"How can we are the cause of what exactly is perhaps one of the most dramatic legal disparities in medical cannabis thus far? The issue of non-profit ""sale"" of medical cannabis to qualified patients via collectives and cooperatives. There's nothing else such as this dispute. What do the experts say about it 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 for the answer? First the Los Angeles District Attorney claims ""all sales are illegal"". The California State Attorney General was sure enough to create in the guidelines that ""storefront collectives could be legal under state guiidelines"". How could this be? After all, each attorney is looking with the same task, right?
So what is the answer? What does legislation say?
COMPASSIONATE-USE ACT 1996
Proposition 215 which has been approved by the majority of Californians in 1996 and it became known as the Compassionate-Use Act. The statute itself doesn't say anything about ""sales"" but it does speak about ""possession"", ""cultivating"", obtaining medical cannabis, about affordability and ""distribution"".
It does point out that qualified patients in addition to their primary caregivers will not be victim to criminal issues:
""(B) To ensure that patients in addition to their primary caregivers who obtain and make use of marijuana for medical purposes upon counsel of your physician are not be subject to criminal prosecution or sanction.""
And additionally, it pushes governments to help ensure ""safe and affordable access"" to medical cannabis for ""all qualified patients"".
""(C) To encourage the federal and state governments to implement an idea to the safe and affordable distribution of marijuana to everyone patients in medical demand for marijuana.""
The Los Angeles District Attorney, Steve Cooley, had State and Federal police officers agents raid a medical cannabis collective and arrest no less than 3 people, the week before Christmas. He insists ""all sales are illegal"". This seems to be against the letter and spirit of regulations, not the mention the spirit of the season.
Also if all ""sales"" are illegal, each and every the Compassionate-Use Act say ""affordable""? If the patients are financially responsible to the cannabis, how can Cooley expect the currency being exchanged? What's wrong with incremental reimbursements?
MEDICAL MARIJUANA PROGRAM OF 2004
The Medical Marijuana Program (MMP) arrived to law in 2004 from the legislative approval of Senate Bill 420. It was the state's attempt ""to implement an agenda for your safe and affordable distribution of marijuana to everyone patients in medical necessity of marijuana,"" as the Compassionate-Use Act of 1996 (Prop 215) encourages the State and Federal government to perform.
The MMP improves entry to medical cannabis for qualified patients by approving collectives and cooperatives.
""(3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.""
What Steve Cooley doesn't manage to understand is non-profit storefront Medical Cannabis Dispensing Collectives/Cooperatives include the distribution aspect of ""cultivation projects"". Just like a collective cultivation farm wouldn't have customers arrived at the farm to have their tomatoes, they might have to have their collective tomatoes at the farmer's market or distribution location– that's how medical cannabis collective cultivations occur. Grown in a location for safety along with other reasons, then distributed at another location.
The MMP procedes talk about all the criminal statutes that qualified patients and primary caregivers are exempt from. In section 11362.765, it says: ""shall 't be 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 each of these 1 by 1:
11359: [possession for sale],
11360: [""transports, imports into this state, sells, furnishes, administers, or gives away""- or purports to or attempts to complete any of those],
11366: [Every person who opens or maintains any where for that function of unlawfully selling, handing out, or using any controlled substance]
11366.5 [Managing a place for manufacture, storage and/or the distribution of the controlled substance]
11570 [Every building or place used for that function of unlawfully selling, serving, storing, keeping, manufacturing, or handing out any controlled substance, precursor, or analog per this division, every building or place wherein or on which those acts happen, is a nuisance which should be enjoined, abated, and prevented, and then for which damages could possibly be recovered, whether it can be a public or private nuisance.]
The Health and Safety Code section 11360 specifically says ""sells"". Not only that, it also 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, along with the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California so as collectively or cooperatively growing marijuana for medical purposes, shall not solely around the basis of that fact be at the mercy of 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 just like the manufacturing of my vicodin is situated outside of my pharmacy.
The Medical Marijuana Act also calls around the State Attorney General to deliver guidelines associated with medical cannabis:
""The bill would require Attorney General to develop 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 these guidelines to assist law enforcements do their jobs based on State law and to help you patients understand those laws.
The guidelines state non-profit storefront Medical Cannabis Dispensing Collectives and Cooperatives may be legal under state guiidelines if they followed the rules along with the above laws.
""It will be the opinion on this Office a properly organized and operated collective or cooperative that dispenses medicinal marijuana via a storefront could be lawful under California law""
The State Attorney General confirms what what the law states says. The Attorney General will be the highest-ranking legal employee in the State of California. His office also replied to the difficulties raised in Los Angeles by City Attorney's office.
According for 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, police officers officials and advocates from around the state had called seeking clarity on medical marijuana laws.
Mr. Brown has issued guidelines that offer nonprofit sales of medical marijuana, she said. But, she added, with laws being interpreted differently, ""the final answer could eventually come from the courts.""
So what can the courts say?
PEOPLE v. MENTCH
The District Attorney's office would have you think that the Mentch decision outlaws non-profit storefront Medical Cannabis Dispensing Collectives/Cooperatives and makes ""all sales illegal"" but that decision has to complete using the definition of ""primary caregiver"" not sales.
Mentch had 82 marijuana plants growing in the home and that he sold the medicine to 5 those who located his home using the primary function of buying cannabis. The most of the plants in Mentch's cbdforsalenearme.com home belonged to him as they testified. Their operations has not been a collective or a cooperative nor a storefront. Mentch owned Hemporium, a for-profit care giving and consultancy business, not just a non-profit collective or possibly a cooperative.
Based off the evidence the courts concluded that Mentch's operation was primarily a for-profit commercial venture and had not been a primary caregiver for all those he supplied medical cannabis to from his home business. I've written about it comprehensive here.
So there you have what are the courts say, exactly what the State Attorney says, and just what 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 legislation along with the will in the people and prevent wasting time and resources to hurt medical cannabis patients especially just before Christmas. Especially when you will find over 7,000 untested rape kits the District Attorney claims to donrrrt you have the resources to deal with.