Key Medical Marijuana Decisions – Lungren v. Peron

Also see: Key Medical Marijuana Decisions by California Courts

Lungren v. Peron

Citation 59 Cal. App. 4th 1383, 70 Cal. Rptr. 2d 20 (1997)
PDF of Full Opinion https://www.canorml.org/legal/lungren_v_peron.pdf
Fact Summary Following the passage of the Compassionate Use Act (“CUA”), the defendants moved to modify a preliminary injunction enjoining the provision of medical marijuana to patients through the San Francisco Cannabis Buyers Club. The trial court modified the injunction on the grounds that the defendants provided medical marijuana on a non-profit basis and qualified as “primary caregivers” under the CUA.
Summary Rule of Law The CUA protections do not extend to the provision of medical marijuana on a non-profit basis since the CUA’s provisions do not include the criminal provisions relating to the sale and the giving away of marijuana. Because a patient may patronize the Cannabis Buyers Club only one time, the defendants’ designation as “primary caregivers” did not meet the consistency required under the CUA.
Facts & Procedure The People ex rel. Daniel E. Lungren, as Attorney General of the State of California, filed a complaint under the controlled substances nuisance provision (Cal. Health & Safety Code § 11570) to enjoin the defendants from providing medical marijuana to patients through the San Francisco Cannabis Buyers Club. 59 Cal. App. 4th at 1386. “The trial court initially granted a temporary restraining order . . . .” Id. at 1387. However, following the passage of the Compassionate Use Act (“CUA”), the defendants moved to modify the preliminary injunction arguing “that they were ‘primary caregiver[s]’ ‘as defined by [the CUA] of the thousands of persons to whom they sold or furnished marijuana, and as such were authorized under state law to continue to distribute marijuana to those persons for whom the medical use of marijuana is permitted by [the CUA].” Id.

The trial court granted the defendants’ motion stating:

“‘[The defendants] may possess and cultivate medicinal marijuana . . . for the personal medicinal use of persons who have designated the [defendants] as their primary caregiver pursuant to [the CUA], whose physician has recommended or approved the use of medicinal marijuana either orally or in writing to the [defendants] . . . . [The defendants] shall maintain records showing monies expended and received as reimbursement of expenditures including overhead for their activities relating to the provision of medicinal marijuana.’” Id. at 1387−88.

Prior to granting the defendants’ motion, the trial court said:

“‘It’s my intent to say that to the extent that [the defendants reopen the Cannabis Buyers Club], you better keep adequate records and you had better be sure you are not making any kind of a profit.’” Id. at 1391 (emphasis in original).

Issues(s) 1. Does the CUA allow furnishing of medical marijuana to patients on a non-profit basis?

2. Does the defendants’ buyers’ club qualify as a primary caregiver under the CUA upon the designation as such by qualified medical marijuana patients?

Holding(s) 1. The CUA does not allow furnishing of medical marijuana to patients on a non-profit basis. 59 Cal. App. 4th at 1389. The CUA “specifically identifies only two penal provisions (out of five) from article 2 [of chapter 6] of division 10 of the Code.” Id. at 1392 (citations omitted). Sections 11359 and 11360 relating to the sale and the giving away of marijuana are excluded from the CUA’s provisions. See id. “The laws prohibiting the distribution of controlled substances, including marijuana, do not distinguish between sales or gifts; the lack of a profit is irrelevant to prosecution under section 11360.” Id. at 1392.

Although there is arguably ambiguity resulting from a construction of the CUA which allows “patients and primary caregivers [to] lawfully cultivate and possess marijuana” but exposes to “criminal prosecution any third party who provides the marijuana or seeds of the marijuana plant to those [patients and primary caregivers]”, that ambiguity is resolved in favor of continued prohibition of non-profit sales through consultation of the ballet pamphlet arguments. Id. at 1393−94.

Moreover, “[o]ne of the declared purposes of the statute is: ‘To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.’” Id. at 1394 (citing the CUA). “If the statute authorized the sale or ‘affordable distribution’ of marijuana to patients other than by personal cultivation, there would be no need to ‘encourage’ the governments to implement such a plan.” Id.

2. Defendants’ buyers’ club does not qualify as a primary caregiver under the CUA upon the designation as such by qualified medical marijuana patients. 59 Cal. App. 4th at 1390.

The CUA “defines ‘primary caregiver’ as ‘the individual designated by . . . the patient . . . who has consistently assumed responsibility for the housing, health, or safety of that person.’” Id. at 1395 (citing the CUA) (emphasis in original). “A person purchasing marijuana for medicinal purposes cannot simply designate seriatim, and on an ad hoc basis, drug dealers on street corners and sales centers such as the Cannabis Buyers’ Club as the patient’s ‘primary caregiver.’” Id. at 1396. “The purchasing patient may never patronize [the defendants’] establishment again; the designation of [the defendants’] as primary caregivers is admittedly transitory and not exclusive.” Id. at 1397. “Thus, the ‘consisten[cy]’ of [the defendants’] claimed health or safety primary caregiving of each customer is in reality a chimerical myth.” Id.

Dicta 1. The People ex rel. “contend . . . that only an ‘individual’ qualifies under [the CUA] as a primary caregiver.” 59 Cal. App. 4th at 1398. “[T]his contention is premature. The modification order from which the People appeal does not authorize any corporation, partnership, unincorporated association, or other “institution” to function as a primary caregiver.” Id.

2. The People ex rel. contend “that a primary caregiver cannot serve more than one patient . . . .” 59 Cal. App. 4th at 1398. This contention “has no support in the statutory language.” Id. “If we follow the . . . argument to its logical conclusion, the director of a convalescent hospital or nursing home could not serve as primary caregiver for more than one resident patient; single persons caring for more than one aged and ailing parent or other relatives living with them could not qualify as the primary caregivers for their parents or other relatives in their care.” Id. at 1399. “Such a construction conflicts with a declared purpose of the statute . . . .” Id.

3. “Although the sale and distribution of marijuana remain as criminal offenses under section 11360, bona fide primary caregivers for [CUA] patients should not be precluded from receiving bona fide reimbursement for their actual expense of cultivating and furnishing marijuana for the patient’s approved medical treatment.” 59 Cal. App. 4th at 1399.

Discussion Peron was the second appellate-level decision reviewing the practical impact of the CUA, coming right on the heels of People v. Trippet, 56 Cal. App. 4th 1532, 66 Cal. Rptr. 2d 559 (1997) (holding that the CUA only provides a “partial defense” to prosecution for possession and transportation of marijuana). In other words, in a little over a year following the enactment of the CUA, the courts had greatly narrowed its application.

Peron’s holding that the CUA does not allow furnishing of medical marijuana to patients on a non-profit basis has been repudiated by the Medical Marijuana Program Act (“MMPA”) and the subsequent court decisions ruling on the MMPA in light of the CUA. To demonstrate, “[t]he MMPA abrogated Peron and other pre-MMPA cases to the extent the cases construed the CUA more restrictively than the subsequently-enacted MMPA allows.” People v. London, 228 Cal. App. 4th 544, 561, 175 Cal. Rptr. 3d 392, 407 (2014) (citations omitted). Peron’s holding and its rationale are presented here primarily to demonstrate that the current operation of legal medical marijuana distribution in California (non-profit dispensaries, non-profit collective and cooperative cultivation, etc.) is not legally grounded in the CUA in of itself but in the MMPA as a legislative compliment to the CUA.

The repudiation of Peron’s non-profit sales holding aside, the same cannot be said of its “primary caregivers” holding and analysis. In this regard Peron is still applicable even in the post-MMPA environment. To illustrate, “[i]ndividuals operating a marijuana-buying cooperative do not, by providing medical patients with medicinal marijuana, consistently assume responsibility for the health of those patients.” People v. Hochanadel, 176 Cal. App. 4th 997, 1016, 98 Cal. Rptr. 3d 347, 361−62 (2009) (citing People ex rel. Lungren v. Peron, 59 Cal.App.4th 1383, 1390 (1997).

Quotable Excerpt(s) Although the sale and distribution of marijuana remain as criminal offenses under section 11360, bona fide primary caregivers for section 11362.5 patients should not be precluded from receiving bona fide reimbursement for their actual expense of cultivating and furnishing marijuana for the patient’s approved medical treatment.

People ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383, 1399, 70 Cal. Rptr. 2d 20, 31 (1997).

For example, if a qualified patient is a semi-invalid and asks the primary caregiver to purchase fertilizer or special equipment to cultivate marijuana, merely reimbursing the caregiver for the purchase price thereof would be an adjunct to possession or cultivation under section 11362.5 and subject to the same affirmative defense.

People ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383, 1399, 70 Cal. Rptr. 2d 20, 31 (1997).

If the patient is incapacitated and thereby dependent upon the caregiver to cultivate or acquire the medicinal marijuana prescribed or approved for that patient’s use, reimbursement for the caregiver’s actual expenses in consistently doing so could be subject to the affirmative defense granted by section 11362.5.

People ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383, 1399, 70 Cal. Rptr. 2d 20, 31 (1997).

A primary caregiver who consistently grows and supplies physician-approved or -prescribed medicinal marijuana for a section 11362.5 patient is serving a health need of the patient, and may seek reimbursement for such services.

People ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383, 1400, 70 Cal. Rptr. 2d 20, 31 (1997).

Also see: Key Medical Marijuana Decisions by California Courts

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