Proposition 215 and SB 420:

The people of California voted for Proposition 215 in 1996. The terms of the Act were then added to the California Health and Safety Code (Section 11362.5).  It says:

Sec. (1) a-b The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

      (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

     (B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

      (C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

      (2) Nothing in this Act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.

      (c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any rights or privilege, for having recommended marijuana to a patient for medical purposes.

      (d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to the patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

      (e) For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person.
 

Things to note about the above statute.  The most important thing to note is the title.  The title is NOT the "Medical Marijuana Legalization Act", or the "Marijuana Patient's Rights Act" or the "Dispensary Marijuana Act."  The title is "The Compassionate Use Act."   The law is not about making marijuana legal or available to those who are not seriously ill.  Marijuana law in California is about compassion.   The thought being that compassion, not incarceration,  should govern law enforcement and government bodies when dealing with seriously ill people who use marijuana.   One who is involved or planning to be involved with marijuana would be well advised to keep this in mind.

Also notable is that it is a voter enacted law.  What this means is that under the California State Constitution, the State Legislature may not amend it.  The only way it can be changed is by a majority vote of the people of California.  It is also notable that the foregoing statute does not provide any express provisions for "collective" cultivation, nor does it provide any means for a patient to be identified by law enforcement as such.  This brings us to Senate Bill 420, which addresses the issues of collective cultivation and patient identification.

Senate Bill 420

The following are actual excerpts from the language of the bill as  it was presented to the California State Legislature:

§1      (b) It is the intent of the Legislature, therefore, to do all of the following:

(1) Clarify the scope of the application of the act [Prop. 215] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.

(3)  Enhance the access of patients and caregivers to medical marijuana through collective cooperative cultivation projects.

(d) (2) (e)  The Legislature further finds and declares that it enacts this act pursuant to the powers reserved to the State of California and its people under the Tenth Amendment to the United States Constitution.

Health and Safety Code Sec. 11362.5 further clarified the purpose of the "Compassionate Use Act."

(b) (1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

(2) (e) For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.

Health and Safety Code §11362.7, et. al.

H&S §11362.7, et. al., contain the actual statutory text that resulted from the passage of SB 420.

The following are excerpts from the statutes:

(d) "Primary Caregiver" means the individual, designated by a qualified patient or by a person with an identification card [an MMP card], who has consistently assumed responsibly for the housing, health, or safety of that patient or person...

(2) An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver.

§11362.71

(b) Every County Health Department...shall do all of the following:

(5) Issue identification cards developed by the department to approved applicants and designated primary caregivers.

(d)(3) An identification card that identifies a person authorized to engage in the medical use of marijuana and an identification card that identifies the person's designated primary caregiver, if any.  The two identification cards developed pursuant to this paragraph shall be easily distinguishable form each other.

(e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transporting, deliver, or cultivation of medical marijuana in an amount established...unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.

(f) It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5 [protection from prosecution].

11362.77

(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient.  In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.

11362.775

...persons with identification cards who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to criminal sanctions for [possession, transportation, cultivation, the sale, possession for sale, opening a place for the sale, leasing a building for sale, or creating a nuisance by maintaining a place for the sale of marijuana].

Important Case Law:

People v. Kelly (47 Cal. 4th 1008, 222 P. 3d 186)

California Supreme Court ruled that the 2003 Medical Marijuana Program Act’s quantity limits constitute an unconstitutional modification of voter-initiated Proposition 215 which did not include any such limits.  Under this decision, a qualified patient may assert, as a defense in court, that he or she possessed or cultivated an amount of marijuana “reasonably related to meet his or her current medical needs” even if such amount exceeds 8 ounces or 6 mature or 12 immature plants.  The court upheld, however, the immunity provisions of the 2003 Medical Marijuana Program Act, meaning, that qualified patients who possess a county-issued Medical Marijuana Program ID card may possess up 8 ounces of harvested, dried medical marijuana and up to 6 mature plants or 12 immature plants without having the burden of proof to demonstrate the reasonableness of such quantities.

County and City Ordinances:

Under alleged land use zoning authority, several California county and city ordinances limit the amount of marijuana that may be possessed in a structure or on land within city limits, the number of plants that may be grown, the locations where plants may be grown, and the locations where marijuana may be administered and distributed.  Several California Cities and Counties have enacted an outright ban against any "dispensary".  L.A. City, for example, defines a "collective" as a location where at least 4 patients collectively cultivate marijuana.  Thus, 4 family members or 4 roommates who are medical marijuana patients who grow one marijuana plant in a closet are subject to all the zoning regulations that a store front dispensary with thousands of patient and hundreds of plants is. And L.A.'s ordinance is considered mild in comparison to other municipal ordinances in other cities and counties.  It is obvious to me as well as almost anyone, except City Attorneys, that several counties and cities have stepped far outside their legal authority by enacting over-restrictive ordinances.  Most people agree that cities and counties should have some regulatory authority, but not unfettered or unlimited authority.  Several cases are currently on appeal to determine the scope and limits of a municipality's power to regulate medical marijuana.  For a synopsis of current ordinances and regulations by California region see ASA's web site: http://www.safeaccessnow.org/article.php?id=3165

Important thoughts re: SB 420:

It is called a Senate Bill because it was created by a California Senate committee.  Unlike Prop. 215, it was not voted into law by the populous, instead it was voted into law by the California legislature.   The reason this is important is because it means that SB 420 cannot change or undermine Prop. 215.  It can only provide means and details for the application and implementation of Prop. 215.  In so far as SB 420 changes or undermines Prop. 215, it violates the California Constitution.  For example, SB 420 limits the number of plants a patient may have to 6 mature and 12 immature, and limits the amount of dried buds a patient has in his possession to 8 ounces.  The good news is that the California Supreme Court has ruled this language unconstitutional, in so far as it prohibits one from having more than an amount of marijuana or marijuana plants that are reasonably necessary.  The bad news is now the law says that if one has more than 8 dried ounces or more plants than the 6/12 number, the number of plants he or she may have is limited to a "reasonable" number.  The problem with the word "reasonable" is that no one really knows what it means.  Which brings us back to the word "compassionate".  The real question to ask is are these plants being used for a reason that most people would consider compassionate.

Also notable is that one who has in her possession a valid Cal MMP card cannot be arrested for possession, cultivation or transportation of a reasonable amount of marijuana, unless there is reasonable cause to believe that the card is fraudulent or the person is violating other marijuana laws, such as distribution for non-medical use.  Although one may be concerned about letting their county and the State of California know about her status as a marijuana patient, the guarantee from arrest is huge.  The law does allow one to carry his doctor's recommendation instead of a Cal. MMP card, but he can still be arrested, although he cannot be prosecuted, but who wants to spend the night in jail? 

Also, if one intends to transport marijuana, since we do not know how much dried marijuana constitutes a reasonable or compassionate amount, the safest thing to do would be to not transport more than 8 ounces at one time while carrying a valid Cal MMP card.  In such event, one is guaranteed she will not be arrested. 

Also notable is that California law is not clear on what constitutes a "primary caregiver."  But if someone designated as a primary caregiver has a Cal MMP card, then they are as a matter of California law "a primary caregiver."  So, if you are going to form a collective association which is going to cultivate marijuana, it would be wise to require non-patient primary caregivers who want to join your collective to have a current and valid Cal MMP card.  Also note that one may be both a primary caregiver and a medical marijuana patient.  So, it might be a good idea for you to have both a Cal MMP card as a patient and a Cal  MMP card as a primary caregiver.  But do not go overboard.  You should only be the primary caregiver for a few patients who you give special services and attention to.  Also note that a one who is designated as a primary caregiver for more than one patient must reside in the same county as the patients. 

Most County Health Departments have a form on-line you can download from their website to apply to the MMP program.

Important thoughts about City and County Regulations and Ordinances:

Although a city or county regulation or ordinance may attempt to ban or restrict a collective association, cities and counties ordinarily do not get  involved unless there is first a complaint by a resident.  They are not like law enforcement; which actively looks for criminal activity.  Cities and counties are given the power by the California Constitution to regulate land use.  Although this is an awesome power, it is not without limits.  It is unlikely that cities and counties have the power to make collective association a crime, but this has not prevented them from trying.  I am not aware of any convictions that have resulted merely from violation of a medical marijuana zoning ordinance alone.  But, cities and counties are well known for conducting raids and surprise investigations of marijuana collectives with the help of local law enforcement. If criminal charges are brought, it is because other, statutory laws have been broken.  Otherwise, cities and counties usually seek a civil injunction if they believe their ordinances or regulations are being violated.  Also, because their power is limited to making ordinances relative to land use, it is unlikely that cities and counties have the power to prevent collective marijuana delivery services, and I am not aware of any city that has such a ban.  So, if your collective distributes marijuana to its members through a delivery service, you are far safer than you would be if you made distributions out of a building, or, as happened in one case I had, out of a "Marijuana Stand" in your front yard.

California Attorney General's Guidelines

The Attorney General confirms that a Cal MMP card protects a holder from arrest:

 "...because identification cards offer the holder protection from arrest, are issued only after verification of the cardholder’s status as a qualified patient or primary caregiver, and are immediately verifiable online..., they represent one of the best ways to ensure the security and non-diversion of marijuana grown for medical use".

"...this Office recommends that state and local law enforcement officers not arrest individuals or seize marijuana under federal law when the officer determines from the cats available that the cultivation, possession, or transportation is permitted under California's medical marijuana law."

(A.G. Guidelines, p. 4)

The Attorney General Guidelines also indicate that medical marijuana patients have a right to form collectives to cultivate marijuana:

"...the MMP also defines certain guidelines, sets possession guidelines for cardholders, and recognizes a qualified right to collective and cooperative cultivation of medical marijuana  (§§ 11362.7, 11362.77, 11362.775.)"

"Similarly, collectives and cooperatives may cultivate and transport marijuana in aggregate amounts tied to its membership numbers.  Any patient or primary caregiver exceeding individual possession guidelines should have supporting records readily available when:

a) Operating a location for cultivation;

b) Transporting the group’s medical marijuana; and

c) Operating a location for distribution to members of the collective or cooperative."

(A.G. Guidelines, p. 10)

The A.G. Guidelines also provide some helpful hints on what kinds of things might be considered by law enforcement when investigating a collective.

"2. Indicia of Unlawful Operation: When investigating collectives or cooperatives, law enforcement officers should be alert for signs of mass production or illegal sales, including (a) excessive amounts of marijuana, (b) excessive amounts of cash, (c) failure to follow local and state laws applicable to similar businesses, such as maintenance of any required licenses and payment of any required taxes, including sales taxes, (d) weapons, (e) illicit drugs, (f) purchases from, or sales to distribution to, non-members, or (g) distribution outside of California."

(A.G. Guidelines, p. 11)

Note that the above language doe NOT prohibit sales to members of the collective.  However, search warrants prepared by law enforcement often contain language indicating that marijuana is being sold at the place they want to search.  So, it makes sense to not exchange cash for marijuana anywhere large amounts of marijuana can be found, i.e. where you are growing marijuana. 

The A.G. Guidelines regarding marijuana sales:

The Guidelines do not actually say marijuana may be sold between  members, but they clearly recognize the legality of marijuana transactions between members based upon "fees":

"In February 2007, the California State Board of Equalization (BOE) issued a Special Notice confirming its policy of taxing medical marijuana transactions, as well as its requirement that businesses engaging in such transactions hold a Seller's Permit."

"...a collective should be an organization that merely facilitates the collaborative efforts of patient and caregiver members - including the allocation of costs and revenues...A collective should not purchase marijuana from or sell to non-members, instead, it should only provide a means for facilitating or coordinating transactions between members." (A.G. Guidelines, p. 8)

"Collectives Should Acquire, Possess, and Distribute Only Lawfully Cultivated Marijuana: ... Nothing allows marijuana to be purchased from outside the collective or cooperative for distribution to its members.  Instead, the cycle should be a closed circuit...with no purchase or sales to or from non-members...collectives and cooperatives should document each member's contribution of labor, resources, or money to the enterprise..."

"Permissible Reimbursements and Allocations: Marijuana grown at a collective or cooperative for medical purposes may be:

a) Provided free to qualified patients and primary caregivers who are members of the collective or cooperative;

b) Provided in exchange for services rendered to the entity;

c) Allocated based on fees that are reasonably calculated to cover overhead costs and operating expenses; or

d) Any combination of the above."

Interestingly the A.G. Guidelines not only allow the formation and operation of medical marijuana collectives, but  actually require them, or face the possibility of arrest and seizure:

"Enforcement Guidelines: Depending upon the facts and circumstances, deviations from the guidelines...may give rise to probably cause for arrest and seizure." (A.G. Guidelines, p. 10)

And according to Health and Safety Code Section 11362.81(d), the Attorney General is required to adopt:

"...guidelines to ensure the security and nondiversion of marijuana grown for medical use."

Conclusion re:  the Attorney General Guidelines:

Note that the Attorney General uses the terms "collective" and "cooperative" as nouns.  The actual statute, Health and Safety Code Section 11362.775 says "...collectively and cooperatively cultivate... " and thus uses these terms as adverbs.  The A.G.'s interpretation of the statute has really upset several City Attorneys who will tell you that the guidelines are not law, just "guidelines", and therefore are not binding upon them. 

The A.G. Guidelines, however, arguably are law.  Although City Attorneys strongly dispute this claim, the fact that the Attorney General is required by law to adopt guidelines, and the fact that one can be arrested and seized for not following those guidelines means that one really has no choice but to follow the guidelines if they are a medical marijuana patient.  That sounds like law to me. 

Federal Law:

Marijuana possession, cultivation, etc. is still very illegal under federal law. 

The Controlled Substances Act (21 U.S.C. § 801) has established cannabis as a Schedule I controlled substance (like LSD, heroine, meth, and ecstasy).

   Under the Act, marijuana, as a matter of law, has no currently accepted medical use.  It is a federal crime to manufacture, distribute, dispense or possess marijuana.

   Under Federal Sentencing guidelines, federal courts must impose a minimum prison sentence of 5 years for a conviction of possession of more than 100 kilos (220 pounds) or more than 100 plants of marijuana.  For a conviction of possession of more than 1,000 kilos (2,200 pounds) or 1,000 plants the mandatory sentence goes up to 10 years.  Furthermore, federal law requires that inmates serve at least 85% of their sentence. 

However, there still is some hope for medical marijuana patients:

Obama Administration policy:

During his campaign, President Barack Obama stated (several times) that he would cease the DEA's raids in California as President. On March 18, 2009, Attorney General Eric Holder announced "a shift in the enforcement of federal drug laws, saying the administration would effectively end the Bush administration’s frequent raids on distributors of medical marijuana."

Then, on October 19, 2009, A.G. Eric Holder issued a memo to his Deputy District Attorney, David W. Ogden, somewhat deviating from his March 2009 statement.  The following is a key excerpt from that memo:

The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. To be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department’s core enforcement priorities.

Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

• unlawful possession or unlawful use of firearms;
• violence;
• sales to minors;
• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
• amounts of marijuana inconsistent with purported compliance with state or local law;
• illegal possession or sale of other controlled substances; or
• ties to other criminal enterprises.

(To see the full memo published by the Department of Justice, click here.)

Conclusion: 

The Obama policies definitely help to significantly reduce the likelihood of arrest and prosecution under federal law and many would consider those policies to be a step in the right direction.  Raids, arrests and prosecutions by the federal government have substantially decreased.  If, however, you believe the Obama policies have made you completely safe from federal arrest and prosecution, think again, they have not.  As a practical matter, if you are going to grow or handle marijuana, you may want to seriously consider keeping your plants or product below the 100 plants, 100 kilos number.   The Justice Department seems to be true to its promise of "low priority" when it comes to what is considers a relatively low amount of marijuana, and is not prosecuting those cases, even though it has reserved the right to do so.

Collective Agreements and Cultivation:  It is ironic that the California Attorney General's Guidelines require marijuana patients to agree to associate and become members of an association or face "arrest and seizure".  By doing so, they may be committing a criminal conspiracy in violation of federal law.  A clever attorney who specializes in marijuana law may be able to use the Attorney General's Guidelines to argue that creating a collective is involuntary for a person designated as a medical marijuana patient under California law.  Such prosecution would cause such persons to be punished  merely for their status in violation of their right to privacy and the anti-discrimination laws.

Edibles and the FDA:

It may seem surprising to note that the Food and Drug Administration has the legal authority to regulate marijuana.  Yes, it is an agency under the federal government and therefore currently has as its policy that marijuana has no current acceptable medical use.  But this conclusion ignores the  reality that scores of thousands of people are using marijuana for medical purposes, and the FDA clearly has the authority to regulate marijuana in its various forms, including edibles.  I believe that the FDA's policy will change, if for no other reason than necessity. 

This is the FDA's legal authority:

FDA is the sole Federal agency that approves drug products as safe and effective for intended indications. The Federal Food, Drug, and Cosmetic (FD&C) Act requires that new drugs be shown to be safe and effective for their intended use before being marketed in this country. FDA's drug approval process requires well-controlled clinical trials that provide the necessary scientific data upon which FDA makes its approval and labeling decisions. If a drug product is to be marketed, disciplined, systematic, scientifically conducted trials are the best means to obtain data to ensure that drug is safe and effective when used as indicated. Efforts that seek to bypass the FDA drug approval process would not serve the interests of public health because they might expose patients to unsafe and ineffective drug products. FDA has not approved smoked marijuana for any condition or disease indication.

A growing number of states have passed voter referenda (or legislative actions) making smoked marijuana available for a variety of medical conditions upon a doctor's recommendation. These measures are inconsistent with efforts to ensure that medications undergo the rigorous scientific scrutiny of the FDA approval process and are proven safe and effective under the standards of the FD&C Act. Accordingly, FDA, as the federal agency responsible for reviewing the safety and efficacy of drugs, DEA as the federal agency charged with enforcing the CSA, and the Office of National Drug Control Policy, as the federal coordinator of drug control policy, do not support the use of smoked marijuana for medical purposes.

Final Conclusion: 

No matter how careful you are, no matter how meticulously you try to follow the law, you are still putting yourself at some risk if you engage in marijuana transactions. 

What does it all mean?  How does one balance all the competing forces of law?  If there is a connecting thread or consistent theme that runs through the law, all the way from the smallest town ordinance all the way up the United States Supreme Court decisions, it is one of appearances.  If a person or group of persons appears to be truly using and cultivating marijuana for a legitimate medical purpose, and not for illicit purposes or for partying, they are generally left alone.  If, however, it appears marijuana is in fact being sold to those who may be using it for illicit purposes, then the courts, law enforcement, and municipalities tend to turn a deaf ear to any claims that the marijuana is for a medical purpose or authorized by law.

*Although prepared by "Bob the Lawyer", no attorney client relationship is  intended or implied, and Bob the Lawyer may not even be licensed to practice in your jurisdiction.  Also, no representation is made that the information contained herein is accurate.   As a matter of fact, some of the information is probably wrong.   The laws pertaining to medical marijuana are rapidly changing and are constantly being interpreted by the courts.  If you plan to engage in marijuana transactions, you should hire your own lawyer.