Federal Interference In State Medical Marijuana Ends… But Only For Those That Can Comply

Medical marijuana dispensary operators in California, especially those still battling the federal government, are rejoicing over a recent federal court ruling.  United States District Judge Charles R. Breyer ordered a federal injunction against one of the state’s oldest dispensaries be lifted, ruling the recently enacted Rohrabacher-Farr Amendment prohibits the federal government from prosecuting dispensaries that are following state law.  However, just a few weeks ago, following state law in California meant interpreting the AG Guidelines as protocols for medical marijuana dispensary operations as the state had no definitive or legal regulations.  That has changed.

Then Attorney General Jerry Brown penned the guidelines in 2008, which dispensaries, collectives and cooperatives took as the only guidance from the state at the time, and while many cities still did not have local regulations in place.  These guidelines, while not law, stated that storefront dispensaries may be in less legal jeopardy if they operated as not for profit, received all cultivated cannabis from legally qualified patients and caregivers and the business operated as a closed-loop by and for patients. 

Come now the end of the 2015 California legislative session where the current Governor Jerry Brown has signed a set of regulatory bills (AB 266, AB 243 and SB 643) that have completely turned his guidelines upside down:  no requirement to be not for profit, no requirement to be a patient or caregiver in order to cultivate or manufacture, no requirement to be a patient or caregiver to dispense...  So, getting in compliance with state law is going to be a fete for those that built their operating procedures around the AG Guidelines.  These guidelines did not spell out how to be legal but how medical marijuana operations might be lawful. 

In order to be considered for a state dispensary permit, the operation has to have local approval.  One of the many ways in which collectives and cooperatives interpreted the guidelines was to cut out the storefront and operate as a patient-direct garden.  Those that were willing to talk about their operations to local officials were told, “if you’re not running a storefront business, then you are not required to get a permit.”  Patient-direct collectives and cooperatives became the invisible method for fulfilling Prop. 215, but now that statewide regulations are in place, these operations are in jeopardy, as no local permit exists for them. 

Likewise, the new medical marijuana laws have torn apart the closed loop by not allowing vertical integration. Collectives and cooperative that felt forced to keep close tabs on the cultivation and manufacture of their medical cannabis products will be limited on what other permits for which they can apply – forcing them to let go of some of their operations.  Dispensaries are not even allowed to go pick up their products under the new rules, but are forced to hire a licensed third party transporter.  So, again, getting in compliance with the new state laws is going to be a task for many and possibly financially devastating, but you better do it because this compliance is now the only thing standing between you and the feds – who are still wringing their hands for the opportunity to make an example of someone.

Related links:

Medical Marijuana Ruling Highlights Federal, State Discord

http://www.governing.com/topics/health-human-services/tns-medical-marijuana-ruling.html

GUIDELINES FOR THE SECURITY AND NON-DIVERSION OF MARIJUANA GROWN FOR MEDICAL USE

http://ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuanaguidelines.pdf

Gov. Brown signs bill to regulate medical marijuana industry

http://www.pressdemocrat.com/news/4596903-181/gov-brown-signs-bill-to

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Patient Advocacy Network has provided compliance trainings, workshops and consultations for nearly 10 years and to well over a thousand dispensaries in California.  Contact PAN at (323) 334-5282 if you have any questions about compliance with local or state regulations.  We want to help as many Compassionate providers as possible continue to serve patients and thrive. 

Sacramento Drafts Statewide Medical Cannabis Guidelines

 

State Assembly Member Tom Ammiano has ‘introduced’ AB 473 and while the bill appears in the legislative counsel’s digest at http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_0451-0500/ab_473_bill_20130219_introduced.html, the only statement regarding the intent of the bill is to “provide a comprehensive state regulatory structure for medical cannabis cultivation, processing, testing, and distribution.” 

The full text of the bill is not yet published but the media reported extensively last week that Ammiano’s proposed regulatory body for collectives is the Department of Alcohol Beverage Control (ABC). 

Ammiano Suggests Marijuana Industry Be Policed By Alcohol Board [Updated]

http://sfist.com/2013/03/20/ammiano_suggest_marijuana_industry.php

Medical Marijuana Patients Wary of Booze Cops Regulating Pot

http://www.eastbayexpress.com/LegalizationNation/archives/2013/03/20/medical-marijuana-patients-wary-of-booze-cops-regulating-pot

The idea has sparked a variety of criticism.  Statewide guidelines seem like a sane prospect for collectives operating in areas where local regulations are non-existent, until one considers the jeopardy of placing every cultivator, hash maker, baker, trimmer… under a ‘comprehensive structure’ while federal prohibition is still in full affect.  Ammiano has urged that his legislation is needed in order to appease federal authorities citing Colorado’s statewide regulations.  However, Colorado continues to suffer federal interference and local bans despite a statewide program.  

Law enforcement officials around California are not keen on an alcohol – medical cannabis legal fusion.  Many patient advocates aren’t either, fearing the exposure of patients intimately involved with cannabis production, and additional fees and taxes that will put ma & pop collectives out of operation.  Others debate whether this is a step toward an adult recreation model and if that is a good or bad thing when considering this bill is supposed to be about Prop. 215, and not-for-profit patient collectives.  Some see this proposal as Ammiano’s attempt to generate significant revenue to fund a large enforcement bureaucracy off the backs of patients.  How much is a gram of cannabis going to cost when the cultivator pays a fee to grow, trimmer has to be licensed, mandatory testing fees, the dispensary is paying additional State fees and taxes? 

State Senator Mark Leno has hinted that he is working on a proposal as well.  Last year his bill was based on the State Attorney General Guidelines leaving enforcement to the municipalities.  Leno claims to be a patient advocate and concerned about affordable access to medical cannabis.  We shall see what/if he presents in this 2013 session.

What Would You Show The Judge & Jury?

This is what every person closely involved with Medical Cannabis Collective activities should ask oneself because increasingly police will state during an encounter, “Show me what you’d show the judge.”   

While one should never say much during a law enforcement encounter, having proper documentation in a Compliance Binder on hand at the time of the encounter can do the talking for you.

PAN offers Medical Cannabis Compliance Seminars to help Collectives and all their operations stay safe.  Below are some things to consider when preparing documents for the Collective and off-site providers. 

Documents:

Articles of Incorporation, State Seller’s Permit, Business License(s), Other requisite permits, i.e., Tobacco Seller’s Permits – To avoid unnecessary scrutiny from local authorities,  Collectives* should  hold all necessary permits and licenses and pay all requisite taxes. 

Patient and Caregiver Collective Membership Applications/Registration/ Agreements – Any and all persons involved with the operations of a Collective including cultivation, processing, storage, testing, transport, dispensing, administration and management should be a legally qualified patient or caregiver** under State law and be a registered member of the Collective.  Collective Membership Agreements may also include the organization’s rules, policies, guidelines and reasons membership may be revoked to further demonstrate compliance with closed-loop membership and activities, and a non-diversion policy.

Collective Cultivation Agreements, Collective Transportation Agreements, Medical Cannabis Processing Agreements, Medical Cannabis Testing Agreements - Collective members that produce, process, store, test and transport medical cannabis on behalf of a Collective should be able to account for the amount of cannabis present by the number and need of the patients being served.  These providers should be able to demonstrate a direct relationship with their Collective(s)***/patients and all parties agree to abide by the law.  Agreements should be severed upon any reasonable suspicion that illegal activity is taking place by any party.  

Other Documentation – Depending upon the circumstances, one’s Compliance Binder may also include letters of reference and support, thank you letters, community memberships, awards and acknowledgements or other types of ‘character references.’

Multiple Copies – Be prepared to then make multiple copies of your binder to be kept in the right places and with the right people.

Recordkeeping – “Non-profit operations” are considered acceptable by California law enforcement.  Should this become an issue, expect to be audited.  Persons involved in the medical cannabis profession are expected to only make what is ‘reasonable’ for their time and expenses and to pay requisite taxes.  Consult a good accountant to establish clear recordkeeping and tax history and make sure to understand IRS code 280E. 

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Patients and caregivers involved in collective cultivation, processing, testing, transportation and dispensing run the risk of criminal prosecution, whether local or federal.  The general concern is quantity.  When providing goods and services for a collective, the quantity of cannabis on hand is generally greater than that for personal use putting these Collective members in the position of ‘proving’ that all cannabis is by and for legally qualified patients only. 

While State medical cannabis laws are not protection from Federal interference,  with preparation, patients, caregivers and their collectives can demonstrate that all cannabis related activities are conducted in the spirit of State law.

Having proper records and documentation at the time of arrest may assist the defendant in having a speedy trial, which has demonstrated to largely benefit defendants.  

While these precautions are not protection from Federal prosecution, proper documentation at the time of a DEA encounter may help determine if Federal authorities choose to file charges or not.  Smash and grab raids suck but they are better than Federal prosecution and prison.   

In California our voter-approved law is very murky and the “GUIDELINES FOR THE SECURITY AND NON-DIVERSION OF MARIJUANA GROWN FOR MEDICAL USE August 2008, while not law, is regarded by law enforcement as the set of guidelines for determining legal medical marijuana from illicit drug activity.  For purposes of collectives the guidelines mainly focus on: closed-loop, patient-to-patient, collective member activities; State taxes and non-profit operations. 

Some things to know:

No amount of paperwork will prevent arrest.  If a cop chooses to arrest you, he will, no matter what.  However, arrest does not always mean prosecution.

There are no sure things, not even in court.  Even with the best defense, some judges are just impossible, making for lengthy court cases and appeals.

Make sure you know your rights during a law enforcement encounter.  96% of all criminal convictions come from what you say in the first 5 minutes of a law enforcement encounter.

You are only as safe as those around you.  If someone else along the chain is conducting illegal activity it may lead to investigations of other collective members/activities.  Know who you are working with.

PAN offers legal training for Collectives – Law Enforcement Encounter Training & Raid Preparedness Seminar.  “This is the most valuable training I’ve ever had!” – from dozens of participants

* All of the above also pertains to Medical Cannabis ‘Cooperatives.’

**  While legally a voluntary program, providers of goods and services to their Collectives are encouraged to get the California State Medical Marijuana ID Card. 

*** While not law, there is debate among law enforcement and law makers regarding ‘one patient, one collective,’ meaning a patient or a caregiver can only be a member of one collective at any one time and therefore only provide goods and services to one collective. Working with multiple Collectives requires good record keeping and careful attention to detail.

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Contact PAN to set up your seminar or training.

Be Safe!!

How AB 2312 Impedes Safe, Affordable Access & Why SB 1182 Is A More Workable Law

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In reaction to US Attorneys’ threats on the State of California to shut down all medical cannabis collectives, Assembly Member Tom Ammiano introduced Assembly Bill 2312, the Medical Marijuana Regulation and Control Act.  The 6,500-word Act imposes a regulatory system that impacts all areas of the State that have not yet implemented a local medical cannabis ordinance.  Collectives in cities such as San Francisco and Oakland may be grandfathered. 

AB 2312 is an example of a bill that takes-away-your-freedom-in-order-to-protect-you.  Assembly Member Ammiano will have you believe that this law will appease federal authorities and end the attack on our State’s medical cannabis laws.  (It didn’t work for Colorado.)  Unfortunately,  AB 2312 creates a large bureaucracy of non-elected, non-voter-accountable, politically appointed individuals that will decide the fate of collectives across the State.  Collectives pending consideration must close, pay yet-to-be-determined fees and attend an unknown number of hearings prior to any potential approval. 

The proposed legislation broadly requires that every dispensary site, every garden, every cannabis kitchen, storage site, curing location, concentrate production, testing – you name it – if it comes in contact with medical cannabis, the patient must be approved by the newly created Board of Medical Marijuana Enforcement as a “Mandatory registrant.”  The bill does not allow for any citizen oversight, is ripe for corruption and defeats any attempt to keep medical cannabis affordable.  Legal professionals point to provisions that prevent patients from obtaining a physician’s recommendation as unconstitutional.  The bill’s aggressive supporters do so with questionable intent.

Senate Bill 1182 introduced by State Senator Mark Leno simply proposes to adopt the currently non-binding ‘Attorney General Guidelines’ as law and protects patients from prosecution for “marijuana commerce” as long as all activities are compliant with the Guidelines.  Many collectives argue that they already comply with the current AG Guidelines: maintaining a not-for-profit, private, closed-loop organization made up only of legally qualified patients and caregivers.   

The digest for SB 1182  states:

This bill (1) provides that a cooperative, collective or other business entity that operates within the Attorney General's (AG) guidelines shall not be subject to prosecution for marijuana possession or commerce, as specified; and (2) provides that where such an entity operates within the AG's guidelines, the entity and its employees, officers and members shall not be subject to prosecution for marijuana commerce because the entity or its employees, officers, or members received compensation for actual expenses incurred in carrying out activities in compliance with the guidelines.

SB 1182 continues,  “Existing law directs the AG to develop and adopt appropriate guidelines to ensure the security and nondiversion of medical marijuana.”  Senator Leno’s workable proposal puts medical cannabis compliance in the hands of one Statewide elected official, our Attorney General, who is more easily accessible and approachable  than the all-appointed, 9-member Board of Medical Marijuana Enforcement.  SB 1182 does not require lengthy, expensive State registration and approval.  Municipalities remain responsible for implementing local zoning ordinances, which require local input. 

Senator Leno states SB 1182 is a “focused solution,” which is true enough when compared to  the convoluted approach of AB 2312.  All medical cannabis patients and physicians will be impacted by these potential laws and are encouraged to learn more and act accordingly.  Anyone with questions is encouraged to contact PAN. 

“What happened to Topanga Caregivers?”

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PAN received many inquiries about “What happened to Topanga Caregivers?”

On April 20, 2012, Topanga Caregivers in Woodland Hills was raided by LAPD with a search warrant signed by an LA Superior Court judge at 10:00 a.m. that morning.  The warrant also included one director’s home and vehicle.  Six people were arrested that day: three collective members on duty including the director and three security guards.  Currently charges include possession with intent for the director and conspiracy charges for his colleagues.   It’s unconfirmed the charges on the security guards.  All are out on bail.   Arraignment is set for May 18, 2012.

The raid was fairly typical: cameras removed; electronics tampered, destroyed, seized; cell phones, car keys seized; safes destroyed; all areas, furniture, shelves, drawers, boxes, containers searched, scattered; all cash seized; all cannabis flowers seized; some edibles and concentrates left behind. 

Patients report it was a terrifying scene and some officers were overly aggressive.  Officers allegedly boasted this was the beginning of a huge crackdown in the west SFV similar to that in north valley.  Specifically, the Topanga Division of the LAPD appears to be initiating an operation similar to that of the Devonshire Division; their “mission” – to shut down every collective in their jurisdiction, which they did.  Just ask the former director of Cannamed of Northridge who is still fighting her charges nearly three years on and maintaining her innocence. 

Topanga Caregivers states they are innocent, too.  They maintain: they have all applicable permits and licenses; they have complied with paying all applicable fees and taxes; they have successfully registered for every LA ‘list;’ they operated in the spirit of our State laws and “The Attorney General Guidelines;” they provided for a large compassion program.   PAN is witness to some of the collective’s open and cooperative relationships with their council member’s office as well as LAPD detectives investigating violent armed robberies.  

Like Cannamed of Northridge, Topanga Caregivers argues they operated within all regulatory schemes set forth by local and state authorities.  To charge any of these people with possession with intent or other related offences is nothing short of entrapment.   To point guns in the faces of peaceful, law-abiding patients is reprehensible.  For LA to continue to let this happen is shameful.

So, the next question is then, “Why?”

Politics.  The failure of LA City Council to properly regulate medical cannabis collectives is ignorant.  SF, Oakland, Berkeley and a few other NorCal cities have had reasonable success implementing Prop. 215 and S.B. 420 activities in their communities.   LA City Attorney Carmen Trutanich and his assistant Jane Usher have wasted hundreds of thousands of dollars, possibly millions, defending the City’s illegal and unworkable ordinance defining their intentions as their “mission.”  

This toxic atmosphere allows the LAPD to abuse their authority and terrorize law-abiding citizens while City Hall turns a blind eye.  It creates a very unsafe situation for patients who learn to fear contacting the local police in an emergency, making patients sitting ducks for violent crimes.  Collectives don’t create crime.  Bad laws create crime.

PAN’s question is, “What is the ‘mission’ of the LA medical cannabis community?”

Those interested in participating in court support can call (323) 334-5282. 

California Medical Cannabis Bill Watch

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California State Capitol

There are several bills recently introduced in the California legislature that mention cannabis or attempt to regulate medical marijuana outright.  The bill that was very troublesome fortunately has been amended to a point that it will not affect patients.  AB 2552, introduced by California Assembly member Norma Torres, in its original draft, was designed to make it so that anyone with any cannabinoids in their system would be subject to criminal penalties and loss of their driver’s license:

    This bill would make it a crime for a person who has any level of cannabinoids or synthetic cannabinoid compound, as defined, in his or her blood or urine to drive a vehicle. This bill would establish a rebuttable presumption that a person had cannabinoids or synthetic cannabinoid compound in his or her blood or urine at the time he or she drove a vehicle if the substance is present in his or her blood or urine at the time of a chemical test performed within three hours after driving. This bill would impose a state-mandated local program by expanding the definition of a crime.  

However, the two bills that all cannabis patient advocates need to review, watch and speak-out upon are AB 2312 introduced by Assembly Member Tom Ammiano and SB 1182 introduced by State Senator Mark Leno.  Patient Advocacy Network urged patient advocates around the State to weigh-in on these bills to get feedback.  What we learned was very valuable and paralleled some of our experiences. 

AB 2312 is said to be heavy-handed and over-reaching in its attempt to fully regulate collectives on a statewide level.  It is argued that this legislation could effectively regulate all collectives out of existence.  Tom Ammiano’s office states it sat with a broad coalition of patients, advocates and providers, which is not true.  PAN met with Ammiano’s staff that indicated they “did not want to hear from a bunch of patients that did not want to be regulated.”  This rhetoric does not come from the patient community; we WANT workable regulations. 

The Assembly Member’s office appears to have been cooped by the self-professed marijuana “labor” movement.  Their agenda was thrust upon Ammiano’s office by those involved with the voter initiative Medical Marijuana Regulation, Control and Taxation Act that was not supported by patient advocates and failed as an initiative.  AB 2312 does not promise to be workable but cumbersome and favorable to a select few handpicked individuals.  Collectives would have to shut down statewide until an appointed board approves their registration.

Please read it.  Not one cultivator wants this law given the current federal climate!! Unfortunately, AB 2312 was not drafted to be proactive but was a pure reaction to threats from federal authorities.  Even advocates in Colorado have tried to express to our legislature that there is no State law that will keep the feds from taking action against medical marijuana patient collectives and cooperatives.  We must have a change in federal policy as addressed in PAN’s Position Paper.

Leno’s SB 1182 points back to the Attorney General Guidelines For The Security And Non-Diversion Of Marijuana Grown for Medical Use issued by the Attorney General in August 2008 and states patient collectives would follow these guidelines not as a matter of AG opinion but as a matter of law.  While not a perfect piece of legislation, Leno’s bill is much more workable and in line with what ethical collectives are doing already.  This legislation does not try to shut everyone down, as does AB 2312. 

SB 1182 was recently amended in the Senate Public Safety Committee.  AB 2312 has passed the Assembly Public Safety Committee and is headed for reading in the Assembly Appropriations Committee. 

Follow PAN @PAN4Compassion for news updates.