Marijuana is now legal in California for medical and recreational use, but there are still plenty of ways to get into trouble if you don't understand the rules. Police continue to make arrests, and prosecutors continue to file criminal charges when they catch people growing or possessing excessive amounts of cannabis. The amount that may be considered "excessive" depends on the circumstances, though.
Since voters approved Prop. 64, individuals may grow up to 6 marijuana plants on a parcel of land. The 6-plant rule applies to each piece of land, not to each adult who lives on the land. For example, if 4 adults live together in one house, they may cultivate a total of 6 plants in the yard, not 24 plants. They may give away small amounts to other adults, but they may not sell their crop or trade it for anything of value.
Local cities have specific rules about personal cultivation that may be more restrictive than the statewide rules. Some cities, for instance, prohibit outdoor cultivation, or require that growers employ certain security measures.
If you are a qualified medical marijuana patient (you have a valid doctor's recommendation to use cannabis), then you may grow and possess as much as your doctor says you need to treat your condition. Be very wary, though, of quack doctors who sell "99-plant recommendations" for an additional fee. If you get caught growing 99 marijuana plants, you will be arrested. If you plan to assert a medical defense, the doctor who wrote the recommendation must convincingly explain to the judge that he actually performed a good faith medical examination, and that he sincerely believes that you need 99 marijuana plants as medicine. More likely, that doctor will simply testify that he has no recollection of meeting you (if he appears in court at all).
To cultivate marijuana commercially (for sale, or more than 6 plants on one piece of property), you must hold a license from the Bureau of Cannabis Control. The BCC issues various types of cultivation licenses, depending on the size of the growing space and whether natural or artificial lights are used.
If you're interested in applying for a commercial cannabis license, or if you've been arrested for cultivating marijuana, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Marijuana Lawyer
Showing posts with label cultivation. Show all posts
Showing posts with label cultivation. Show all posts
Wednesday, July 11, 2018
Tuesday, October 17, 2017
How to Apply for a California Cannabis License
California began issuing licenses to the cannabis industry on Monday, January 1, 2018. Specific state-issued licenses now govern virtually every aspect of the cannabis market, from seed to consumption, including cultivation, manufacture of concentrates, transportation, distribution, operation of testing labs, and retail sales.
If you're interested in getting involved with California's legal cannabis industry, the first step is to decide on a specific product or service you plan to offer. As mentioned above, each stage of production and distribution will require its own specific license. There are restrictions on how many different types of licenses any person or entity can control, and how many different licensees may operate on a single lot or parcel of land. If you want to grow cannabis indoors on a lot smaller than 500 square feet, there is a specific license for that. If you want to grow outdoors on a lot larger than 10,000 square feet but smaller than an acre, there is a specific license for that, too.
Once you settle on a specific product or service that you plan to offer, you'll need to form a business plan, including your ownership structure and financing. Unlike our old medical marijuana rules, California now allows marijuana businesses to operate on a for-profit basis, rather than limiting them to non-profit mutual benefit corporations. For the first time, you may choose to operate a canna-business as a sole proprietorship, an LLC, a partnership or a corporation. The ownership / financing structure that you choose may have significant implications for your license application. For example, you may be required to disclose personal details of your financial interest holders, and individuals with serious criminal convictions may be disqualified from holding more than a 20% interest in some marijuana businesses.
The next major hurdle in the application process will be finding a local jurisdiction (a city or an unincorporated part of a county) that actually authorizes your commercial cannabis activity. The state will not process any applications without a copy of a valid local license, permit or other authorization from the jurisdiction where the business plans to operate. As of today, very few municipalities in Southern California permit new cannabis-related businesses to open their doors. Some towns have lax enforcement, some allow a handful of grandfathered locations, and some lack the resources to shut down the illegal dispensaries and grow houses that operate in violation of local ordinances. If you want to apply for a state license, though, you'll need explicit local approval from your jurisdiction. Before than can happen, more cities in Southern California will have to update their zoning laws to permit these types of businesses.
Once you have approval from your local city, then we can complete the application process according to the regulations that will govern your specific niche of the industry. This may include obtaining permits from the California State Water Resources Control Board, applying for a seller's permit, registering as an employer with the Employment Development Department, posting surety bonds, negotiating a labor agreement, etc.
As I see it, the biggest impediment to starting a new canna-business in Southern California is the lack of local jurisdictions that expressly authorize them to operate. You can't start running your business until you have a valid state license, and you can't get a state license until you have approval from your city, and no almost no city in Southern California will approve you (as of today). There have been a lot of rumors about which jurisdiction might be the next to revamp their land use regulations, but very little action from city councils and planning commissions.
If you're serious about forming a marijuana-related business in Southern California, I would encourage you to speak with your local representatives on the city council and your local planning commission. Attend public hearings and comment sessions. Write letters, circulate petitions, support candidates who will promote commonsense reforms and oppose the dinosaurs who still believe in "reefer madness" ("But won't somebody think of the children?", "Not in my backyard!").
If you have questions about getting involved with California's legal cannabis industry, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Tuesday, November 22, 2016
How Will the Trump Administration Treat Legal Marijuana?
By now, we all know that marijuana is a Schedule I controlled substance under federal law. We also understand that federal law trumps state laws where the two conflict. The feds cannot compel the states to enforce federal drug laws, but they can use the FBI and the DEA to bust local growers and distributors, even if those growers / distributors are in full compliance with the laws of their respective states.
At last count, 8 states plus the District of Columbia have fully legalized recreational use of marijuana by adults, and something like 46 states allow some form of medical use. Voters in California overwhelmingly passed Prop 64 on November 8. That initiative will allow adults to cultivate up to 6 plants on private property and possess up to an ounce of flower in public. It will also create a comprehensive system of licensing and taxation to govern commercial sales. National polls consistently show that a majority of Americans support some form of legalization.
The Obama administration mostly took a hands-off approach to enforcement in states with permissive cannabis laws. President Obama personally opposed legalization, but he respected the will of voters in states that chose to permit adult use of marijuana for recreational or medical purposes. A new administration, though, could mean big changes for federal law enforcement priorities.
On the campaign trail, Trump showed little concern with marijuana. He indicated support for states' rights, suggesting that he would allow individual states to enact their own policies without undue federal interference. Drug policy reformers were cautiously optimistic.
Since the election, though, President-elect Trump has sent some discouraging signals. Last week, he named Senator Jeff Sessions as his pick for Attorney General. As the head of the Justice Department, the AG is responsible for setting the policies and priorities for all federal prosecutors. For the legalization community, the appointment of Sen. Sessions represents a sky-is-falling, worst case scenario. The uber-conservative legislator from Alabama has been a lifelong anti-cannabis crusader. He famously said that "good people don't smoke marijuana", and he once joked that he supported the KKK until he learned that they smoke pot.
Under AG Sessions, the Justice Department could begin an aggressive campaign to arrest and prosecute state-sanctioned growers and distributors. It could sue to shut down local programs that regulate and tax marijuana businesses and use the full force of federal law to drive cannabis back underground.
Or the DoJ might follow the lead of President Trump and popular opinion polls. They could work to reform banking regulations so that more legitimate marijuana businesses can finally get a checking account. They might allow law-abiding marijuana users to purchase and possess firearms. They could reform federal tax laws to allow cannabusinesses to deduct their operating expenses so that they're not saddled with prohibitive tax bills. They might even reschedule marijuana to permit more scientific research.
Right now, the future of marijuana in the United States is completely up in the air. There are so many unanswered questions that nobody can accurately predict what the landscape will look like after January 20, 2017. If you're concerned about the future of legal cannabis under AG Sessions, call your senators and tell them to reject his appointment.
If you or a loved one has questions about Prop 64 and the future of legal marijuana in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Marijuana Lawyer
If you or a loved one has questions about Prop 64 and the future of legal marijuana in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Marijuana Lawyer
Thursday, June 23, 2016
Some Pervasive Myths & Misconceptions Over Medical Marijuana in CA
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
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
Thursday, March 31, 2016
Announcing New Collaboration with Thekindland.com
I'm proud to announce my partnership with thekindland.com. I've contributed a few columns to their online magazine over the past year, but we recently finalized an agreement for a regular, long-term collaboration. My "Ask a Weed Lawyer" features will appear each Sunday until the complaints become intolerable or until the robot apocalypse, whichever comes first.
As the title of my column suggests, I will be answering common marijuana-related legal questions. If you have specific questions that you'd like answered, please feel free to leave your suggestions in the comments, below.
If you don't already read thekindland.com, you should start now. It's a free online magazine dedicated to cannabis culture and lifestyle. Think High Times meets Vanity Fair. And it's not all weed. Daily articles include a roundup of bizarre news from the internet, commentary on arts / current events, and a feature they call "Chill / No Chill", where readers can vote on the divisive topic of the day (e.g. compression pants, hemp sneakers, pizza delivery robots, etc.) Enter your email address on their homepage to get all the headlines delivered to your inbox every morning.
I will continue updating this blog while I work with the thekindland.com. Most of my nationally-relevant, marijuana-related posts will go up over there, and the California-specific posts will stay here. I'll also do my best to keep this blog freshly stocked with non-marijuana-related news and analysis.
Thanks for reading.
As the title of my column suggests, I will be answering common marijuana-related legal questions. If you have specific questions that you'd like answered, please feel free to leave your suggestions in the comments, below.
If you don't already read thekindland.com, you should start now. It's a free online magazine dedicated to cannabis culture and lifestyle. Think High Times meets Vanity Fair. And it's not all weed. Daily articles include a roundup of bizarre news from the internet, commentary on arts / current events, and a feature they call "Chill / No Chill", where readers can vote on the divisive topic of the day (e.g. compression pants, hemp sneakers, pizza delivery robots, etc.) Enter your email address on their homepage to get all the headlines delivered to your inbox every morning.
I will continue updating this blog while I work with the thekindland.com. Most of my nationally-relevant, marijuana-related posts will go up over there, and the California-specific posts will stay here. I'll also do my best to keep this blog freshly stocked with non-marijuana-related news and analysis.
Thanks for reading.
Tuesday, February 9, 2016
The First Amendment as a Defense to Drug Charges?
If you haven't already, please check out the columns I've been contributing to thekindland.com. The entire archive is available under the "Ask a Weed Lawyer" section.
My latest post for The Kind Land is scheduled for publication on Valentine's Day (2/14/16). In it, I discuss "freedom of religion" as a possible defense to drug charges. This is an area that has generated a lot of popular mythology and bad information. Many people believe that the First Amendment's protections for the "free exercise of religion" grant them total immunity against prosecution for any activity that is central to their religious beliefs. Unfortunately, this is not true. The Supreme Court has consistently ruled that the US Constitution does not entitle individuals to disregard generally applicable criminal laws. Sorry, Rastafarians.
The Religious Freedom Restoration Act
But there are a couple federal laws that, taken together, make this analysis more interesting. First is the "Religious Freedom Restoration Act", which was signed into law in 1993. That law prohibits the US government from taking any action that "substantially burdens" the free exercise of religion, unless the government can prove 2 important things: 1) that the feds have some "compelling" interest to protect, and 2) that the government's action in question is the least intrusive means for protecting that interest.
Keep a couple things in mind, though. The RFRA is not a constitutional amendment, it is a federal law. That means that it does not apply against the states; it only applies to actions taken by the federal government. States and local governments are still free to "substantially burden" the exercise of your religion. Also, the RFRA does not grant blanket immunity to do anything that you claim is part of your religion. Instead, it establishes a balancing test. If you claim that some federal law infringes on your religious beliefs, then the courts must weigh that infringement against the government's legitimate interest in protecting public health and safety. If the government's interest is found to be "compelling", and its actions are "the least intrusive means" for protecting that interest, then you still lose.
The Religious Land Use and Incarcerated Persons Act
Enacted in 2000, the federal RLUIPA takes the RFRA one step further. It prohibits cities and local governments from making any laws regarding zoning or land use that substantially burden the practice of religion. Up until now, most of the litigation around the RLUPIA has involved eminent domain cases -- whether or not a city may seize church land to build a new housing development or airport.
What does this have to do with marijuana? Glad you asked.
The Oklevueha Native American Church, a group that claims over 200 local branches, has recently announced plans to open several new locations in Costa Mesa, Huntington Beach, and Westminster. Members of the church use peyote, marijuana and other hallucinogens to "commune with nature" as part of their religious beliefs.
The church will operate out of buildings that formerly housed marijuana dispensaries. Church leaders have stated that they intend to distribute marijuana to their members, in violation of local zoning laws. It is not clear whether or not the church intends to distribute other controlled substances and whether or not it will restrict marijuana sales to members who hold valid medical recommendations.
Spokesmen for the cities of Huntington Beach and Costa Mesa have publicly stated that they intend to enforce their existing zoning laws. An attorney for the church has threatened to bring a federal lawsuit under the RLUIPA if the cities' land use regulations interfere with his clients' right to freely exercise their religion.
We're all excited to see how this plays out.
If you or a loved one has questions about drug charges in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Drug Lawyer
My latest post for The Kind Land is scheduled for publication on Valentine's Day (2/14/16). In it, I discuss "freedom of religion" as a possible defense to drug charges. This is an area that has generated a lot of popular mythology and bad information. Many people believe that the First Amendment's protections for the "free exercise of religion" grant them total immunity against prosecution for any activity that is central to their religious beliefs. Unfortunately, this is not true. The Supreme Court has consistently ruled that the US Constitution does not entitle individuals to disregard generally applicable criminal laws. Sorry, Rastafarians.
The Religious Freedom Restoration Act
But there are a couple federal laws that, taken together, make this analysis more interesting. First is the "Religious Freedom Restoration Act", which was signed into law in 1993. That law prohibits the US government from taking any action that "substantially burdens" the free exercise of religion, unless the government can prove 2 important things: 1) that the feds have some "compelling" interest to protect, and 2) that the government's action in question is the least intrusive means for protecting that interest.
Keep a couple things in mind, though. The RFRA is not a constitutional amendment, it is a federal law. That means that it does not apply against the states; it only applies to actions taken by the federal government. States and local governments are still free to "substantially burden" the exercise of your religion. Also, the RFRA does not grant blanket immunity to do anything that you claim is part of your religion. Instead, it establishes a balancing test. If you claim that some federal law infringes on your religious beliefs, then the courts must weigh that infringement against the government's legitimate interest in protecting public health and safety. If the government's interest is found to be "compelling", and its actions are "the least intrusive means" for protecting that interest, then you still lose.
The Religious Land Use and Incarcerated Persons Act
Enacted in 2000, the federal RLUIPA takes the RFRA one step further. It prohibits cities and local governments from making any laws regarding zoning or land use that substantially burden the practice of religion. Up until now, most of the litigation around the RLUPIA has involved eminent domain cases -- whether or not a city may seize church land to build a new housing development or airport.
What does this have to do with marijuana? Glad you asked.
The Oklevueha Native American Church, a group that claims over 200 local branches, has recently announced plans to open several new locations in Costa Mesa, Huntington Beach, and Westminster. Members of the church use peyote, marijuana and other hallucinogens to "commune with nature" as part of their religious beliefs.
The church will operate out of buildings that formerly housed marijuana dispensaries. Church leaders have stated that they intend to distribute marijuana to their members, in violation of local zoning laws. It is not clear whether or not the church intends to distribute other controlled substances and whether or not it will restrict marijuana sales to members who hold valid medical recommendations.
Spokesmen for the cities of Huntington Beach and Costa Mesa have publicly stated that they intend to enforce their existing zoning laws. An attorney for the church has threatened to bring a federal lawsuit under the RLUIPA if the cities' land use regulations interfere with his clients' right to freely exercise their religion.
We're all excited to see how this plays out.
If you or a loved one has questions about drug charges in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Drug Lawyer
Thursday, December 3, 2015
New Regulations for Medical Marijuana in California
I've previously written on this blog about the big changes that are coming for medical marijuana in California.
It's taken some time, but I've finally had a chance to study these new laws and really wrap my head around the details. Of course, these rules haven't taken effect yet, so the courts haven't had a chance to muddy the waters by completely reinterpreting everything that we thought we understood. There are still plenty of unanswered questions, but I'll try to break it all down as well as I can here.
As mentioned in my previous post, available by following the link above, Governor Brown has signed a package of bills that will completely reshape the way we regulate medical marijuana in California. Everything that you know about medical marijuana in California will be wrong after January 1, 2016. The three new laws, SB-643, AB-266 and AB-243, will collectively be called "The Medical Marijuana Regulation and Safety Act", or "MMRSA".
State-Issued Marijuana Licenses
The MMRSA creates at least 17 different types of state-issued licenses that will be required for various commercial activities related to medical marijuana. Those activities include cultivation, manufacturing (the process of concentrating cannabis to produce a more potent product), transportation, distribution, testing and retail sales.
The new law will establish 10 different types of licenses to specifically govern growing operations, depending on the size of the grow and the type of light used:
1) "Specialty" Outdoor: For outdoor growing operations using no artificial lights. Total cultivation area will be limited to 5,000 square feet, or 50 total plants on non-contiguous plots
1A) "Specialty" Indoor: Limited to 5,000 square feet with artificial lights
1B) "Specialty" Mixed Light: Mixed light (natural and artifical), limited to 5,000 square feet
2) "Small" Outdoor: For outdoor growing operations with no artificial lights, 5,001 - 10,000 square feet
2A) "Small" Indoor: Indoor growing operations, 5,001 - 10,000 square feet
2B) "Small" Mixed Light: Mixed light, 5,001 - 10,000 square feet
3) Outdoor: no artificial lights, 10,001 square feet, up to one acre
3A) Indoor: 10,001 - 22,000 square feet
3B) Mixed Light: 10,001 - 22,000 square feet
4) Nursery: To cultivate seeds, seedlings and immature plants only.
Only a limited number of Type 3, 3A and 3B licenses (for larger-scale growing operations) will be issued by the Department of Food & Agriculture.
The MMRSA also creates 2 different types of "manufacturing" licenses. A "Type 6" license will qualify the holder as a "manufacturer 1". A manufacturer 1 may produce concentrates without using volatile solvents (e.g. "bubble hash"). A "Type 7" license will qualify the holder as a "manufacturer 2". A manufacturer 2 may produce concentrated cannabis products using volatile solvents (e.g. butane hash oil), which is currently prohibited under California law.
All marijuana products must be delivered to a distributor for inspection. After inspecting the product, the distributor must deliver the cannabis to a licensed testing facility for certification before it may be delivered to a retailer. Testers must hold "Type 8" licenses.
Retail marijuana dispensaries with more than 3 locations will be required to hold "Type 10" licenses. Marijuana retailers with 3 or fewer dispensary locations may operate with a "Type 10A" license.
Distributors (wholesalers), who purchase marijuana from cultivators and resell the products to retailers, must hold both a "Type 11" distributor's license, and a "Type 12" transporter's license. People who are engaged only the business of marijuana transportation must hold a "Type 12" license and may also apply for a "Type 11" distribution license.
Confused yet? Here's where it gets interesting.
No license holder may possess more than 2 different types of licenses.
Small-scale cultivators (growers who are licensed to cultivate on 10,000 square feet or fewer) will also be permitted to hold manufacturing licenses. This means that mom-and-pop grow operations can produce their own concentrates.
Small-scale cultivators may also apply for Type 10A licenses to operate their own boutique retail sales at 3 or fewer locations. Remember, though, that license holders may only possess 2 different types of licenses. Essentially, growers who cultivate on 10,000 square feet or fewer may either produce their own concentrates or operate their own boutique retail sales, but not both.
Manufacturers may hold Type 10A licenses to operate 3 or fewer retail dispensaries. Get ready for high-end, branded hash to come to a retail location near you!
That's just the tip of iceberg. Stay tuned for updates. I will continue to post regularly with more details about the licensing process as those details become available.
If you're thinking about getting involved in California's medical marijuana industry, call us for a free consultation. (714) 505-2468. Ask for John. If you already cultivate medical marijuana or operate a dispensary, call us to discuss the steps you need to be taking to prepare for these big changes.
Thanks for reading.
Santa Ana Medical Marijuana Lawyer
It's taken some time, but I've finally had a chance to study these new laws and really wrap my head around the details. Of course, these rules haven't taken effect yet, so the courts haven't had a chance to muddy the waters by completely reinterpreting everything that we thought we understood. There are still plenty of unanswered questions, but I'll try to break it all down as well as I can here.
As mentioned in my previous post, available by following the link above, Governor Brown has signed a package of bills that will completely reshape the way we regulate medical marijuana in California. Everything that you know about medical marijuana in California will be wrong after January 1, 2016. The three new laws, SB-643, AB-266 and AB-243, will collectively be called "The Medical Marijuana Regulation and Safety Act", or "MMRSA".
State-Issued Marijuana Licenses
The MMRSA creates at least 17 different types of state-issued licenses that will be required for various commercial activities related to medical marijuana. Those activities include cultivation, manufacturing (the process of concentrating cannabis to produce a more potent product), transportation, distribution, testing and retail sales.
The new law will establish 10 different types of licenses to specifically govern growing operations, depending on the size of the grow and the type of light used:
1) "Specialty" Outdoor: For outdoor growing operations using no artificial lights. Total cultivation area will be limited to 5,000 square feet, or 50 total plants on non-contiguous plots
1A) "Specialty" Indoor: Limited to 5,000 square feet with artificial lights
1B) "Specialty" Mixed Light: Mixed light (natural and artifical), limited to 5,000 square feet
2) "Small" Outdoor: For outdoor growing operations with no artificial lights, 5,001 - 10,000 square feet
2A) "Small" Indoor: Indoor growing operations, 5,001 - 10,000 square feet
2B) "Small" Mixed Light: Mixed light, 5,001 - 10,000 square feet
3) Outdoor: no artificial lights, 10,001 square feet, up to one acre
3A) Indoor: 10,001 - 22,000 square feet
3B) Mixed Light: 10,001 - 22,000 square feet
4) Nursery: To cultivate seeds, seedlings and immature plants only.
Only a limited number of Type 3, 3A and 3B licenses (for larger-scale growing operations) will be issued by the Department of Food & Agriculture.
The MMRSA also creates 2 different types of "manufacturing" licenses. A "Type 6" license will qualify the holder as a "manufacturer 1". A manufacturer 1 may produce concentrates without using volatile solvents (e.g. "bubble hash"). A "Type 7" license will qualify the holder as a "manufacturer 2". A manufacturer 2 may produce concentrated cannabis products using volatile solvents (e.g. butane hash oil), which is currently prohibited under California law.
All marijuana products must be delivered to a distributor for inspection. After inspecting the product, the distributor must deliver the cannabis to a licensed testing facility for certification before it may be delivered to a retailer. Testers must hold "Type 8" licenses.
Retail marijuana dispensaries with more than 3 locations will be required to hold "Type 10" licenses. Marijuana retailers with 3 or fewer dispensary locations may operate with a "Type 10A" license.
Distributors (wholesalers), who purchase marijuana from cultivators and resell the products to retailers, must hold both a "Type 11" distributor's license, and a "Type 12" transporter's license. People who are engaged only the business of marijuana transportation must hold a "Type 12" license and may also apply for a "Type 11" distribution license.
Confused yet? Here's where it gets interesting.
No license holder may possess more than 2 different types of licenses.
Small-scale cultivators (growers who are licensed to cultivate on 10,000 square feet or fewer) will also be permitted to hold manufacturing licenses. This means that mom-and-pop grow operations can produce their own concentrates.
Small-scale cultivators may also apply for Type 10A licenses to operate their own boutique retail sales at 3 or fewer locations. Remember, though, that license holders may only possess 2 different types of licenses. Essentially, growers who cultivate on 10,000 square feet or fewer may either produce their own concentrates or operate their own boutique retail sales, but not both.
Manufacturers may hold Type 10A licenses to operate 3 or fewer retail dispensaries. Get ready for high-end, branded hash to come to a retail location near you!
That's just the tip of iceberg. Stay tuned for updates. I will continue to post regularly with more details about the licensing process as those details become available.
If you're thinking about getting involved in California's medical marijuana industry, call us for a free consultation. (714) 505-2468. Ask for John. If you already cultivate medical marijuana or operate a dispensary, call us to discuss the steps you need to be taking to prepare for these big changes.
Thanks for reading.
Santa Ana Medical Marijuana Lawyer
Thursday, November 19, 2015
Appearing in Court at the West Orange County Justice Center in Westminster: What to Expect
Part 4 in my series about appearing in court in Orange County. Today's post is focused specifically on the West Justice Center in Westminster. For more information about appearing in Santa Ana, Fullerton or Newport Beach, read my previous posts, below.
The West Orange County Justice Center is located at 1841 13th Street in Westminster, about 1 block east of Beach Blvd. From the 22 freeway, exit at Beach Blvd and head south. From the 405 Freeway, exit at Beach and head north.
The Westminster courthouse hears criminal cases from Costa Mesa, Cypress, Fountain Valley, Garden Grove, Huntington Beach, Los Alamitos, Seal Beach, Stanton and Westminster.
There are 3 parking lots -- one reserved for jurors, a free lot and a garage that charges to park. The free lot fills up early, so show up before 8:15 to save some money on parking.
Like the Harbor Justice Center, the courthouse in Westminster features an outdoor walk-up window for the clerk's office. You can make a payment, request an extension, reserve a court date, or obtain information about your case without going through the security screening process.
Also like the other courts in Orange County, you must find your name on the electronic display board as soon as you enter the building. The board will direct you to the appropriate courtroom.
Most misdemeanor arraignments and traffic matters are heard downstairs, in department W-3. For more information about what to expect at your misdemeanor arraignment, read my post about appearing at the North Justice Center in Fullerton, below.
If you plead "not guilty" at your misdemeanor arraignment, subsequent pre-trial conferences will be heard upstairs, in department W-15.
Most felonies are heard downstairs in departments W-1 or W-2. Once felony cases are set for preliminary hearings or motions, they are assigned out to a different department, depending on availability.
The West Justice Center is the smallest courthouse in the Orange County justice system. They pack a lot of people into a few rooms, so it gets a little crowded. There's no cafeteria inside the building, but there is a vending machine at the north end of the second floor. There's also a hot dog vendor out front if you're brave and hungry enough.
If you or a loved one has to appear in court at the West Justice Center in Orange County, call us for a free consultation. (714) 505-2468. Ask for John.
Thanks for reading.
Westminster Criminal Defense Attorney
The West Orange County Justice Center is located at 1841 13th Street in Westminster, about 1 block east of Beach Blvd. From the 22 freeway, exit at Beach Blvd and head south. From the 405 Freeway, exit at Beach and head north.
The Westminster courthouse hears criminal cases from Costa Mesa, Cypress, Fountain Valley, Garden Grove, Huntington Beach, Los Alamitos, Seal Beach, Stanton and Westminster.
There are 3 parking lots -- one reserved for jurors, a free lot and a garage that charges to park. The free lot fills up early, so show up before 8:15 to save some money on parking.
Like the Harbor Justice Center, the courthouse in Westminster features an outdoor walk-up window for the clerk's office. You can make a payment, request an extension, reserve a court date, or obtain information about your case without going through the security screening process.
Also like the other courts in Orange County, you must find your name on the electronic display board as soon as you enter the building. The board will direct you to the appropriate courtroom.
Most misdemeanor arraignments and traffic matters are heard downstairs, in department W-3. For more information about what to expect at your misdemeanor arraignment, read my post about appearing at the North Justice Center in Fullerton, below.
If you plead "not guilty" at your misdemeanor arraignment, subsequent pre-trial conferences will be heard upstairs, in department W-15.
Most felonies are heard downstairs in departments W-1 or W-2. Once felony cases are set for preliminary hearings or motions, they are assigned out to a different department, depending on availability.
The West Justice Center is the smallest courthouse in the Orange County justice system. They pack a lot of people into a few rooms, so it gets a little crowded. There's no cafeteria inside the building, but there is a vending machine at the north end of the second floor. There's also a hot dog vendor out front if you're brave and hungry enough.
If you or a loved one has to appear in court at the West Justice Center in Orange County, call us for a free consultation. (714) 505-2468. Ask for John.
Thanks for reading.
Westminster Criminal Defense Attorney
Friday, October 30, 2015
Brag Board: 10/30/15
I haven't updated this blog lately because I've been so busy negotiating great deals for my clients. Here are a couple recent success stories that I wanted to take a moment to brag about.
-People vs. A.T. (Riverside): Deputies from the Riverside County Sheriff's Department served a search warrant at my client's house. They found hundreds of marijuana plants growing in an elaborate hydroponic system. My client also had several pounds of processed, dried marijuana, a few ounces of concentrated cannabis ("honey oil", "butane hash oil", or "BHO"), equipment used to manufacture the hash oil, cash, firearms and ammunition. As a previously-convicted felon, my client was legally prohibited from possessing guns and ammo.
My client was charged with 5 felonies: cultivation of marijuana, possession for sale, manufacture of concentrated cannabis, possession of firearms by a felon, and possession of ammunition by a felon. The maximum penalty was approximately a decade in prison.
We learned that the sheriffs had relied on a confidential informant to obtain their search warrant. We demanded to know the identity of the informant so that we could effectively challenge the legality of the warrant. I wanted to know who this person was, what type of information he had provided to the police, how the police determined that the information was reliable, and what the police told a judge to get the warrant.
In order to preserve the confidentiality of their informant, the DA made my client an offer that was too good to refuse: probation and a little house arrest. As part of the negotiated deal, my client may use medical marijuana while on probation.
I call that a win.
-People v. M.F. (Fullerton): The CHP and Anaheim PD found 15 pounds of marijuana in my client's apartment. She was charged with possession for sale. The maximum penalty was 3 years in prison.
In this case, police entered my client's apartment under a bogus pretext. They claimed that they were investigating a suspected burglary and that they were checking on the "welfare" of the resident, because they had observed an unknown subject fleeing from her balcony. Luckily, the cops were wearing body cameras and we could prove that their story was nonsense.
Again, the DA made my client an offer that was too good to refuse. They reduced the charge to a misdemeanor and ordered 10 days of community service. The minute my client completes her community service, probation will terminate. Once that happens, she will immediately become eligible for an expungement.
10 days of community service and a couple weeks of probation for 15 pounds of marijuana? We'll take it.
Both of these cases are good examples of why no self-respecting criminal defense attorney keeps track of his or her "win / loss" record. If you ever hear a criminal lawyer brag about his "win / loss" record like a boxer, you should be very skeptical. Maybe hire somebody else.
In many criminal cases, it's impossible to distinguish a true "win" from a true "loss". When a client is facing a long prison sentence and the evidence clearly shows that he committed the crime(s), but he accepts a plea deal that seems disproportionately light, does that count as a "win"? When the facts tend to show that my client belongs in prison, but I successfully negotiate a "slap-on-the-wrist", does that go down in the win column or the loss column?
I'm very proud of the work that I did on behalf of my clients in both of these cases, but both of the clients ultimately stood before a judge and pled "guilty". I consider both of the above-described cases to be "wins", even though both clients were convicted. And I still don't keep track of my overall "win / loss" record.
If you or a loved one is accused of a crime, call us for a free consultation. (714) 505-2468. Ask for John. Thanks for reading.
-People vs. A.T. (Riverside): Deputies from the Riverside County Sheriff's Department served a search warrant at my client's house. They found hundreds of marijuana plants growing in an elaborate hydroponic system. My client also had several pounds of processed, dried marijuana, a few ounces of concentrated cannabis ("honey oil", "butane hash oil", or "BHO"), equipment used to manufacture the hash oil, cash, firearms and ammunition. As a previously-convicted felon, my client was legally prohibited from possessing guns and ammo.
My client was charged with 5 felonies: cultivation of marijuana, possession for sale, manufacture of concentrated cannabis, possession of firearms by a felon, and possession of ammunition by a felon. The maximum penalty was approximately a decade in prison.
We learned that the sheriffs had relied on a confidential informant to obtain their search warrant. We demanded to know the identity of the informant so that we could effectively challenge the legality of the warrant. I wanted to know who this person was, what type of information he had provided to the police, how the police determined that the information was reliable, and what the police told a judge to get the warrant.
In order to preserve the confidentiality of their informant, the DA made my client an offer that was too good to refuse: probation and a little house arrest. As part of the negotiated deal, my client may use medical marijuana while on probation.
I call that a win.
-People v. M.F. (Fullerton): The CHP and Anaheim PD found 15 pounds of marijuana in my client's apartment. She was charged with possession for sale. The maximum penalty was 3 years in prison.
In this case, police entered my client's apartment under a bogus pretext. They claimed that they were investigating a suspected burglary and that they were checking on the "welfare" of the resident, because they had observed an unknown subject fleeing from her balcony. Luckily, the cops were wearing body cameras and we could prove that their story was nonsense.
Again, the DA made my client an offer that was too good to refuse. They reduced the charge to a misdemeanor and ordered 10 days of community service. The minute my client completes her community service, probation will terminate. Once that happens, she will immediately become eligible for an expungement.
10 days of community service and a couple weeks of probation for 15 pounds of marijuana? We'll take it.
Both of these cases are good examples of why no self-respecting criminal defense attorney keeps track of his or her "win / loss" record. If you ever hear a criminal lawyer brag about his "win / loss" record like a boxer, you should be very skeptical. Maybe hire somebody else.
In many criminal cases, it's impossible to distinguish a true "win" from a true "loss". When a client is facing a long prison sentence and the evidence clearly shows that he committed the crime(s), but he accepts a plea deal that seems disproportionately light, does that count as a "win"? When the facts tend to show that my client belongs in prison, but I successfully negotiate a "slap-on-the-wrist", does that go down in the win column or the loss column?
I'm very proud of the work that I did on behalf of my clients in both of these cases, but both of the clients ultimately stood before a judge and pled "guilty". I consider both of the above-described cases to be "wins", even though both clients were convicted. And I still don't keep track of my overall "win / loss" record.
If you or a loved one is accused of a crime, call us for a free consultation. (714) 505-2468. Ask for John. Thanks for reading.
Wednesday, September 16, 2015
Everything You Know About Medical Marijuana in California is Wrong
The California Legislature has approved a trio of new laws that will completely change the way we regulate medical marijuana in the Golden State. Forget everything that you thought you knew.
The new package of bills will collectively be called, "The Medical Marijuana Regulation and Safety Act". It will create a comprehensive new system to govern virtually every aspect of California's medical marijuana industry. Growers, transporters, testers / inspectors, distributors and retail sales shops will all be required to hold specific state-issued licenses. It also establishes a Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs to enforce the new legislation.
If signed into law by Gov. Brown, the MMRSA will take effect on January 1, 2016. Experts predict that it could take another year for the state to create the necessary infrastructure to actually begin implementing the law. In the meantime, dispensaries that are currently operating in compliance with state and local laws may continue to do so until their new applications have been approved or denied.
The MMRSA will create a system by which state regulators will be able to track all medical marijuana, from cultivation to consumption. It will require growers to send their finished products to licensed distributors. The distributors will be responsible for having the cannabis tested and inspected at licensed facilities before sending it on to retailers.
Growers will be limited to one acre for outdoor cultivation or 22,000 square feet for indoor grow operations.
Under the old system, "vertical integration" had been mandatory -- a dispensary must cultivate, transport and distribute its own cannabis. The new scheme actually limits the ability of license-holders to do so by placing restrictions on the number and type of permits that a single entity may hold.
The MMRSA will allow for-profit sales of marijuana for the first time. It also contains a provision for licensing manufacturers who produce concentrates using volatile solvents, which is illegal under existing law.
Currently, collectives that operate in accordance with state law are shielded from prosecution under HS 11362.775 (also known as "SB-420", or "The Medical Marijuana Program Act"). The new scheme includes a sunset clause for these provisions. HS 11362.775 will expire one year after the first new licenses are issued.
The MMRSA includes regulations for doctors who issue recommendations for medical marijuana. The medical board will now assign special priority to investigating physicians who repeatedly and excessively recommend marijuana to patients without first conducting an examination in good faith. Doctors will be prohibited from accepting or offering any sort of remuneration to or from a license-holder in which the doctor or a family member has a financial interest.
California is in dire need of a coherent, comprehensive regulatory scheme that protects patients and cannabis providers without imposing undue red tape and expenses. The current state of affairs is not sustainable. The multi-million-dollar market for medical marijuana in California no longer fits within the regulatory framework that the legislature envisioned when it passed SB-420. Current laws are unclear and subject to conflicting interpretations by different judges in different courts. Federal prosecutors have said that they will not interfere with local operations that are "in clear and unambiguous" compliance with their state laws. Unfortunately, nobody is in "clear and unambigious" compliance with medical marijuana laws in California because those laws are ambiguous and unclear in their meaning.
It remains to be seen whether or not this proposed system will help patients obtain their medical marijuana safely and affordably. If the system is implemented in an efficient and effective manner, it could provide greater protection and reduce uncertainty for everyone involved in California's growing medical marijuana industry. If the system is poorly managed or laden with excessive costs and bureaucratic ineptitude, it may drive consumers back to the black market, where no standards exist to ensure patient safety.
Stay tuned to see what happens when Californians vote to legalize recreational marijuana use next year...
Special thanks to OC NORML for contributing to my research.
Santa Ana Cannabis Lawyer
The new package of bills will collectively be called, "The Medical Marijuana Regulation and Safety Act". It will create a comprehensive new system to govern virtually every aspect of California's medical marijuana industry. Growers, transporters, testers / inspectors, distributors and retail sales shops will all be required to hold specific state-issued licenses. It also establishes a Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs to enforce the new legislation.
If signed into law by Gov. Brown, the MMRSA will take effect on January 1, 2016. Experts predict that it could take another year for the state to create the necessary infrastructure to actually begin implementing the law. In the meantime, dispensaries that are currently operating in compliance with state and local laws may continue to do so until their new applications have been approved or denied.
The MMRSA will create a system by which state regulators will be able to track all medical marijuana, from cultivation to consumption. It will require growers to send their finished products to licensed distributors. The distributors will be responsible for having the cannabis tested and inspected at licensed facilities before sending it on to retailers.
Growers will be limited to one acre for outdoor cultivation or 22,000 square feet for indoor grow operations.
Under the old system, "vertical integration" had been mandatory -- a dispensary must cultivate, transport and distribute its own cannabis. The new scheme actually limits the ability of license-holders to do so by placing restrictions on the number and type of permits that a single entity may hold.
The MMRSA will allow for-profit sales of marijuana for the first time. It also contains a provision for licensing manufacturers who produce concentrates using volatile solvents, which is illegal under existing law.
Currently, collectives that operate in accordance with state law are shielded from prosecution under HS 11362.775 (also known as "SB-420", or "The Medical Marijuana Program Act"). The new scheme includes a sunset clause for these provisions. HS 11362.775 will expire one year after the first new licenses are issued.
The MMRSA includes regulations for doctors who issue recommendations for medical marijuana. The medical board will now assign special priority to investigating physicians who repeatedly and excessively recommend marijuana to patients without first conducting an examination in good faith. Doctors will be prohibited from accepting or offering any sort of remuneration to or from a license-holder in which the doctor or a family member has a financial interest.
California is in dire need of a coherent, comprehensive regulatory scheme that protects patients and cannabis providers without imposing undue red tape and expenses. The current state of affairs is not sustainable. The multi-million-dollar market for medical marijuana in California no longer fits within the regulatory framework that the legislature envisioned when it passed SB-420. Current laws are unclear and subject to conflicting interpretations by different judges in different courts. Federal prosecutors have said that they will not interfere with local operations that are "in clear and unambiguous" compliance with their state laws. Unfortunately, nobody is in "clear and unambigious" compliance with medical marijuana laws in California because those laws are ambiguous and unclear in their meaning.
It remains to be seen whether or not this proposed system will help patients obtain their medical marijuana safely and affordably. If the system is implemented in an efficient and effective manner, it could provide greater protection and reduce uncertainty for everyone involved in California's growing medical marijuana industry. If the system is poorly managed or laden with excessive costs and bureaucratic ineptitude, it may drive consumers back to the black market, where no standards exist to ensure patient safety.
Stay tuned to see what happens when Californians vote to legalize recreational marijuana use next year...
Special thanks to OC NORML for contributing to my research.
Santa Ana Cannabis Lawyer
Tuesday, June 16, 2015
I Was Arrested for Cultivation, But I Have a Medical Marijuana Card
Qualified patients in California may possess, cultivate, transport and use marijuana for medical purposes. State laws provide some degree of protection against criminal prosecution if the patient can prove that he or she possesses a valid recommendation from a doctor and that the quantity of marijuana possessed is reasonably related to his or her medical needs.
Keep in mind, however, that marijuana remains illegal in California.
The protections described above may establish a defense against criminal charges after you have been arrested, but don't expect police to simply "look the other way" if they catch you cultivating, possessing, transporting or using marijuana. Remember, a valid medical marijuana recommendation is a defense in court, not an immunity against being arrested on suspicion of some marijuana-related crime.
Police don't have the time, training or interest in determining the validity of your recommendation. They don't understand the nuances of California's complicated medical marijuana laws (and they aren't expected to). They know how to make arrests and write reports.
Even if you are within your rights and you only cultivate a small amount of marijuana for personal consumption, you can still be arrested. Your house can be searched and you can be prosecuted for anything that is discovered during your arrest -- this includes illegal guns, drugs, stolen property / utilities, etc. You will have to post bail, hire an attorney and appear in court. Put simply, you will be treated like a criminal.
Once you appear in court, you and your attorney will have an opportunity to present a defense based on your status as a qualified patient. This may include calling your doctor as a witness to establish the fact that your recommendation is legit and valid. Of course, a recommendation is only as good as the doctor who is willing to come to court and testify that he or she actually wrote it. If the doctor is M.I.A., you could be S.O.L.
Presenting a medical marijuana defense gets complicated if you are accused of possession for sale, manufacturing concentrates or possessing other contraband. You may have a defense based on an unlawful search, mishandled evidence, improper police work or by proving that you operate a "collective", even if the collective itself is unlicensed.
If you or a loved one is accused of any marijuana-related crime, regardless of whether or not you are a "qualified patient", call our firm for a free consultation. We know how to protect your rights and your criminal record. (714) 505-2468. Ask for John.
Thanks for reading.
Keep in mind, however, that marijuana remains illegal in California.
The protections described above may establish a defense against criminal charges after you have been arrested, but don't expect police to simply "look the other way" if they catch you cultivating, possessing, transporting or using marijuana. Remember, a valid medical marijuana recommendation is a defense in court, not an immunity against being arrested on suspicion of some marijuana-related crime.
Police don't have the time, training or interest in determining the validity of your recommendation. They don't understand the nuances of California's complicated medical marijuana laws (and they aren't expected to). They know how to make arrests and write reports.
Even if you are within your rights and you only cultivate a small amount of marijuana for personal consumption, you can still be arrested. Your house can be searched and you can be prosecuted for anything that is discovered during your arrest -- this includes illegal guns, drugs, stolen property / utilities, etc. You will have to post bail, hire an attorney and appear in court. Put simply, you will be treated like a criminal.
Once you appear in court, you and your attorney will have an opportunity to present a defense based on your status as a qualified patient. This may include calling your doctor as a witness to establish the fact that your recommendation is legit and valid. Of course, a recommendation is only as good as the doctor who is willing to come to court and testify that he or she actually wrote it. If the doctor is M.I.A., you could be S.O.L.
Presenting a medical marijuana defense gets complicated if you are accused of possession for sale, manufacturing concentrates or possessing other contraband. You may have a defense based on an unlawful search, mishandled evidence, improper police work or by proving that you operate a "collective", even if the collective itself is unlicensed.
If you or a loved one is accused of any marijuana-related crime, regardless of whether or not you are a "qualified patient", call our firm for a free consultation. We know how to protect your rights and your criminal record. (714) 505-2468. Ask for John.
Thanks for reading.
Wednesday, March 25, 2015
Police Took My Marijuana. Can I Get it Back?
Since the passage of Prop. 63, adults in California may use, possess and cultivate marijuana for their personal use. Despite its legal status, though, marijuana remains highly regulated and controlled. Just like alcohol, individuals may not sell, transport or distribute the substance without the appropriate licenses.
Prior to the adoption of Prop. 63, medical marijuana was governed by a patchwork of state laws and ballot initiatives. Taken together, Prop. 215 (The Compassionate Use Act) and SB-420 (The Medical Marijuana Program Act) provided a lot of protections for Californians who used medical marijuana with a doctor's recommendation. Unfortunately, I still encounter many people who are surprised to learn that those protections don't go as far as they had imagined.
If you're found in possession of a significant amount of marijuana or if you are caught cultivating more than 6 plants at a time, you should expect to be arrested. You should also expect that the police will seize your cannabis and your growing equipment. They will claim that the property is intended for illegal distribution and thus, it is contraband (because, as stated above, commercial marijuana is still highly regulated).
Eventually, the DA might decline to pursue criminal charges against you, or your attorney might successfully petition the court to dismiss those charges. Even after you have been exonerated of any criminal wrong-doing, though, the police might still refuse to return your cannabis and your expensive growing equipment.
That's where I step in.
There is a process in California for obtaining a court order, signed by a judge, directing the local police department to give you back your property if you can prove that you are the lawful owner of the property and the property is not contraband or evidence in a pending criminal case. The property at issue can be a car, a computer, a weapon, a pile of cash, or even your marijuana. Of course, when marijuana is involved, the process is a little more complicated, but don't be discouraged. Our firm has experience in fighting on behalf of cannabis consumers and growers.
A petition for the return of marijuana in California is called a "Kha" motion, named for the case in which the argument was first applied. In order to prevail on your Kha motion, you and your attorney will need to convincingly demonstrate several things.
First, we must show that you are lawfully entitled to possess marijuana. This used to mean proving that your doctor had actually recommended the use of medical marijuana to treat some serious medical condition. Today, it just means that you are over 21 years of age and that the quantity found in your possession was not "excessive".
After we prove that you are authorized to possess or cultivate the quantity that was found in your possession, we must prove that the marijuana is not evidence in any pending criminal case. Even if you are allowed to possess or grow a certain amount, you could still be criminally liable for illegally selling / distributing that marijuana or engaging in some other marijuana-related crime (like manufacturing hash oil without the appropriate permits). Talk to your attorney about any potential risks involved with petitioning for the return of your medicine. By testifying on your own behalf, you could incriminate yourself by admitting that you possessed more than the legal limit or that you were involved with illegal distribution.
If your marijuana is destroyed by police during its seizure or its storage, you may also be entitled to compensation for its fair value.
The fight for marijuana rights in California has been long and hard-fought. For years, seriously ill patients were subjected to imprisonment for using the only medicine that granted them relief. We've come a long way since voters approved medical marijuana in 1996. Cannabis continues to gain acceptance and consumers are winning more protections with each courtroom victory. Unfortunately, many law enforcement agencies refuse to recognize this progress. Some police departments are still trained to believe that cannabis is inherently dangerous. They will cut down your crops, arrest you and take you to jail, understanding that most people simply don't have the time or the resources to assert their rights. Too often, they're right. Don't let them get away with this. If police are running roughshod over your rights, hold them accountable. Take a principled stand, demand the return of your property and let them know that it's time to stop abusing cannabis consumers in California.
If police have seized your medical marijuana, call our office for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Marijuana Lawyer
Prior to the adoption of Prop. 63, medical marijuana was governed by a patchwork of state laws and ballot initiatives. Taken together, Prop. 215 (The Compassionate Use Act) and SB-420 (The Medical Marijuana Program Act) provided a lot of protections for Californians who used medical marijuana with a doctor's recommendation. Unfortunately, I still encounter many people who are surprised to learn that those protections don't go as far as they had imagined.
If you're found in possession of a significant amount of marijuana or if you are caught cultivating more than 6 plants at a time, you should expect to be arrested. You should also expect that the police will seize your cannabis and your growing equipment. They will claim that the property is intended for illegal distribution and thus, it is contraband (because, as stated above, commercial marijuana is still highly regulated).
Eventually, the DA might decline to pursue criminal charges against you, or your attorney might successfully petition the court to dismiss those charges. Even after you have been exonerated of any criminal wrong-doing, though, the police might still refuse to return your cannabis and your expensive growing equipment.
That's where I step in.
There is a process in California for obtaining a court order, signed by a judge, directing the local police department to give you back your property if you can prove that you are the lawful owner of the property and the property is not contraband or evidence in a pending criminal case. The property at issue can be a car, a computer, a weapon, a pile of cash, or even your marijuana. Of course, when marijuana is involved, the process is a little more complicated, but don't be discouraged. Our firm has experience in fighting on behalf of cannabis consumers and growers.
A petition for the return of marijuana in California is called a "Kha" motion, named for the case in which the argument was first applied. In order to prevail on your Kha motion, you and your attorney will need to convincingly demonstrate several things.
First, we must show that you are lawfully entitled to possess marijuana. This used to mean proving that your doctor had actually recommended the use of medical marijuana to treat some serious medical condition. Today, it just means that you are over 21 years of age and that the quantity found in your possession was not "excessive".
After we prove that you are authorized to possess or cultivate the quantity that was found in your possession, we must prove that the marijuana is not evidence in any pending criminal case. Even if you are allowed to possess or grow a certain amount, you could still be criminally liable for illegally selling / distributing that marijuana or engaging in some other marijuana-related crime (like manufacturing hash oil without the appropriate permits). Talk to your attorney about any potential risks involved with petitioning for the return of your medicine. By testifying on your own behalf, you could incriminate yourself by admitting that you possessed more than the legal limit or that you were involved with illegal distribution.
If your marijuana is destroyed by police during its seizure or its storage, you may also be entitled to compensation for its fair value.
The fight for marijuana rights in California has been long and hard-fought. For years, seriously ill patients were subjected to imprisonment for using the only medicine that granted them relief. We've come a long way since voters approved medical marijuana in 1996. Cannabis continues to gain acceptance and consumers are winning more protections with each courtroom victory. Unfortunately, many law enforcement agencies refuse to recognize this progress. Some police departments are still trained to believe that cannabis is inherently dangerous. They will cut down your crops, arrest you and take you to jail, understanding that most people simply don't have the time or the resources to assert their rights. Too often, they're right. Don't let them get away with this. If police are running roughshod over your rights, hold them accountable. Take a principled stand, demand the return of your property and let them know that it's time to stop abusing cannabis consumers in California.
If police have seized your medical marijuana, call our office for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Marijuana Lawyer
Tuesday, June 10, 2014
The Future of Medical Marijuana Dispensaries in Santa Ana
Updated 9/16/15: The California State Legislature has approved a package of laws that will create a comprehensive new system to regulate medical marijuana. Click on the link for more information about the Medical Marijuana Regulation and Safety Act.
Updated 11/10/14: Both proposed ordinances passed, but the Council's measure garnered more total votes. The new ordinance will take effect December 19. The city's Director of Planning will now prepare an application packet that each dispensary must submit. Once all qualified applications are received, the city will hold a lottery to randomly select 20 dispensaries that will be permitted to operate within 2 designated areas.
Updated 7/24/14: The OC Register is reporting that the Santa Ana City Council recently voted to earmark $500,000 for a task force devoted specifically to shutting down illegal dispensaries in the city. According to the author, SA police cited or arrested 42 people over the course of 2 days for crimes related to working in, owning, managing or volunteering at illegal shops. Stay tuned for more details as they become available.
The future of Santa Ana's bustling medical marijuana industry hangs in the balance, as activists and local leaders grapple with the city's proliferation of storefront dispensaries.
As of today, nearly 50 active pot shops operate within Santa Ana, mostly concentrated around "the green mile" -- 17th Street, between Grand & the 55 Freeway. That number has fluctuated wildly over the past couple years, due largely to inconsistent enforcement and market forces.
Santa Ana imposed an official ban on storefront dispensaries in 2007. Since that time, enforcement actions have shuttered 177 collectives. Despite the city's efforts, though, clubs are often operating again within days.
The high turn-over in "fly-by-night" pot shops has frustrated observers on both sides of the debate. City leaders and code enforcement officials complain that, despite their best efforts, the lure of quick money attracts new dispensaries faster than law enforcement can shut them down. Seriously ill patients complain about the safety, security and lack of regulation at "less-than-legitimate" collectives.
We all agree that the current status of medical marijuana in Santa Ana is not sustainable. Only a clear, concise set of reasonable regulations will bring some order to Santa Ana's green mile. Residents need assurances that the pot shops in their backyards aren't attracting crime or degrading the quality of life in their neighborhoods. Patients need a safe, affordable and reliable source for their medicine.
Medical marijuana activists have gathered enough signatures to qualify a ballot initiative for the November election. If approved by voters, The "Medical Cannabis Restriction and Limitation Initiative" would establish a process for collectives to register with the city and to pay a 2% sales tax. It would prohibit loitering and smoking on the premises and would restrict areas where pot shops could operate. Kandice Hawes, president of OC NORML, says, "We feel that people do want medical marijuana collectives. They want them to be controlled and safe, and they want the participation of the city and the police departments."
The City Council is now debating whether or not to place its own, competing measure on the ballot. The city's proposal would impose a 5-10% tax and would cap the total number of licensed shops, and would restrict dispensaries to two industrial zones within the city.
If we've learned anything from our country's failed social experiment called "prohibition", it should be that the government cannot simply make something go away by making it illegal. The market forces of supply and demand are far more powerful than any local code enforcement agency. Driving the market underground causes more problems than it solves. When the product is outlawed, the government turns its citizens into outlaws. I understand and support the city's need for comprehensive, effective regulation of this emerging industry. Residents should feel secure in their homes, without excessive traffic, loitering and other nuisance behavior. The Council's proposed ordinance could be counterproductive, though, if it overtaxes marijuana or places an artificial cap on the number of shops that are permitted to operate within the city. Let the market decide how many shops will operate. If dispensaries are overly restricted and taxed, prices are likely to climb and many consumers will turn back to the black market.
Unlike the Council's proposed ordinance, the Medical Cannabis Restriction and Limitation Initiative (or MCRLI) sounds like an effective way to address the community's concerns while ensuring that qualified patients have safe and convenient access to their medicine. It will protect children, generate revenue for the city without imposing burdensome taxes, and reduce the harmful impact that some collectives have had on their surrounding neighborhoods.
This November, vote to save medical marijuana in Santa Ana. Vote "yes" on the Medical Cannabis Restriction and Limitation Initiative. If the Council votes to place its own, competing measure on the ballot, tell them to butt out and let the free market do what it does best.
Disagree? Let me know in the comments section, below.
Thank for reading.
Updated 11/10/14: Both proposed ordinances passed, but the Council's measure garnered more total votes. The new ordinance will take effect December 19. The city's Director of Planning will now prepare an application packet that each dispensary must submit. Once all qualified applications are received, the city will hold a lottery to randomly select 20 dispensaries that will be permitted to operate within 2 designated areas.
Updated 7/24/14: The OC Register is reporting that the Santa Ana City Council recently voted to earmark $500,000 for a task force devoted specifically to shutting down illegal dispensaries in the city. According to the author, SA police cited or arrested 42 people over the course of 2 days for crimes related to working in, owning, managing or volunteering at illegal shops. Stay tuned for more details as they become available.
The future of Santa Ana's bustling medical marijuana industry hangs in the balance, as activists and local leaders grapple with the city's proliferation of storefront dispensaries.
As of today, nearly 50 active pot shops operate within Santa Ana, mostly concentrated around "the green mile" -- 17th Street, between Grand & the 55 Freeway. That number has fluctuated wildly over the past couple years, due largely to inconsistent enforcement and market forces.
Santa Ana imposed an official ban on storefront dispensaries in 2007. Since that time, enforcement actions have shuttered 177 collectives. Despite the city's efforts, though, clubs are often operating again within days.
The high turn-over in "fly-by-night" pot shops has frustrated observers on both sides of the debate. City leaders and code enforcement officials complain that, despite their best efforts, the lure of quick money attracts new dispensaries faster than law enforcement can shut them down. Seriously ill patients complain about the safety, security and lack of regulation at "less-than-legitimate" collectives.
We all agree that the current status of medical marijuana in Santa Ana is not sustainable. Only a clear, concise set of reasonable regulations will bring some order to Santa Ana's green mile. Residents need assurances that the pot shops in their backyards aren't attracting crime or degrading the quality of life in their neighborhoods. Patients need a safe, affordable and reliable source for their medicine.
Medical marijuana activists have gathered enough signatures to qualify a ballot initiative for the November election. If approved by voters, The "Medical Cannabis Restriction and Limitation Initiative" would establish a process for collectives to register with the city and to pay a 2% sales tax. It would prohibit loitering and smoking on the premises and would restrict areas where pot shops could operate. Kandice Hawes, president of OC NORML, says, "We feel that people do want medical marijuana collectives. They want them to be controlled and safe, and they want the participation of the city and the police departments."
The City Council is now debating whether or not to place its own, competing measure on the ballot. The city's proposal would impose a 5-10% tax and would cap the total number of licensed shops, and would restrict dispensaries to two industrial zones within the city.
If we've learned anything from our country's failed social experiment called "prohibition", it should be that the government cannot simply make something go away by making it illegal. The market forces of supply and demand are far more powerful than any local code enforcement agency. Driving the market underground causes more problems than it solves. When the product is outlawed, the government turns its citizens into outlaws. I understand and support the city's need for comprehensive, effective regulation of this emerging industry. Residents should feel secure in their homes, without excessive traffic, loitering and other nuisance behavior. The Council's proposed ordinance could be counterproductive, though, if it overtaxes marijuana or places an artificial cap on the number of shops that are permitted to operate within the city. Let the market decide how many shops will operate. If dispensaries are overly restricted and taxed, prices are likely to climb and many consumers will turn back to the black market.
Unlike the Council's proposed ordinance, the Medical Cannabis Restriction and Limitation Initiative (or MCRLI) sounds like an effective way to address the community's concerns while ensuring that qualified patients have safe and convenient access to their medicine. It will protect children, generate revenue for the city without imposing burdensome taxes, and reduce the harmful impact that some collectives have had on their surrounding neighborhoods.
This November, vote to save medical marijuana in Santa Ana. Vote "yes" on the Medical Cannabis Restriction and Limitation Initiative. If the Council votes to place its own, competing measure on the ballot, tell them to butt out and let the free market do what it does best.
Disagree? Let me know in the comments section, below.
Thank for reading.
Wednesday, May 7, 2014
Update on Medical Marijuana in California
Updated 9/16/15: The California Legislature has approved a set of laws that will completely change the way medical marijuana is regulated in the state. Follow the link for more information regarding the Medical Marijuana Regulation and Safety Act.
A Los Angeles appellate court handed down a decision last week that could dramatically change the way that dispensaries conduct business in the state. If you operate or grow for a collective, you must be aware of the new rules (or new interpretation of the old rules).
A Los Angeles appellate court handed down a decision last week that could dramatically change the way that dispensaries conduct business in the state. If you operate or grow for a collective, you must be aware of the new rules (or new interpretation of the old rules).
California law allows qualified patients to form non-profit organizations for the purpose of cultivating and distributing marijuana among themselves. The authors of the law envisioned a group of patients who would pool their resources and designate one member of the group to cultivate all of the medicine for the entire club. Members of the club would then compensate the club for the value of the medicine that each member consumed, and the club would compensate the grower for his expenses, plus the value of his time, labor and skill. Money may change hands during these transactions, but clubs were -- and are -- prohibited from acting on a for-profit basis.
Defendant in this case, Brian Mitchell, was the designated grower for a collective in Los Angeles. He was a member of the club and had proper documentation to prove that he was both a qualified patient and a duly-designated cultivator. Mr. Mitchell established his own corporation, Herbmetics, Inc., for the purpose of cultivating medical marijuana on behalf of the club. He obtained seller's permits in his own name from the state Board of Equalization and paid taxes as required.
Mr. Mitchell was arrested and convicted for illegally cultivating marijuana in state court. At trial, it was determined that the club to which he provided his cannabis, "Keeping It Medical", was improperly organized as a for-profit corporation. Since K.I.M. operated for profit, a judge ruled that Mr. Mitchell was not entitled to rely upon the limited immunity provided under California's medical marijuana laws. He was convicted, and a court of appeals recently affirmed the conviction.
The court did a very poor job of explaining their reasoning in this case. I've read the opinion, and I'm still not clear on what the judges determined to be the deciding factor. I spotted several issues where the judges seemed to focus their attention, but they never gave any indication as to what they found most compelling -- or how someone might avoid those pitfalls in the future. Here are some of the factors that I think steered the court's judgement:
-The fact that the club itself, "Keeping It Medical", was organized as a for-profit corporation (rather than a cooperative, a collective, or a not-for-profit mutual benefit corporation). Since California's medical marijuana laws allow patients to collectively cultivate marijuana on a not-for-profit basis, the court found that individuals or clubs who operate on a for-profit basis may not avail themselves of the limited immunity provided under HS 11362.775, even though the defendant was a member / vendor and not the owner or operator of K.I.M.
-The fact that Mr. Mitchell formed his own corporation, Herbmatics, Inc., and sold his product to ANOTHER corporation, K.I.M. The law doesn't say anything about this type of arrangement, but courts and law enforcement agencies frown upon dealers who sell outside of their own non-profit organization. According to the California Attorney General's interpretation of the law, medical marijuana clubs may cultivate their OWN cannabis, but they should not buy or sell medicine outside of their own closed-loop distribution network. Again, the law is silent here, but medical marijuana entrepreneurs who grow under one corporate name and sell to another corporation will enjoy fewer legal protections than clubs that maintain ownership of their own plants from seed to flower.
-The fact that the Mr. Mitchell's written agreements with K.I.M. provided for a set annual salary, regardless of his costs or the quantity of cannabis that he provided to the club. As discussed above, money may change hands during these types of transactions, but parties must be able to demonstrate that the costs of the marijuana are reasonably related to the grower's expenses. If the grower is making significant income but cannot prove the value of his costs and labor, he's going to have a hard time defending himself in court.
Expect this case to work its way up to the State Supreme Court, where the rules are likely to get flipped on their heads again. Until we get a more coherent set of laws on the subject, more people like Mr. Mitchell are likely to end up behind bars for activities that they honestly believed were protected under the law.
Speaking of....
California might soon get a more coherent set of medical marijuana laws! The State Senate Health Committee recently approved SB 1262, a proposed set of regulations to govern medical marijuana here in California. The new regulations had been opposed by CA NORML, which was primarily concerned with some provisions that would have limited the ability of doctors to recommend marijuana to their patients. After those provisions were dropped from the bill, CA NORML Director Dale Gieringer declared that it "was on the right track".
If passed by the full Senate and State Assembly, the bill will require doctors who recommend marijuana to also discuss possible side effects of the drug with their patients. They would also be responsible for conducting appropriate examinations and follow-up consultations with patients. It would impose penalties for doctors who fail to properly examine patients before recommending marijuana.
The bill will explicitly allow cities and counties to restrict or prohibit marijuana dispensaries within their borders. It will establish systems for licensing cultivation sites and for assuring quality and purity of cannabis sold at dispensaries. The law will also require dispensaries to adopt certain security measures to prevent thefts.
Medical marijuana advocates believe that the regulations are valuable to clarify the legal protections for growers, transporters, dispensary operators and others involved in this budding industry. The federal government has also pledged to respect state marijuana laws where there is a "strong and effective" regulatory scheme in place. Until now, however, California's regulatory scheme has been neither strong, nor effective. This absence of clear guidance has exposed patients to federal raids. Hopefully, a clear and concise set of rules in California will help seriously ill patients access their medicine while reducing crime and the other harms associated with our great social experiment.
If you have questions about medical marijuana in California, call The Law Offices of John W. Bussman for a free consultation. (714) 505-2468. Thanks for reading.
Friday, March 28, 2014
How to Start a Legal Marijuana Dispensary in California
If you're interested in starting your own medical marijuana dispensary in California, you must first recognize the risks inherent in doing so. Once you recognize the risks, you can work to mitigate them. Put simply, there is no "safe" way to operate a dispensary. By strictly complying with all applicable laws, regulations and guidelines, however, you can seriously reduce the chances that you will run afoul of the law.
Marijuana remains illegal federally, but the Obama administration has indicated that it will not seek to bust those individuals who remain in "clear and unambiguous" compliance with the laws of their state. Unfortunately, nobody is in "clear and unambiguous" compliance with California law because California law is unclear and ambiguous itself. The unsettled status of our law has created a "green rush" through a legal minefield. Unfortunately, many cannabis entrepreneurs fail to take the appropriate legal precautions before wading into this new, dangerous and evolving industry. They often learn about the risks the hard way.
Marijuana remains illegal federally, but the Obama administration has indicated that it will not seek to bust those individuals who remain in "clear and unambiguous" compliance with the laws of their state. Unfortunately, nobody is in "clear and unambiguous" compliance with California law because California law is unclear and ambiguous itself. The unsettled status of our law has created a "green rush" through a legal minefield. Unfortunately, many cannabis entrepreneurs fail to take the appropriate legal precautions before wading into this new, dangerous and evolving industry. They often learn about the risks the hard way.
When operating a marijuana dispensary, your mantra must always be "CYA" (Cover Your A**). Keeping your proverbial ducks in a row will reduce the risk of attracting unwanted attention from law enforcement. Maintaining proper, professionally-prepared documentation will also help establish your legal defenses if you are ever accused of any crimes related to the operation of your dispensary.
Many of my clients call me after they've been raided. They've often failed to properly cover their a**es when they were setting up and running their dispensaries. Now they face serious criminal charges for conspiracy, cultivation, transportation, possession and sale of marijuana. Their documentation may be improper or insufficient to establish a medical defense. Prosecutors can prove that my clients were growing marijuana or trading it for money, but my clients cannot prove that their activities were performed pursuant to any lawfully-organized cannabis club.
Don't make this mistake.
Before you begin the process of forming your dispensary, you should consult with a qualified attorney (such as myself) to ensure your compliance with local laws. Our firm offers a variety of services to cannabis start-ups, including initial consulting services, help with business formation (filing articles of incorporation, depending on the business entity that best suits your individual circumstances), obtaining a Seller's Permit and Employer Identification Number, drafting of necessary documents that your dispensary will use in daily operations (contracts, bylaws, membership agreements, etc.), ensuring continuing compliance, and training your employees on the law.
After consulting with a qualified attorney, you must begin the process of creating your business plan. Your business plan will include such considerations as the form that your business entity will take. Depending on the size of your proposed project and the number of partners involved, you might choose to organize as a collective, a cooperative or a non-profit mutual interest corporation. Your attorney will explain the advantages and disadvantages of each business form. Some types of business entities require you to file complicated documents with the Secretary of State, including Articles of Incorporation and governing bylaws. Our firm can handle this entire process for you, or we can simply advise you if you wish to prepare and file the documents yourself.
Once you've formed your business entity by filing the appropriate documents with the state, you must apply for a Seller's Permit and Employee Identification Number for tax purposes. Unlike other types of "medicine", the California Board of Equalization has determined that medical marijuana is taxable and that dispensaries must pay sales taxes. Again, we can prepare the necessary documentation for you, or else we can provide helpful advice if you wish to do it yourself.
After your dispensary is properly formed and you have your Seller's Permit / EIN, you must begin the laborious process of drafting the various contracts and agreements for members, growers, transporters, employees, caregivers, etc. Our firm will draft original contracts to specifically meet the needs of your unique dispensary.
Once your shop is open and running, you must take care to ensure that your employees are adequately trained on both the law and the shop's in-house policies. As the owner, you may be held legally responsible for crimes committed by your employees in certain circumstances. You can also be sued or exposed to civil liability for activities that occur in and around your dispensary. We can advise you regarding how to limit your own exposure to costly civil lawsuits and to criminal liability for crimes committed by your employees. We can also provide regular employee training and continuing consulting services to ensure that your dispensary remains compliant with the evolving laws.
If you've ever considered starting your own marijuana dispensary in California, call our office today to schedule a free consultation. (714) 449-3335.
Thursday, May 16, 2013
AB 473: Turd Stew's Worst Enemy
State Assemblyman Tom Ammiano (D - San Francisco) recently introduced a bill in the state legislature that could finally bring some clarity to the convoluted mess surrounding California's tangled medical marijuana laws. This blog regularly refers to CA's current MMJ framework as "turd stew", because it's murky, it's unappealing, and it's not what any of us ordered.
As previously discussed here, California voters overwhelmingly approved Prop. 215 (commonly referrred to as the "Compassionate Use Act", or "CUA") in 1996, which exempted "qualified patients" from most marijuana-related laws. Those protections were extended in 2003 under SB 420 (also known as the "Medical Marijuana Program", or "MMP"). The MMP allowed patients to "collectivize" in order to help each other procure their medication. MMP "collectives" quickly evolved into storefront dispensaries that served walk-in "patients".
As dispensaries proliferated over the following decade, cities and counties struggled with many unforeseen effects of marijuana's quasi-legal status. In the absence of adequate zoning regulations, fly-by-night dispensaries sprung up (often without business licenses) in apartment buildings, near schools and in other sensitive locations. Neighbors complained about crime, traffic, noise, odors, and related concerns. Without any sort of legal oversight or inspection process, growers stole electricity by circumventing electrical meters. Unpermitted outdoor grows contaminated waterways and damaged sensitive fish spawning grounds. Meanwhile, patients had no way of knowing if their cannabis was tainted with pesticides (or actual pests), mold, etc.
Cities and counties experimented with various methods of controlling the heretofore unchecked proliferation of storefront dispensaries. As previously discussed on this blog, the city of Long Beach implemented a lottery system, whereby applicants paid huge fees for a chance to win one of a limited number of "dispensary licenses". Other cities imposed zoning restrictions or prohibited the shops altogether. Californian patients were left with a mishmash of local laws that varied wildly from town to town.
Ambiguities within the existing laws were filled in by the courts, sometimes with contradictory results. Consequently, there is still very little agreement in California today over what the various laws actually mean. This is, in a nutshell, how we achieved today's current state of "turd stew" -- just a big, steaming bowl of something we don't even recognize.
As if things weren't bad enough already for Californian medical marijuana patients, enter the DEA. The Obama administration began an aggressive new policy of targeting medical marijuana collectives in 2011. Publicly, the Justice Department stated that it would not go after any clubs that were in "clear and unambiguous compliance with state laws". Unfortunately, NOBODY is in "clear and unambiguous compliance" with CA law because nobody understands what CA law actually is. As a result, every clinic in CA is subject to a federal raid at any time. This has created a climate of fear and uncertainty among dispensary operators and patients.
Fortunately, help could finally be on the way. Assemblyman Ammiano, longtime friend of the decrim community, has introduced a prescription that could help alleviate MMJ's growing pains. His proposed law, AB 473, would allow the state's Department of Alcohol Beverage Control (the "ABC") to create reasonable rules and regulations to more uniformly govern the cultivation and distribution of medical marijuana. The bill would impose uniform fees and taxes upon businesses engaged in the sale of marijuana. Proceeds derived from those fees would be deposited into a "Medical Marijuana Fund", which would then be used to administer and enforce the law. The ABC would be charged with ensuring the safety of cannibis provided to patients, as well as preventing harmful cultivation practices and the diversion of marijuana for non-medical uses.
Quintin Mecke, former spokesman to Assemblyman Ammiano, recently told the Huffington Post that the DEA was using the lack of statewide regulation as a justification to enforce a crackdown on local cannabis clubs. Said Mecke, "If we create regulations, we've removed every reasonable explanation on their part to justify the crackdown."
CA NORML and other patient groups have unanimously endorsed the proposed bill. Medical marijuana advocates hope that new regulations will ensure safe access to medical cannabis while helping to reduce or eliminate many of the negative effects that dispensaries have had on communities and preventing future hostile action from the DEA.
The bill is slowly winding its way through committee now. It cleared a major hurdle in April when the Committee on Public Safety voted to recommend its approval. The bill now goes back to the Committee on Appropriations for further amendments and analysis of the law's fiscal effects.
AB 473 has the potential to create a huge impact on CA MMJ law by ensuring public safety and reducing many of the harms currently associated with the medical marijuana industry. We can expect a long, arduous fight as this bill works its way through the legislature. Police unions have joined forces with the California District Attorneys Association to aggressively lobby against the proposed legislation. Of course, the law enforcement industry will always oppose any common sense approach to marijuana policy reform.
It's too soon to guess whether AB 473 will ever even make it to the floor of the Assembly for a vote. When (if) the bill ever makes its way out of committee, there remains the chance that amendments, riders, addenda and "tweeks" will render the legislation unrecognizable. That's what makes this whole process so exciting!
Stay tuned for updates as they become available. Thanks for reading.
Monday, April 15, 2013
Popular Myths Surround the Origins of "420 / 4:20 / 4/20"
I hear a lot of questions and myths around this time every year regarding the origins of "420". While this isn't exactly a legal question, it is a question that "OC's Premier Marijuana Defense Attorney" should be able to answer, so I did the research.
Whether expressed as a 3-digit number ("420"), a time ("4:20"), or a date (4/20), the number has become synonymous with marijuana. It is often used to identify head shops and marijuana dispensaries. Affixing one of these stickers to your rear bumper can also be a handy way to attract attention from police.
As the number gains popular recognition as a "code" for marijuana, myths regarding its origins have also spread like weeds (bad pun intended). I've taken a moment here to dispel a few of the most common and persistent 420 origin myths.
-420 is the Penal Code designation (or police radio code) for "smoking in progress": Not even close. Section 420 of the California Penal Code actually prohibits anyone from "preventing or obstructing entry upon or passage over public lands". Most marijuana crimes are defined by sections 11357, et seq. of the Health & Safety Code. According to my research, there aren't any states that use section 420 of their penal codes for anything remotely related to marijuana.
-4/20 is Hitler's Birthday: True, but completely unrelated to the date's popularity among hippies and stoners.
-4/20 is the anniversary of the Columbine shootings: Again, true. And again, completely unrelated to the date's significance. April 20 was a stoner holiday well before two latch-key kids went tragically mad and murdered their classmates.
According to Steven Hager, editor of High Times Magazine and consummate authority on marijuana culture, the code actually began with a small group of teenagers from San Rafael High School in the city of San Rafael, California. According to Mr. Hager's legend, the friends referred to themselves as "The Waldos" because they were known to hang out at a particular wall on campus. One day in the Fall of 1971, the Waldos devised a plan to scour the Point Reyes forest for an abandoned marijuana crop that they had heard about. They would meet at 4:20 pm near a campus statue of Louis Pasteur to begin the hunt. The time was chosen because all of the Waldos were athletes. They would meet after practice, but early enough to ensure ample daylight for the search. The plan even had a secret code name: "4:20 Louis". Somehow, this code was eventually shortened to simply "4:20" or "420". The Waldos never found the crop, but they did contribute to marijuana culture in way that none of them could have imagined.
One of the remaining Waldos, "Steve", explained the early use of their code to the Huffington Post: "I could say to one of my friends, I'd go, 420, and it was telepathic. He would know if I was saying, 'Hey, do you wanna go smoke some?' Or, 'Do you have any?' Or, 'Are you stoned right now?' It was kind of telepathic just from the way you said it. Our teachers didn't know what we were talking about. Our parents didn't know what we were talking about."
In the early '70s, the Grateful Dead were spending more of their time in the Marin hills and away from the Haight neighborhood of San Francisco. By chance, several of the Waldos developed close personal and business relationships with the band. The high school friends hung out backstage and attended rehearsals with Jerry, Phil, Pigpen, Mickey and Bob. Once the code caught on among deadheads, it quickly spread around the world.
By the early '90s, High Times used the number regularly in their publications. It soon gained worldwide recognition within the festival scene and around college campuses. Some time in the mid '90s, park rangers noticed that unusually large and exuberant groups of campers were filling campgrounds during the weekend of April 20. Rangers wrongly assumed that the crowds were somehow related to early Earth Day celebrations.
Today, the number is as recognizable as the Coca Cola logo. It is no longer an effective code word for high school students. Cops have figured it out. Even your parents know what it means. Maybe it's "high" time for some new lingo. Any suggestions?
Please be safe this weekend. Before you celebrate, designate. Most importantly, though, hold onto my number. (714) 449-3335. Our office has an excellent record in defending against all types of drug charges. If you or a loved one is accused of a crime involving drugs, you need a lawyer with expertise in drug defense. I understand the issues that typically arise in drug cases and how to use those issues to your advantage. We offer free consultations and affordable payment plans.
Thanks for reading.
Santa Ana Marijuana Lawyer
Friday, August 24, 2012
Excuse Me, I Didn't Order This Turd Stew: CA's Convoluted Medical Marijuana Laws Get Weirder
My loyal readers will recall a post that I wrote in January of this year, entitled "Turd Stew Clarity on the Way?". In it, I optimistically wondered aloud whether or not our court system would soon grace us with some clarity on California's medical marijuana laws and the myriad issues surrounding their implementation. So far, the answer has been a resounding "no".
It remains the position of this blog that marijuana prohibition causes more harm than the drug itself. The plant is safer than Tylenol, for christsakes. All logic aside, however, the War on Drugs continues. California's medical marijuana dispensaries have become the latest battleground in this war.
As discussed in prior posts, one major issue that cities and counties have grappled with is how to regulate and control the proliferation of storefront marijuana shops that have sprung up in residential communities, near schools and in concentrations thick enough to blight entire neighborhoods. Towns across California have tried a variety of strategies: arresting operators and accusing them of illegal drug sales, using municipal ordinances to ban dispensaries from all or parts of the city, using code enforcement actions to shut down offenders, and even requesting DEA assistance.
Long Beach had a unique approach to regulating the proliferation of dispensaries. It used a lottery system, whereby hopeful operators paid astronomical fees for the privilege of the application. 15 lucky winners of the lottery were granted licenses to operate storefront dispensaries in the city. A fellow named Pack who did not win a license (and was, therefore, barred from operating a dispensary within the city), sued Long Beach, claiming that their licensing system was illegal and was preempted by federal laws. Federal law flatly criminalizes any marijuana use or sale and trumps any inconsistent state or local laws. Since Long Beach's licensing system essentially granted permission for 15 operators to violate federal laws, the entire licensing system was found to be void by an appellate court.
Think about what that means: since marijuana is illegal federally, cities may not attempt to regulate the proliferation of storefront pot shops (what?). Pot-friendly cities may simply decide not to devote city resources, i.e. police, to shutting the clubs down, thereby creating a de facto local "legalization", or else they may ban clubs entirely, but they may not place restrictions on the clubs, and they definitely can't issue licenses.
As the Pack case slowly wound its way through the courts, the City of Long Beach replaced its licencing system with a flat prohibition on all storefront marijuana dispensaries. By the time the case finally reached the CA Supreme Court this week, the entire issue was moot because the law in question no longer exists. No sense in arguing about something that doesn't exist anymore. Case dismissed.
So where does this leave us? On first glace, you'd be tempted to say that the appellate decision stands and that cities may not attempt to regulate the proliferation of storefront pot shops (what I call "the all-or-nothing approach"). But, like most things in the law, it's more complicated than that. See, a legal case can only be cited to as a precedent if the case has been ordered "published". "Unpublished" cases have no value as precedent and cannot be cited to in future cases. The appellate decision in Pack was briefly published, but it automatically became unpublished by operation of law when the Supreme Court decided to hear it. After the SC rendered its decision to throw out the case entirely, it never specifically ordered that the appellate decision be re-published. That appellate decision, therefore, has exactly zero value as a precedent today and cannot be cited to.
...and so we're right back where we started, just looking down at this steaming bowl of turd stew that we didn't order.
Monday, November 21, 2011
How Does the Entrapment Defense Work?
Like Miranda Rights (below), entrapment seems to be one of those issues that is misunderstood more often than not. I think movies have given people a false understanding of how the defense actually applies. Here's my feeble attempt at bringing a little clarity to the subject.
Entrapment is a defense to criminal charges when police have essentially overcome your will and forced you to commit a crime that you wouldn't have otherwise committed, given the opportunity. A jury must decide whether or not they believe that you have been entrapped. Before a jury begins deliberating on your guilt or innocence, the judge will spend an hour or two reading instructions to the jurors in order to help guide their legal decision-making. The judge will explain the elements of the crime charged and the facts that the jury may take into consideration in making their findings. If entrapment is an issue, then the judge will read something like this:
"It is a defense to a criminal charge that the commission of the alleged criminal act was induced by the conduct of law enforcement agents or officers when the conduct would likely induce a normally law-abiding person to commit the crime.
To establish this defense, the defendant has the burden of proving by a preponderance of the evidence that the conduct of the law enforcement agents or officers would likely induce a normally law-abiding person to commit the crime.
In deciding whether or not this defense has been established, guidance will generally be found in the application of one or both of two principles. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. This conduct would include, for example, a guarantee that the act is not illegal or the crime will go undetected, an offer of exorbitant consideration, or any similar enticement.
Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the affect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the crime, the suspect's response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission." (CALJIC 4.60 et seq.)
We've all seen stings on TV (maybe even in person) whereby the cops pose as drug dealers, prostitutes or underage victims (i.e. To Catch a Predator) and then wait for subjects to take the bait. When cops engage in these kinds of busts, they're (supposed to be) careful ONLY to present an opportunity for their marks to commit crimes, and NOT to encourage otherwise law-abiding citizens to commit crimes that they wouldn't have committed anyway if left to their own devices.
Example 1: You're a drug addict, you approach an undercover cop at the park and you ask to buy heroin. The next thing you know, you're under arrest. You have not been entrapped because the police didn't force you to anything that you didn't already want to do.
Example 2: You're a girl scout and an undercover cop offers you some heroin. You tell him that you don't use drugs, but he badgers you, threatens you, and tells you that heroin is legal to possess. You finally give him $20 to leave you alone and you're arrested. You have a good argument for entrapment based on these facts because it appears that police induced a normally law-abiding person to commit a crime that she would not have otherwise committed.
Example 3: You're drinking at a house party and police come to the door. They tell you that your car is illegally parked and that it will be towed unless it is moved. You move the car as instructed and you're arrested for DUI. This is a gray area, but a jury would probably find that you have NOT been entrapped here. The police did not force you to drive the car, they merely informed you that it would be towed unless it were moved. You could have found a sober driver or else agreed to have the car towed.
A common myth that I've heard repeated on movies is the idea that undercover cops have to tell you that they're cops if you ask, otherwise their actions become entrapment. This is false. Think about how effective undercover operations would be if agents were required to tell subjects that they were cops. Don't expect an undercover cop to identify himself if asked.
The most famous case of entrapment involved John DeLorean (of time-traveling sports car fame). In 1982, Mr. DeLorean's auto business was in serious trouble. He was nearly broke and on the verge of financial ruin. A friend of his (acting as an FBI informant) proposed a deal whereby Mr. DeLorean would help smuggle a load of cocaine and launder the cash. After a series of threats against his family, Mr. DeLorean reluctantly agreed to participate in the plan. Of course, he was arrested and charged for several drug-related offenses. In 1984, a jury found him not guilty because he had been entrapped by the government. Agents had effectively overcome his will and forced him to break the law by threatening his family.
The moral of the story is that entrapment is a very difficult argument for a defendant to successfully make. When in doubt, don't break the law, but if you must, call us for a free attorney consultation. (714) 449 3335. Ask for John.
Thanks for reading.
Fullerton Criminal Defense Lawyer
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