights. However, any pot related situation that poses a threat to the child’s health, safety or welfare is grounds for losing custody, so parents should take extreme precautions to ensure this does not occur.
9. Criminal Defendants out on bail, parolees and people on probation may request permission to use medical marijuana.
10. It is illegal in approximately eighty-five percent (85%) of California’s cities and counties to run a Marijuana Business of any kind. The remaining locales either have no rules regarding it, or they regulate, tax, and/or limit it in some way.
11. Marijuana remains completely illegal under federal law. Doctors cannot be punished for recommending marijuana in accordance with state law. Legitimate pot patients and Marijuana Businesses are still subject to federal prosecution.
In 2015, the state passed three bills that created a regulatory framework for the industry. The California Bureau of Cannabis Regulation will begin issuing Marijuana Business licenses in 2018. There will be limits on vertical integration. Those currently running with local approval will be given preferential treatment. Every state applicant must already be licensed by their county or city. For-profit ventures are implicitly allowed.
In November 2016, California voters passed Prop 64, the Adult Use of Marijuana Act (AUMA). It was over 60 pages long, but its primary purpose was to legalize recreational marijuana. This law did not alter the existing legal rights of medical marijuana patients. For example, recreational users can now grow up to 6 plants. This did not change a patient’s right to grow, possess, or use whatever amount a doctor approves. While the AUMA took immediate effect, dispensaries cannot start selling to non-medical users until 2018.
It took twenty-one (21) years, but finally, California is on the verge of making it all work.
Nothing in this article constitutes legal advice, and its content should not be relied on. If you have a legal question or issue, contact a qualified attorney.
Michael Heicklen is a Los Angeles based attorney who’s been licensed to practice in California since 1993. He focuses on family and business law for the cannabis community and is on the legal committees for Norml, FLCA, and the National Cannabis Bar Association. In 1997, he was part of a legal team that overturned 200 years of forfeiture history at the US Supreme Court. This win forced the Clinton Administration to change the nation’s applicable laws.
Michael Heicklen is also a regularly published author who has written on a variety cannabis related legal topics. Visit his website at http://heicklenlaw.wixsite.com/heicklenlaw or contact him directly at [email protected] or (818) 907-7771.