"How can we are the cause of what's 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 similar to this dispute. What do the pros say relating to this 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 on the answer? First the Los Angeles District Attorney claims ""all sales are illegal"". The California State Attorney General was sure enough to write down in their guidelines that ""storefront collectives could be legal under state guiidelines"". How could this be? After all, each attorney is looking on the same, right?
So precisely what is the answer? What does legislation say?
COMPASSIONATE-USE ACT 1996
Proposition 215 that was approved by a majority of Californians in 1996 also it became known as the Compassionate-Use Act. The statute itself will not say anything about ""sales"" nonetheless it does discuss ""possession"", ""cultivating"", obtaining medical cannabis, about affordability and ""distribution"".
It does point out that qualified patients and their primary caregivers won't be victim to criminal issues:
""(B) To ensure that patients in addition to their primary caregivers who obtain and employ marijuana for medical purposes upon the advice of a 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 strategy to the safe and affordable distribution of marijuana to everyone patients in medical need for marijuana.""
The Los Angeles District Attorney, Steve Cooley, had State and Federal police force agents raid a medical cannabis collective and arrest at the very least 3 people, the week before Christmas. He insists ""all sales are illegal"". This looks like it's from the letter and spirit of what the law states, not the mention the spirit with the season.
Also if all ""sales"" are illegal, why does the Compassionate-Use Act say ""affordable""? If the patients are financially responsible to the cannabis, what makes Cooley expect the currency being exchanged? What's wrong with incremental reimbursements?
MEDICAL MARIJUANA PROGRAM OF 2004
The Medical Marijuana Program (MMP) came into law in 2004 over the legislative approval of Senate Bill 420. It was the state's attempt ""to implement a plan for that safe and affordable distribution of marijuana to all or any patients in medical necessity of marijuana,"" since the Compassionate-Use Act of 1996 (Prop 215) encourages the State and Federal government to do.
The MMP improves usage of 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 are the distribution element of ""cultivation projects"". Just like a collective cultivation farm wouldn't have customers visit the farm to get their tomatoes, they might have to get their collective tomatoes in a farmer's market or distribution location-- that's how medical cannabis collective cultivations occur. Grown a single location for safety and other reasons, then distributed at another location.
The MMP goes on to discuss all of the criminal statutes that qualified patients and primary caregivers are exempt from. In section 11362.765, it says: ""shall stop subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.""
Let's take a look at all these one by one:
11357: [possession],
11358: [cultivation],
11359: [possession for sale],
11360: [""transports, imports into this state, sells, furnishes, administers, or gives away""- or purports to or attempts to perform any of those],
11366: [Every individual that opens or maintains any place for that function of unlawfully selling, offering, or using any controlled substance]
11366.5 [Managing an area manufacture, storage and/or the distribution of a controlled substance]
11570 [Every building or place used to the intent behind unlawfully selling, serving, storing, keeping, manufacturing, or offering any controlled substance, precursor, or analog per this division, each building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is really a public or private nuisance.]
The Health and Safety Code section 11360 specifically says ""sells"". Not only that, in addition, it 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, and also the designated primary caregivers of qualified patients and persons with identification cards, who associate inside State of California in order collectively or cooperatively to grow marijuana for medical purposes, shall not solely about the basis of that fact 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 outside of the cultivation the same as the manufacturing of my vicodin is situated separate from my pharmacy.
The Medical Marijuana Act also calls on the State Attorney General to offer guidelines associated with medical cannabis:
""The bill would need the Attorney General to produce and adopt guidelines to be sure the security and non-diversion of marijuana grown for medical use, as specified.""
And that just what State Attorney General, Jerry Brown did in 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 the following tips to assist law enforcements do their jobs in accordance with State law and to help patients understand those laws.
The guidelines state non-profit storefront Medical Cannabis Dispensing Collectives and Cooperatives may be legal under state regulations if they followed the rules along with the above laws.
""It is the opinion of this Office a properly organized and operated collective or cooperative that dispenses medicinal marijuana through a storefront could be lawful under California law""
The State Attorney General confirms what legislation says. The Attorney General will be the highest-ranking legal employee from the State of California. His office also responded to the problems 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, law enforcement officials and advocates from round the state had called seeking clarity on medicinal marijuana laws.
Mr. Brown has issued guidelines that allow for nonprofit sales of medicinal marijuana, she said. But, she added, with laws being interpreted differently, ""the final answer will ultimately 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 complete with all the definition of ""primary caregiver"" not sales.
Mentch had 82 marijuana plants growing in their home and the man sold the medicine to 5 people who came to his home while using primary function of buying cannabis. The tastes the plants in Mentch's home belonged to him as he testified. Their operations was not a collective or perhaps a cooperative nor a store. Mentch owned Hemporium, a for-profit care giving and consultancy business, not only a non-profit collective or possibly a cooperative.
Based over evidence alternative treatment for depression san carlos the courts figured that Mentch's operation was primarily a for-profit commercial venture and the man was not a primary caregiver for all those he supplied medical cannabis to from his home-based business. I've written relating to this detailed here.
So there you've what the courts say, exactly what the State Attorney says, and what are 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 as well as the will of the people preventing wasting time and resources to hurt medical cannabis patients especially prior to Christmas. Especially when you'll find over 7,000 untested rape kits that the District Attorney states not need the resources to take care of.
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