Wednesday, August 27, 2014
Although California passed the first modern medical marijuana law in 1996 and saw the first wave of medical marijuana dispensaries, the legal status of dispensaries in the state is still somewhat unsettled. While government officials in places like Oakland have backed large scale retail outlets, in other parts of the state a handful of District Attorney's offices have argued that retail marijuana stores are illegal under state law. San Diego, where I live, has arguably been ground zero for this view--with one Deputy District Attorney going so far as to write a lengthy law review article (PDF) on why medical marijuana sales are actually illegal under California law.
For the most part, appellate courts have held that retail medical marijuana outlets are permitted under California law (though the state Supreme Court has yet to weigh in.) Last week saw another decision reaffirming the legality of retail medical marijuana sales in CA v. Baniana (PDF).
Here are a few relevant excerpts:
[California's Medical Marijuana Program Act (MMPA)] permits qualified patients and their designated primary caregivers to join together “in order collectively or cooperatively to cultivate marijuana for medical purposes” without being subject to “state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.” (§ 11362.775.)
In 2010, the Legislature added section 11362.768 to the MMPA. (Stats. 2010, ch. 603, § 1.) This section implicitly recognizes the lawfulness of a “marijuana cooperative, collective, dispensary, operator, establishment or provider who possesses, cultivates, or distributes medical marijuana pursuant to” the MMPA, but prohibits such entities from operating “within a 600-foot radius of a school.” (§ 11362.768, subd. (b).) “This section shall apply only to a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license.” (§ 11362.768, subd. (e).)
The prosecutor argued defendant was not entitled to the defense because the MMPA did not legalize the sale of medical marijuana. He asserted that while it may be lawful for a qualified patient unable to take part in the actual tending to the plants, or to devote time and effort on behalf of Herbal Run, to support the organization strictly through monetary contributions, the prosecutor argued any monetary contribution could not be contemporaneous with an exchange of marijuana. According to the prosecutor, such an individual would have to make his or her monetary contribution prior to the planting of the marijuana the patient would eventually be given.
The MMPA does not impose this limitation on qualified patients. First, the purpose of the MMPA is to ensure the promise of the CUA is fulfilled and qualified patients have safe access to affordable medical marijuana. We do not think the Legislature intended a seriously ill individual whose physician has recommended use of medical marijuana, and who is physically or otherwise unable to participate in the acts involved in cultivating medical marijuana, cannot simply pay money to his or her collective in exchange for the recommended medicine. It would be cruel for those whose need for medical marijuana is the most dire to require that they devote their limited strength and efforts to the actual cultivation of the marijuana, and then wait months for it to grow so they can use it, or to require that they make their monetary contribution and then wait months for the marijuana to be planted, grown, and harvested before they may lawfully be provided medical marijuana. Moreover, for some the cultivation and processing would not be completed until it was too late to provide any relief. The MMPA does not anticipate a patient who has received a physician’s recommendation must thereafter wait months to lawfully acquire medical marijuana.
Of course, the MMPA did not make lawful all sales of marijuana. The defense it provides is limited to those qualified patients and primary caregivers who associate together in a collective or cooperative. (§ 11362.775.) Additionally, sales for profit remain illegal. However, given the MMPA’s purpose, one provision in the MMPA implicitly recognizes the legality of store front dispensaries, collectives or cooperatives (§ 11362.768), and another provision specifically provides a defense to violation of sections 11360 (sale or transportation of marijuana) and 11359 (possession of marijuana for sale), we conclude a member of a collective or cooperative may purchase medical marijuana from the collective or cooperative so long as the sale is not for profit. The district attorney’s limited interpretation of section 11362.775 defeats the stated purpose of the MMPA to make access to medical marijuana easier for patients, and is contrary to a fair reading of the section. Section 11362.775 was written to provide a defense to a charge of selling marijuana in appropriate circumstances. Were this not the Legislature’s intent, there would have been no need to list section 11360 or section 11366 [opening or maintaining a place for the purpose of selling or giving away marijuana] as statutes to which the defense applies.
It is getting harder and harder for recalcitrant prosecutors to argue that California law does not permit retail medical marijuana dispensaries. But, as this opinion suggests, there are still other ways that California's horribly vague law can be a trap for the unwary in the hands of a drug war-style prosecutor. The particulars of the non-profit operation requirement remain almost entirely unclear, for example. A Los Angeles-area appellate decision from the spring highlights some of the problems. (Frankly, I think the "collective and cooperative" statute would almost certainly be found unconstitutionally vague if it were not for the fact that a vagueness holding would presumably mean striking down the defense entirely, which would obviously be of no help to defendants. I'm fairly certain this is why the issue is never raised in these cases.)
This recent holding is good news for medical marijuana advocates in California. But unless and until the legislature gets their act together and passes comprehensive statewide regulations, a steady stream of appeals attempting to make sense of the mess in place now will almost surely continue.