New AG Guidlines Don't Substantially Conflict With Previous Guidelines
August 27, 2008 - Attorney General Jerry Brown's office issued long-awaited guidelines on medical marijuana enforcement this week: Read the guidelines.
For the most part, the AG's guidelines are consistent with the opinion of California NORML's attorneys and with the advice to providers previously posted at our website. However, there are certain respects in which we believe they restrict medical marijuana excessively beyond the requirements of California law.
The guidelines recognize two alternative ways for medical marijuana to be distributed: through legally defined non-profit "cooperatives" or "collectives." Note that they do not envision storefront dispensaries operating as "primary caregivers," nor as for-profit businesses. The guidelines also specify that coops and collectives pay sales tax on MMJ transactions; distribute only to members, and that they acquire, possess and distribute only lawfully cultivated marijuana. Dispensaries and caregivers are strongly advised to consult with a knowledgeable attorney on how to organize consistently with these requirements.
Beyond this, the AG's guidelines specify certain requirements that California NORML regards as questionable and beyond the legal requirements of Prop 215 and SB 420:
(1) Restriction On Purchase - The guidelines disallow purchases from outside vendors: "Cooperatives [or collectives ] should not purchase marijuana from, or sell to, non-members; instead, they should only provide a means for facilitating or coordinating transactions between members." There is no basis for this restriction in Prop 215 or SB 420. No provision in state or federal law prohibits purchase of marijuana, medical or otherwise ( the law only restricts possession, distribution, transportation and manufacture). In practice, this restriction can be easily avoided by simply enrolling all outside vendors as members of the collective.
(2) Recordkeeping - The guidelines say coops and collectives should document their activities and specifically, "track and record the source of their marijuana." Again, this is not required in Prop 215 or SB 420. While providers are strongly advised to keep good business records for tax purposes and to document the legitimacy of their activities, the recording of vendors poses obvious problems, due to the threat of the seizure of records by DEA and other police. Until the threat of federal prosecution of growers is eliminated, providers are obliged to take steps to safeguard the privacy of suppliers.
(3) Restriction on smoking - The AG states. "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 the medical use occurs within a residence), (c) on a school bus, or (d) in a moving motor vehicle or boat. (§ 11362.79.)" In particular, (b) disallows on-site smoking in dispensaries and other non-residential facilities within 1000 feet of schools. In fact, the relevant statute (§ 11362.79) does not explicitly prohibit smoking in these locations, but rather states that it does "not authorize" it. The purpose of this section was to ensure that the ID card program did not override other anti-smoking regulations and thereby allow smoking in all situations. It would appear to remain within the power of local communities to permit medical marijuana smoking wherever they choose.
(4) SB 420 Limits: The AG guidelines refer to the statewide SB 420 limits of 6 plants and 8 ounces per patient. In a footnote, they remark that the legality of these limits was rejected in the recent Kelly and Phomphakdy appellate decisions, which are now under review. While the legality of the SB420 limits remains debatable, providers are well advised to abide by them in order to reduce their risk of arrest.
(5) Geographical restriction on caregivers: The AG repeats the restriction in SB 420 that "a person may serve as primary caregiver to 'more than one' patient, provided that the patients and caregiver all reside in the same city or county." This would make it illegal for a caregiver to take care of two parents who happen to live over the city line. Cal NORML regards this provision to be an unconstitutional restriction on Prop. 215, like the SB420 quantity limits struck down in the Kelly decision. We are aware of at least one lower court case in which the "one city" rule has been rejected.
Legal Force of the AG's Guidelines
The guidelines by themselves do not constitute legally binding law, but are merely the AG's legal opinion. However, they do give guidance as to how the AG wants to enforce state law. This is important, because the AG's office also announced a raid by the state Bureau of Narcotics Enforcement on a Northridge dispensary for supposedly flouting the intent of the Compassionate Use Act. This was a significant development, because the state BNE had previously been under orders NOT to conduct medical marijuana raids during the eight years of Brown's predecessor, AG Lockyer. The fact that the BNE is now getting involved in MMJ enforcement may be a helpful development, insofar as it could signal that the AG's office would like to replace the DEA as the lead agency for medical marijuana enforcement.
Obviously, it's preferable for medical marijuana to be regulated by the state than the feds. The AG's guidelines include some very helpful provisions, for example requiring the return of seized medical marijuana and telling state law enforcement not to turn legal providers over to the feds. However, the legal framework of the guidelines and the existing SB 420 legislation remain inadequate in many respects - for example, the lack of allowance for commercial producers, the limitation to non-profit coops, and lack of quality control and pure food & drug standards for agricultural producers. These problems can only be solved by further changes in state and federal law.
-D. Gieringer, director, California NORML/ co-author, Prop. 215