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Monday, September 14, 2015

Five Things to Know About "Regulated" Medical Marijuana in California

Posted By on Mon, Sep 14, 2015 at 12:29 PM

click to enlarge legalize-pot.jpg
Just before midnight on Friday, lawmakers in Sacramento agreed upon and passed onto Gov. Jerry Brown a package of legislation that promises to regulate the state's wild, woolly, and highly profitable medical cannabis industry.

Last-minute brinkmanship as well as an unlikely agreement between police and pot growers was required before the bills — Assembly Bill 266, Senate Bill 643, and Assembly Bill 243 — could escape the Legislature. Previous attempts to regulate cannabis failed last year and in 2013. 

For the first time since Senate Bill 420 passed in 2003, there is clarity as to what you can and  can't do when growing, selling, transporting, and using medical marijuana in California as allowed under 1996's Prop. 215 — emphasis on some.

What's changed? For now, very little. Within a few years? Much — maybe.

For the confused, here are five basic facts to keep in mind as you grapple with reality in this "new" landscape.

The three bills are Assembly Bill 266, authored by Assemblymen Rob Bonta (D-Alameda), Reggie Jones-Sawyer (D-Los Angeles), and Ken Cooley (D-Rancho Cordova); Senate Bill 643, written by state Sen. Mike McGuire (D-Healdsburg); and Assembly Bill 243, written by Assemblyman Jim Wood (D-Healdsburg).

To create them took cooperation from the League of California Cities, the Police Chiefs' Association, the United Food and Commercial Workers (still the only labor union to organize cannabis workers), and the cannabis industry.

Together, the laws create a new Bureau of Medical Marijuana Enforcement under the control of the governor, and call on various other state departments — Public Health, Agriculture, Fish and Wildlife — to get involved in marijuana in some way. 

But for now, remember:

1. Nothing's changed yet.

If you went out to buy cannabis last week and plan to buy some more today, if you have a crop in the soil or under the lights, or if you absolutely despised the idea of medical marijuana before Friday's historic detente, take solace: everything is exactly as it was before.

Nothing in Friday's three bills takes effect immediately. Businesses won't be required to apply for licenses until 2018, meaning anyone and everyone interested in the "unregulated free for all" that medical cannabis in California has become can still participate.

All of this, of course, presumes Gov. Jerry Brown will actually sign the damn thing into law. He is expected to do so, but you never know.

About those rules and those licenses. How much will you have to pay to grow cannabis, and how much can you grow?

2. Most of the actual rules are still unwritten.

The "historic agreement" to regulate medical cannabis is mostly just an agreement to regulate. As for what the regulations are? That's yet to be determined. 

There are very few specifics in any of the bills. Writing and enforcing the actual rules is left up to the newly-created Bureau of Medical Marijuana Regulation. That agency will figure out what a dispensary or grow license will cost, how many licenses will be handed out, and all the other myriad details left out of the bills.

There are some things laid out, such as the size of "small" and "medium" farms. The biggest cultivation sites allowed outdoors would be up to one acre, but there's no plant counts defined. Nor is there a cost. 

Even the regulatory package as written and passed onto the governor could change. Hardly had the ink dried on Friday night's legislation when the stakeholders who created the thing began talking about making tweaks.

In an e-mail blast Monday morning, the California Cannabis Industry Association — engaged in the lawmaking process all year — said that it would pursue "follow up legislation" and use the Bureau's "rulemaking process to address these issues."

3. California is complying with federal directive, but marijuana is still technically illegal.

Plenty cannabis industry players remember 2011, when the federal Justice Department used federal law prohibiting drug-dealing near schools to shut down a still-unknown number of dispensaries across the state (some say hundreds, others say thousands).

Those same players watched with frustrated fury as other states like Colorado and Washington went ahead and legalized recreational cannabis, and created profitable industries without federal interference.

A 2013 memo authored by one of then-Attorney General Eric Holder's deputies stated that the feds would likely to stay away from state-legal medical marijuana, provided that the states tightly regulated cannabis activity.

This, at long last, appears to do that — but that doesn't  mean that marijuana is legal on any level.

As many attorneys will tell you, Prop. 215 does not provide the "right" to grow and use cannabis. Rather, it's an "affirmative defense" from prosecution for cannabis, which is still illegal under federal and local law.

That affirmative defense is still there, according to legal experts. Meaning — again — things are still the same. 

4. Anyone can still get a medical cannabis recommendation.

Police and law and order-minded politicians have for almost 20 years hated the ease with which medical marijuana can be obtained in California. When Prop. 215 passed in 1996, many lawmen were expecting a world in which only a few gravely ill or dying patients were able to nibble on a pot brownie before passing on — not a multibillion-dollar industry fueled by the young and the healthy getting dabbed out.

Well, too bad. That's the world we have, and that world will continue. Efforts to more tightly restrict which physicians could write recommendations — remember, medical marijuana is an illegal drug and is not prescribed; the "card" is physical proof of a doctor's recommendation — were defeated in committee by the California Medical Association, according to people involved in the process. 

Yes, there is language in the bills that say only an "attending physician" can write a medical marijuana recommendation. Luckily for the medical marijuana recommendation-writing industry, an attending physician can be anyone selected by the patient.

This free for all, at least, will continue.

5. Prop. 215 stands — as do the bans.

Patients can still grow their own cannabis without a state license. Meanwhile, cities and counties can still outlaw cannabis activity.

This may sound contradictory — and it is — but this is where we stand currently.

The regulatory bills do away with the "nonprofit collectives and cooperatives" allowed under Senate Bill 420, passed in 2003. That law said that patients could get together and organize a grow — meaning, people in wheelchairs could give resources to an able-bodied person, who would provide cannabis on their behalf.

That law has also meant that storefront businesses selling millions of dollars of cannabis product every year had to be nonprofits. No more of that. Dispensaries can be for-profit businesses.

None of this affects a patient's right to access marijuana under Prop. 215, which is expressly defended in these bills.

But in order for the bills to be passed, localities had to have total control. That means restrictions like Measure D in Los Angeles stand. It also means cities and counties are still free to outlaw dispensaries and cultivation entirely, as Fresno County has done.

So if a patient can legally have up to six plants under Prop. 215, but they live in Fresno, where it's outlawed... ?

Don't ask us. Expect points like these to be taken up in court.

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About The Author

Chris Roberts

Chris Roberts has spent most of his adult life working in San Francisco news media, which is to say he's still a teenager in Middle American years. He has covered marijuana, drug policy, and politics for SF Weekly since 2009.

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