HomeMy WebLinkAbout2009/07/21 Additional Information
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Srate of California. Departmenr of Jusrice
OFFICE OF THE ATTORNEY GENERAL
Edmund G. Brown Jr.
News Release \
FOR IMMEDIATE RELEASE
August 25, 2008
Contact: Christine Gasparac (916) 324-5500
Atty. General Brown Issues Medical
Marijuana Guidelines for Law Enforcement
and Patients
SACRAMENTO--California Attorney General Edmund G. Brown Jr. today released guidelines
that, for the first time since California's Proposition 215 was passed in 1996, clarify the state's
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laws governing medical marijuana and provide clear guidelines for patients and law
enforcement to ensure that medical marijuana is not diverted to illicit markets.
"California voters approved an initiative'legalizing medical marijuana, not street drugs.
Marijuana intended for medicinal use should not be sold to non-patients or on illicit markets,"
Attorney General Brown said. "These guidelines will help law enforcement agencies perform
their duties in accordance with California law and help patients understand their rights under
Proposition 215."
This landmark document marks the first attempt by a state agency to define the types of
organizations that are legally permitted to dispense marijuana. Brown's guidelines affirm the
legality of medical marijuana collectives and cooperatives, but make clear that such entities
cannot be operated for profit, may not purchase marijuana from unlawful sources and must
. .
have a defined organizational structure that includes detailed records proving that users are
legitimate patients.
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"We welcome the Attorney General's leadership and expect that compliance with these
guidelines will result in fewer unnecessary arrests, citations and seizures of medicine from
qualified patients and their primary caregivers," said Americans for Safe Access Attorney Joe
Elford. "No one benefits from confusiqn over the law. These guidelines will help patients and
law enforcement better understand Cali.fornia's medical marijuana laws."
In 1996, California voters approved Proposition 215, an initiative that exempted patients and
, , .
their primary caregivers from criminal liability under state law for the possession and cultivation
of marijuana. In addition, The Medical Marijuana Program Act (MMA), enacted by the
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Legislature in 2004, intended to further clarify lawful medical marijuana practices by
establishing a voluntary statewide identification card system, specific limits on the amount of
medical marijuana each cardholder could possess, and rules for the cultivation of medical
marijuana by collectives and cooperatives. According to Americans for Safe Access, California
has more than 200,000 doctor-qualified medial cannabis users.
Several law enforcement agencies have requested that the Attorney General issue guidelines
regarding the lawful possession, sale and cultivation of marijuana for medicinal purposes.
These law enforcement agencies believe that individuals and cartels, under the cover of
Proposition 215, have expanded illegal cultivation and sales of marijuana, which has led to an
increase in drug-related violent crime. Most researchers agree that the U.S. marijuana crop
has seen a sharp increase in the past decade. A report, "Marijuana Production in the United
States" by drug-policy researcher Jon Gettman, estimated that in 2006, more than 21 million
pot plants were grown in California at a street value of up to $14 billion.
Fresno Police Chief Jerry Dyer, President of the California Police Chiefs Association, praised
Brown for establishing these guidelines. "Since Proposition 215 was passed, the laws
surrounding the use, possession and distribution of medical marijuana became confusing at
best. These newly established guidelines are an essential tool for law enforcement and provide
the parameters needed for consistent statewide regulation and enforcement."
The guidelines encourage patients to participate in the California Department of Public Health's
registration program to obtain a medical marijuana identification card. The identification card
protects the holder from arrest for marijuana possession and is one of the best ways to ensure
the non-diversion of medical marijuana. Collectives and cooperatives are advised to keep files
on their patients with documented verification of their qualified status.
A copy of the Guidelines is attached.
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IWMUNI> G. BROWN JR. D E PARTMENTOF JUSTICE
Attorney General State oICalifornia
GUlI>ELINES FOR THE SECURITY AND NON-DIVERSION
OF MARIJUANA GROWN FOR MIWICAL USE
AII!:II.,.t 200S
In 1996, California voters approved an initiative that exempted certain patients and their primary
caregivers from criminal liability under state law for the possession and cultivation of marijuana .
In 2003, 'the Legislature enactcd additional legislation relating to medical marijuana.
One of those statutes requircs the Attorney General to adopt "guidelines to ensure the security
and nondiversion of marijuana grown lar medical use." (Health & Sat'. Code, 9 11362.8 I (d).I)
To fultill this mandate, this Office is issuing the tallowing guidclines to (I) ensure that marijuana
grown for medical purposes remains secure and does not find its way to non-patients or illicit
markets, (2) help law enforcement agencics perform their duties effectively and in accordance
with California law, and (3) help patients and prirnary caregivers understand how they may
cultivate, transport, possess, and use medical marijuana under Calitarnia law.
I. SUMMARY OF ApPLICABLE LA w
A. California Penal Provisions Relating to Marijuana.
The possession, sale, cultivation, or transportation of marijuana is ordinarily a crime under
Calitarnia law. (See, e.g., 9 11357 [possession of marijuana is a misdemeanor]; 9 11358
[cultivation of marijuana is a felony]; Veh. Code, 9 23222 [possession of less than I oz. of
marijuana while driving is a misdemeanor]; 9 I] 359 [possession with intent to sell any amount
of marijuana is a felony]; S 11360 [transporting, selling, or giving away marijuana in California
is a felony; under 28.5 grams is a misdemeanor]; S I 1361 [selling or distributing marijuana to
minors, or using a minor to transport, sell, or give away marijuana, is a felony].)
B. Proposition 215 - The Compassionate Use Aet of 1996.
On November 5, 1996, California voters passed Proposition 215, which decriminalized the
cultivation and use of marijuana by seriously ill individuals upon a physician's recommendation.
(911362.5.) Proposition 215 was enacted to "ensure that seriously ill Californians have the right
to obtain and use marijuana for medical purposes where that medical use is deemed appropriate
and has been recommended by a physician who has determined that the person's health would
benefit from the use of marijuana," and to "ensure that patients and their primary caregivers who
obtain and use marijuana far medical purposes upon the rccommendation of a physician are not
subject to criminal prosecution or sanction." (s I I 362.5(b)(1 )(A)-(B).)
The Act further states that "Section 11357, relating to the possession of marijuana, and Section
11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's
primary caregiver. who possesses or cultivates marijuana tar the personal mcdical purposes of
the patient upon the writtcn or verbal recommendation or approval of a physician." (s 1362.5(d).)
Courts have found an implied defcnsc to the transportation of medical marijuana when the
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"quantity transported and the method, timing and distance of the transportation are reasonably
related to the patient's current medical needs." (People v. Trippel (1997) 56 Cal.AppAth 1532,
1551.)
C. Senate Bill 420 - The Medical Marijuana Program Act.
On January 1,2004, Senate Bill 420, the Medical Marijuana Program Act (MMP), became law.
(~S 11362.7-1] 362.83.) The MMP, among other things, requires the California Department of
Public Health (DPI-I) to establish and maintain a program for the voluntary registration of
qualified medical marijuana patients and their primary caregivers through a statewide
identification card system. Medical marijuana identification cards are intended to help law
enforcement officers identify and verify that cardholders are able to cultivate, possess, and
transport certain amounts of marijuana without being subject to arrest under specific
conditions.(~s 11362.71 (e), 11362.78.)
It is mandatory that all counties participate in the identification card program by
(a) providing applications upon request to individuals seeking to join the identification card
program;
(b) processing completed applications;
(c) maintaining certain records;
(d) following state implementation protocols; and
(c) issuing DPH identification cards to approved applicants and designated primary caregivers.
(~ 11362.71(b).)
Participation by patients and primary caregivers in the identification card program is voluntary.
However, because identification cards offer the holder protection from arrest, arc issued only
after verification of the cardholder's status as a qualified patient or primary caregiver, and are
immediately verifiable online or via telephone, they represent one of the best ways to ensure the
security and non-diversion of marijuana grown for medical use.
In addition to establishing the identification card program, the MMP also defines certain terms,
sets possession guidelines for cardholders, a~d recognizes a qualified right to collective and
cooperative cultivation of medical marijuana. (~s 11362.7, 1]362.77, 11362.775.)
I). Taxability of Medical Marijuana Transactions.
In February 2007, the California State Board of Equalization (BOE) issued a Special Notice
confirming its policy of taxing medical marijuana transactions, as well as its requirement that
businesses engaging in such transactions hold a Seller's Permit.
(hUp:/ /www.boe.ea.gov/news/pdf/medseller2007.pdr.)
According to the Notice, having a Seller's Permit does not allow individuals to make unlawful
sales, but instead merely provides a way to remit any sales and use taxes due. BOE further
clarified its policy in a June 2007 Special Notice that addressed several frequently asked
questions concerning taxation of medical marijuana transactions.
(htto://www.boe.ea.gov/news/odf/! 73. odf.)
E. Medical Board of California.
The Medical Board of California licenses, investigates, and disciplines California
physicians. (Bus. & Prof. Code, ~ 2000, et seq.) Although state law prohibits punishing a
physician simply for recommending marijuana for treatment of a serious medical condition
(~ I I 362.5(c)). the Medical Board can and does take disciplinary action against physicians
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who fail to comply with accepted medical standards when recommending marijuana. In a
May 13, 2004 press release, the Medical Board clarified that these accepted standards arc
the same ones that a reasonable and prudent physician would follow when recommending
or approving any medication. They include the following:
I. Taking a history and conducting a good faith examination of the patient;
2. Developing a treatment plan with objectives;
3. Providing informed consent, including discussion of side effects;
4. Periodically reviewing the treatment's efficacy;
5. Consultations, as necessary; and
6. Keeping proper records supporting the decision to recommend the use of medical marijuana.
(http://www.mbc.ca.gov/board/media/rcleases_2004_05-13_marijuana.html.)
Complaints about physicians should be addressed to the Medical Board (1-800-633-2322 or
www.mbc.ca.gov). which investigates and prosecutes alleged licensing violations in conjunction
with the Attorney General's Oflice.
F. The Federal Controlled Substances Act.
Adopted in 1970, the Controlled Substances Act (CSA) established a federal regulatory system
designed to combat recreational drug abuse by making it unlawful to manufaetur~, distribute,
dispense, or possess any controlled substance. (21 U.S.C. ~ 801, et seg.; Gonzales v. Oregon
(2006) 546 U.S. 243, 271-273.) The CSA reflects the federal government's view that marijuana
is a drug with "no currently accepted medical use." (21 U.S.C. 9 812(b)( I ).) Accordingly, the
manufacture, distribution, or possession of marijuana is a federal criminal offense. (ld. at !i!i
841(a)(I),844(a).)
The incongruity between federal and state law has given rise to understandable confusion, but no
legal conflict exists merely because state law and federal law treat marijuana differently. Indeed,
California's medical marijuana laws have been challenged unsuccessfully in court on the ground
that they arc preempted by the CSA. (County of San Diego v. San Diego NORML (July 31,2008)
--- Cal.Rptr.3d m, 2008 WI. 2930117.)
Congress has provided that states arc free to regulate in the area of controlled subsl<lnces,
including marijuana, provided that state law docs not positively conflict with the CSA. (21
U.S.C. 9 903.) Neither Proposition 215, nor the MMP, eontliet with the CSA because, in
adopting these laws, California did not "legalize" medical marijuana, but instead exercised the
state's reserved powers to not punish certain marijuana offenses under state law when a
physician has recommended its use to treat a serious medical condition. (See City olGarden
Grove v. Superior Court (Kha) (2007) 157 Cal.App.4th 355, 371-373, 38]-382.)
In light of California's decision to remove the use and cultivation of physician recommended
marijuana from the scope of the state's drug laws, this Office recommends that state and local
law enforcement ofjieers not arrest individuals or seize marijuana under federal law when the
officer determines from the facts available that the cultivation, possession, or transportation is
permitted under California's medical marijuana laws.
II. DEFINITIONS
A. Physician's Recommendation: Physicians may not prescribe marijuana because the federal
Food and Drug Administration regulates prescription drugs and, under the CSA, marijuana is a
Schedule, I drug, meaning that it has no recognized medical use.
S
Physicians may, however, lawfully issuc a verbal or writtcn recommendation under California
law indicating that marijuana would be a beneficial treatment for a serious medical condition. (~
11362.5(d); Conant v. Walters (9th Cir. 2002) 309 F.3d 629, 632.) .
B. I'rimary Carcgiver: A primary caregiver is a person who is designated by a qualified patient
and "has consistently assumed responsibility for the housing, health, or safety" of the patient. (~
11362.5(e).) California courts have emphasized the consistency element of the patient~caregiver
relationship. Although a "primary caregivcr who consistently grows and supplies. . . medicinal
marijuana for a section 11362.5 patient is scrving a health need ofthc paticnt," somconc who
merely maintains a sourcc of marijuana does not automatically become the party "who has
consistently assumed responsibility for the housing, health, or safety" of that purchaser. (People
ex rei. Lungren v. Peron (1997) 59 Cal.AppAth 1383, 1390, 1400.) A person may serve as
primary carcgiver to "more than one" patient, provided that thc patients and caregiver all reside
in the samc city or county. (~ 1 I 362.7(d)(2).) Primary caregivers also may receive certain
compensation for their services. (~ 11362.765(c) ["A primary caregiver who receives
compensation for actual cxpenses, including reasonable compensation incurred for services
providcd . . . to enablc [a patient] to use marijuana under this article, or for payment for out-of-
pocket expcnses incurred in providing those services, or both, . . . shall not, on the sole basis of
that fact, be subject to prosecution" for possessing or transporting marijuana].)
C. QualificdPaticnt: A qualified patient is a person whose physician has rccommended the use
of marijuana to treat a serious illness, including cancer, anorexia, AIDS, chronic pain, spasticity,
glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
(~11362.5(b)(I)(A).)
D. Recommending Physician: A recommending physician is a pcrson who (1) possesses a
license in good standing to practice medicine in California; (2) has taken responsibility for some
aspcct of the medical care, treatment, diagnosis, counseling, or referral ofa patient; and (3) has
complied with acceptcd medical standards (as described by the Medical Board of California in its
May 13,2004 press rcleasc) that a reasonable and prudent physician would follow when
recommending or approving medical marijuana for the treatment of his or her patient.
III. GUII)ELlNES REGARf)(NG IN()IVII)UAL QUALIFIED PATIENTS AND PRIMARV CAREGIVERS
A. State Law Compliance Guidelines.
I. Physician Recommendation: Patients must havc a written or vcrbal recommendation for
medical marijuana from a liccnsed physician. (~ I I 362.5(d).)
2. Statc of California Mcdical Marijuana Identilication Card: Under the MMP, qualificd
paticnts and their primary caregivers may voluntarily apply for a card issued by DPH identifying
thcm as a person who is authorizcd to use, possess, or transport marijuana grown for medical
purposes. To help law enforcement officers verify the cardholder's idcntity. each card bears a
unique identification number, and a verification database is available online
(www.calmmp.ca.gov). In addition, the cards contain the name of the county hcalth department
that approved the application, a 24-hour verification telephone numbcr, and an expiration date.
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Gis 11362.71(a); I I 362.735(a)(3)-(4); 11362.745.)
3. Proof of Qual~fied Patient Status: Although verbal recommendations are tcchnically
permitted under Proposition 215, patients should obtain and carry written proof of their physician
recommendations to help them avoid arrest. A state identification card is the best form of proof,
because it is easily verifiable and provides immunity from arrcst if certain conditions are met
(see section III.BA, below). The next best forms of proof are a city- or county-issued patient
identification card, or a written recommendation from a physician.
4. Possession Guidelines:
a) MM Po' Qualified patients and primary caregivers who possess a state issued identification
card may possess 8 oz. of dried marijuana, and may maintain no more than 6 mature or 12
immature plants per qualified patient. (s I I 362.77(a).) But, if "a qualilied patient or primary
caregiver has a doctor's recommendation that this quantity does not meet the qualilied patient's
medical needs, the qualilied patient or primary caregiver may possess an amount of marijuana
consistent with the patient's needs." (S I I 362.77(b).) Only the dried mature proc.essed flowers or
buds of the female cannabis plant should be considered when determining allowable lJuantities of
medical marijuana for purposes of the MMP. (s I I 362.77(d).)
b) Local Possession Guidelines: Counties and cities may adopt regulations that allow qualified
patients or primary caregivers to possess medical marijuana in amounts that exceed the I\iIMP's
possession guidelines. Gi I 1 362.77(c).)
c) Proposition 215: Qualilied patients claiming protection under Proposition 215 may possess an
amount of marijuana that is "reasonably related to [their] current medical needs" (People v.
Tripl'el1l997) 56 Cal.AppAth 1532, 1549.)
B. Enforcement Guidelines.
I. Location of Use: Medical marijuana may not be smoked (a) where smoking is prohibited by
law, (b) at or within 1000 feet of a school, recreation center, or youth center (unless thc medical
use occurs within a residence), (c) on a school bus, or (d) in a moving motor vehicle' or boat. (S
11362.79.)
2. Use of Medical Marijuana in' the Workplacc or at Corrcctional Facilitics: The medical
use of marijuana need not be accommodated in the workplace, during work hours, or at any jail.
eorrectional facility, or other penal institution, (9 11362.785(a); Ross v. RagingWire TelecOll1ms..
Inc. (2008) 42 Cal.4th 920, 933 [under the Fair Employment and Housing Act, an employer may
terminate an employee who tests positive for marijuana use].)
3. Criminal Defendants, Probationers, and Parol.ees: Criminal defendants and probationers
may request court approval to use medical marijuana while they are released on bailor
probation. The court's decision and reasoning must be stated on the record and in the minutes of
the court. Likewisc, parolecs who are eligible to use mcdicalmarijuana may requcst that they be
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allowed to continue such use during the period of parole. The written conditions of parole must
reflect whether the request was granted or denied. Ui 11362.795.)
4. State of California Medical Marijuana Identification Cardholders: When a person invokes
the protections of Proposition 215 or the MM P and he or she possesses a state medical marijuana
identification card, officers should:
a) Review the identification card and verify its validity either by calling the telephone number
printed on the card, or by accessing DPH's card verification website
(http://www.calmmp.ca.gov); and
b) If the card is valid and not being used fraudulently, there are no other indicia of illegal activity
(weapons, illicit drugs, or excessive amounts of cash), and the person is within the state or local
possession guidelines, the individual should be released and the marijuana should not be seized.
Under the MMP, "no person or designated primary caregiver in possession ofa valid state
medical marijuana identification card shall be subject to arrest for possession, transportation,
delivery, or cultivation of medical marijuana." (s 11362.71 (e).) Further, a "state or local law
enforcement agency or officer shall not refuse to accept an identification card issued by the
department unless the state or local law enforcement agency or officer has reasonable cause to
believe that the information contained in the card is false or fraudulent, or the card is being used
fraudulently." (s 11362.78.)
5. Non-Cardholders: When a person e1aims protection under Proposition 215 or the MMP and
only has a locally-issued (i.e., non-state) patient identification card, or a written (or verbal)
recommendation from a licensed physician, officers should use their sound professional
judgment to assess the validity of the person's medical-use e1aim:
a) Ollicers need not abandon their search or investigation. The standard search and seizure rules
apply to the enforcement of marijuana-related violations. Reasonable suspicion is required for
detention, while probable cause is required for search, seizure, and arrest.
b) Officers should review any written documentation for validity. It may contain the physician's
name. telephone number, address, and license number.
c) If the officer reasonably believes that the medical-use claim is valid based upon the totality of
the circumstances (ineluding the quantity of marijuana, packaging for sale, the presence of
weapons, illicit drugs, or large amounts of cash), and the person is within the state or local
possession guidelines or has an amount consistent with their current medical needs, the person
should be released and the marijuana should not be seized.
d) Alternatively, if the orticcr has probable cause to doubt the validity ofa person's medical
marijuana claim based upon the facts and circumstances, the person may be arrested and the
marijuana may be seized. It will then be up to the person to establish his or her medical
marijuana defense in court.
e) Orticers are not obligated to accept a person's claim of having a verbal physician's
recommendation that cannot be readily verified with the physician at the time of detention.
6. Exceeding Possession Guidelines: If a person has what appears to be valid medical marijuana
documentation, but exceeds the applicable possession guidelines identified above, all marijuana
may be seized.
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7. Return of Seized Medical Marijuana: If a person whose marijuana is seized by law
enforcement successfully establishes a medical marijuana defense in court, or the case is not
prosecuted, he or shc may tile a motion for return of the marijuana. If a court grants the motion
and orders the return of marijuana seized incident to an arrest, the individual or entity subject to
the order must return the property. State law enforcement ofticers who handle controlled
substances in the course of their official duties arc immune from liability undcr the CSA. (2 J
U.S.C. 9 885(d).) Once the marijuana is returned, federal authorities arc free to exercise
jurisdiction ovcr it. (21 U.S.C. 99 812(c)(1 0), 844(a); City v[Garden Grove v.Superior Court
(Kha) (2007) 157 Cal.AppAth 355,369,386,391.)
IV. GUJI)ELlNES RECARDINC COLLECTIV~:S AND COOI'ERATIVES
Under California law, medical marijuana patients and primary caregivers may "associate within
the State of California in order collcctively or cooperativcly to cultivate marijuana for medical
purposes." (9 I J 362.775.) The following guidelines are meant to apply to qualified patients and
primary caregivers who come together to collectively or cooperatively cultivate physician-
recommended marijuana.
A. Business Forms: Any group that is collectively or cooperatively cultivating and distributing
marijuana for medical purposes should be organized and operated in a manner that ensures the
security of the crop and safeguards against diversion for non-medical purposes. The following
are guidelines to help cooperatives and collectives operate within the law, and.to help law
enforcement determine whether they are doing so.
I. Statutory Cooperatives: A cooperative must file articles of incorporation with the state and
conduct its business for the mutual benefit of its members. (Corp. Code, 9 1220 I, 12300.) No
business may call itselfa "cooperative" (or "coop") unless it is properly organized and registered
as such a corporation under the Corporations or Food and Agricultural Code. (ld. at 9 12311 (b).)
Cooperative corporations are "democratically controlled and arc not organized to make a prolit
for themselves, as such, or for their members, as such, but primarily for their members as
patrons." (ld. at 9 1220 I.) The earnings and savings of the business must be uscd for the general
welfare of its members or equitably distributed to members in the form of cash, property, credits,
or scrvices. (lbid.) Cooperatives must follow strict rules on organization, articles, elections, and
distribution of earnings, and must report individual transactions from individual members each
year. (Sce id. at!i 12200, et scg.) Agricultural cooperatives are likcwisc nonprofit corporate
entities "since they arc not organized to make profit for themselves, as such, or for their
members, as such, but only for their members as producers." (Food & Agric. Code, 9 54033.)
Agricultural cooperatives share many characteristics with consumer eoopcratives. (See, e.g., id.
at!i 54002, et seq.) Cooperatives should not purchase marijuana from, or sell to, non-members;
instcad, they should only provide a means for facilitating or coordinating transactions betwecn
members.
2. Collectives: California law does not define collectives, but the dictionary defines thcm as "a
business, farm, etc., jointly owned and operated by the members of a group." (Random House
Unahridged Dictionary; Random House, Inc. @ 2006.) Applying this definition, a collective
should be an organization that merely facilitates the collaborative efforts of patient and caregiver
9
members - including the allocation of costs and revenues. As such, a collective is not a statutory
cntity, but as a practical matter it might have to organize as some form of business to carry out its
activities. The collectivc should not purchase marijuana from, or sell to, non-members; instcad, it
should only providc a means for facilitating or coordinating transactions betwecn mcmbcrs.
B. Guidelines for the Lawful Operation of a Cooperative or Collective:
Collectives and cooperatives should bc organized with sufficient structure to ensure security,
non-diversion of marijuana to illicit markets, and compliance with all state and local laws. The
following are some suggestcd guidclines and practices for operating collective growing perations
to help ensure lawful operation.
I. Non-Profit Operation: Nothing in Proposition 215 or the MMP authorizes collectives,
cooperativcs, or individuals to profit from the sale or distribution of marijuana. (Sce, e.g., ~
11362.765(a) ("nothing in this section shall authorize. . .any individual or group to cultivate or
distribute marijuana for prollt"].
2. Business Licenses, Sales Tax, and Seller's Permits: The Statc Board of Equalization has
determined that medical marijuana transactions are subject to sales tax, regardless of whether the
individual or group makes a prollt, and those engaging in transactions involving medical
marijuana must obtain a Seller's Permit. Some cities and counties also require dispensing
collectives and cooperatives to obtain business licenses.
3. Membership Application and Verification: Whcn a patient or primary caregiver wishes to
join a collective or cooperative, the group can help prevent the diversion of marijuana for non-
medical use by having potential members complete a written membership application. The
following application guidelines should be followed to help ensure that marijuana grown for
medical use is not diverted to illicit markets:
a) Verify the individual's status as a qualified patient or primary caregiver. Unless he or she has
a valid state medical marijuana identification card, this should involve personal contact with the
recommending physician (or his or her agent), verification of the physician's identity, as well as
his or her state licensing status. Verification of primary caregiver status should include contact
with the qualified patient, as well as validation of the patient's recommendation. Copies should
be made of the physician's recommendation or identification card, ifany;
b) I-lave the individual agree not to distribute marijuana to non-members;
c) I-lave the individual agree not to use the marijuana for other than medical purposes;
d) Maintain membership records on-site or have them reasonably available;
e) Track when members' medical marijuana recommendation and/or identillcation cards expire;
and
I) Enforce conditions of membership by excluding members whose identification card or
physician recommendation are invalid or have expired, or who are caught diverting marijuana for
non-medical use.
4. Collectives Should Acquire, Possess, and Distribute Only Lawfully Cultivated
Marijuana:
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Collectives and cooperatives should acquire marijuana only from their constituent members,
hecause only marijuana grown by a qualitied patient or his or her primary caregiver may
lawfully be transported by, or distributed to, other members of a collective or cooperative. (99
11362.765, 11362.775.) The collective or cooperative may then allocate it to other members of
the group. Nothing allows marijuana to be purchased from outside the collective or cooperative
for distribution to its members. Instead, the cycle should be a closed circuit of marijuana
cultivation and consumption with no purchases or sales to or from non-members. To help
prevent diversion of medical marijuana to nonmedical markets, collectives and cooperatives
should document each member's contribution of labor, resources, or money to the enterprise.
They also should track and record the source of their marijuana.
5. Distribution and Sales to Non-Members are Prohibited: State law allows primary
caregivers to he reimbursed for certain services (including marijuana cultivation), but nothing
allows individuals or groups to sell or distribute marijuana to non-members. Accordingly, a
collective or cooperative may not distribute medical marijuana to any person who is not a
member in good standing of the organization. A dispensing collective or cooperative may credit
its members for marijuana they provide to the collective, which it may then allocate to other
members. (S 11362.765(c).) Members also may reimburse the collective or cooperative for
marijuana that has been allocated to them. Any monetary reimbursement that members provide
to the collective or cooperative should only be an amount necessary to cover overhead costs and
operating expenses.
6. Permissible Reimbursements and Allocations: Marijuana grown at a collective or
cooperative for medical purposes may be:
a) Provided free to qualified patients and primary caregivers who are members orthe collective
or cooperative;
b) Provided in exchange for services rendered to the entity;
c) Allocated based on fees that are reasonably calculated to cover overhead costs and operating
expenses; or
d) Any combination of the above.
7. Possession and Cultivation Guidelines: If a person is acting as primary caregiver to more
than one patient under section 1 I 362.7(d)(2), he or she may aggregate the possession and
cultivation limits l'or each patient. For example, applying the MMP's basic possession
guidelines, if a caregiver is responsible for three patients, he or she may possess up to 24 oz. of
marijuana (8 oz. per patient) and may grow 18 mature or 36 immature plants. Similarly,
collectives and cooperatives may cultivate and transport marijuana in aggregate amounts tied to
its membership numbers. Any patient or primary caregiver exceeding individual possession
guidelines should have supporting records readily available when:
a) Operating a location for cultivation;
b) Transporting the group's medical marijuana; and
c) Operating a location for distribution to members of the collective or cooperative.
8. Security: Collectives and cooperatives should provide adequate security to ensure that
patients are safe and that the surrounding homes or businesses are not negatively impacted by
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nuisance activity such as loitering or crime. Further, to maintain security, prevent fraud, and
deter robberies, collectives and cooperatives should keep accurate records and follow accepted
cash handling practices, incl~ding regular bank runs and cash drops, and maintain a general
ledger of cash transactions.
C. Enforcement Guidelines: Depending upon the facts and circumstances, deviations from the
guidelines outlined above, or other indicia that marijuana is not for medical use, may give rise to
probable cause for arrest and seizure. The following are additional guidelines to help identify
medical marijuana collectives and cooperatives that are operating outside of state law.
I. Storefront Dispensaries: Although medical marijuana "dispensaries" have been operating in
California for years, dispensaries, as such, are not recognized under the law. As noted above, the
only recognized group entities are cooperatives and collectives. (9 11362.775.) It is the opinion
of this Office that a properly organized and operated collective or cooperative that dispenses
medical marijuana through a storefront may be lawful under California law, but that dispensaries
that do not substantially comply with the guidelines set forth in sections IY(A) and (B), above,
are likely operating outside the protections of Proposition 215 and the MMP, and that the
individuals operating such entities may be subject to arrest and criminal prosecution under
California law. For example, dispensaries that merely require patients to complete a form
summarily designating the business owner as their primary caregiver - and then offering
marijuana in exchange for cash "donations" - are likely u'nlawful. (Peron, supra, 59
Cal.AppAth at p. 1400 [cannabis club owner was not the primary caregiver to thousands or'
patients where he did not consistently assume responsibility for their housing, health, or safety].)
2. Indicia of Unlawful Operation: When investigating collectives or cooperatives, law
enforcement officers should be alert for signs of mass production or illegal sales, including (a)
excessive amounts of marijuana, (b) excessive amounts of cash, (c) failure to follow local and
state laws applicable to similar businesses, such as maintenance of any required licenses and
payment of any required taxes, including sales taxes, (d) weapons, (e) illicit drugs, (I) purchases
from, or sales or distribution to, non-members, or (g) distribution outside of California.
FOOTNOTES:
I Unless otherwise noted, all statutory references are to the Health & Safety Code.
2 On May 22, 2008, California's Second District Court of Appeal severed Health & Safety Code S 11362.77
from the MMP on the ground that the statute's possession guidelines were an unconstitutional amendment of
Proposition 215, which does not quantify the marijuana a patient may possess. (See People v. Kel(v (2008) 163
Cal.AppAth 124,77 Ca1.Rptr.3d 390.) The Third District Court of Appeal recently reached a similar conclusion in
People v. Ph()mphak((~1 (July 31,2008) --- Cal.Rptr.3d ---, 2008 WI.., 2931369. The California Supreme Court has
granted review in Kelly and the Attorney General intends to seck review in Phomphak(~v.
Text Sources: htto://ag.ca.gov/newsalerts/release.oho?id=1601#attachments and
htto:1I ag.ca .gov / cms attach ments/ oress/ odfs/ n 1601 med icalma ri iua naguidel i nes. odf
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