I've written about a few of these misconceptions on this blog in the past. These rumors are just so pervasive that I wanted to take another opportunity to set the legal record straight.
If you care enough about the law and the facts to educate yourself on this complicated subject, please read on. If you prefer to remain willfully ignorant by disregarding information that offends your agenda, then crawl back into your hole now. It's nice and warm in there.
Every day, I work with dispensary operators, growers, patients, investors and, unfortunately, some people who have been arrested and accused of violating California's byzantine marijuana laws. I hear the same questions constantly. A lot of my clients have gotten themselves into serious trouble by failing to adequately understand the rules, or by following terrible legal advice that they've heard through the rumor mill. Stop listening to your idiot friends. That's the first bit of free advice.
This is a collection of the most common myths and misconceptions that I hear daily regarding medical marijuana in California.
Myth #1: Marijuana is Still Illegal Federally, So Cities May Not Allow Dispensaries to Operate
The first half of that sentence is correct, but the conclusion is not. Marijuana is illegal federally. And federal law trumps state law. If state or local laws directly conflict with federal laws in some legal dispute, the federal law will (usually) prevail. If the DEA sued the state of Colorado to block implementation of its recreational marijuana laws, for example, the DEA would (probably) win.
But that's not what anybody is talking about here. The feds have not taken any legal action to block state implementation of lenient weed laws. In fact, Obama has taken the opposite approach. He has directed the Attorney General not to aggressively pursue federal legal actions against individuals who comply with the marijuana laws of their respective states. The Justice Department has, in turn, ordered all US Attorneys to make efficient use of their limited resources and not to prioritize these types of cases.
The Rohrabacher-Farr Amendment to the Omnibus Spending Bill also prohibits the federal government from expending any resources to interfere with state-sanctioned medical marijuana programs.
While federal laws trump local ordinances, the US Constitution does not require states and municipalities to actually enforce federal laws. If the DEA wants to shut down Santa Ana's licensed medical marijuana dispensaries, let them spend their own resources to try. The city of Santa Ana has no obligation to do so.
Myth #2: Storefront Dispensaries are Actually Illegal in CA
False. This was a gray area a few years ago, but the law is settled now. Storefront dispensaries are allowed.
The Medical Marijuana Program Act, AKA "SB 420", AKA HS 11362.7 et seq. expressly allows qualified patients to collectively cultivate marijuana and to buy / sell / trade it among patient members of a cooperative, collective, or dispensary.
Section 11362.768 of the California Health & Safety Code further dictates how and where dispensaries may operate (not within 600 feet of a school, etc.). It's clear from a plain reading of the text and from the case law that the authors intended to allow brick-and-mortar storefronts to distribute medical marijuana.
Cities may impose more restrictive zoning / land use regulations to govern locations of dispensaries and hours of operation. They may even impose blanket bans on commercial medical marijuana activity. To claim that all storefront dispensaries are illegal in California is just plain false, though.
Myth #3: Your Doctor Has the Authority to Issue a "Cultivation Permit" That Will Legally Allow You to Grow Up to 99 Plants
Not quite. Your doctor may recommend the therapeutic use of marijuana to treat some medical condition. If you have a medical marijuana recommendation from a doctor, then you may cultivate and possess as much cannabis as your doctor says that you reasonably need to treat your condition.
That amount may not be "excessive", but there is no clearly defined criteria to calculate how many plants are excessive for a particular person. A patient who cultivates outdoors might harvest one crop per year. If that patient cooks the cannabis into edibles, he or she might consume much more than the average smoker. If the patient also has a high tolerance, then a relatively large number of plants might not be considered "excessive".
The law imposes some arbitrary limits on the numbers of plants that a patient may possess (6 mature / 12 immature), but those strictly-defined limits have been overturned by the courts.
You do not need special permission from your doctor to cultivate for your personal use if you hold a valid medical marijuana recommendation. Your recommendation is already a defense to a variety of marijuana-related crimes, including cultivation for personal use.
Your doctor may not grant you a "permit" to cultivate for sale or to distribute marijuana in any way. He or she may, however, form some professional opinion regarding how much cannabis you "need" to treat your condition. Some doctors charge an extra fee to "form the opinion" that your medical condition requires you to consume (and cultivate) a huge amount of weed. For the right price, your doctor might be "convinced" that you "need" 99 plants for your personal use. Good luck convincing a judge.
Myth #4: Dispensaries are "Just in it for the money"
Isn't that true for any business? Do you think your roofer loves hot tar? Or do you think "he's only in the roofing business for the money"?
If you're looking for a legal way to get rich quick, I would not recommend opening a medical marijuana dispensary. That's because dispensaries are legally prohibited from operating for profit. Operators may draw a salary and they may pay their employees, but those salaries must actually correlate to the fair market value of the labor performed.
The dispensary must be organized as a collective, a consumer cooperative, an unincorporated nonprofit association, or a nonprofit mutual benefit corporation. However the club organizes itself, it must be operated for the benefit of its patient members. If the club has more money at the end of the day than it started with, it is doing something wrong (and illegal).
I'll save a few more of my favorite myths and misconceptions for another day. Check back often for more valuable and up-to-date legal information about medical marijuana in California.
If you or a loved one has questions about medical marijuana in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John. Thanks for reading.
Orange County Marijuana Attorney
