Jul 31 2009

Comparing California cannabis/marijuana legalization initiatives

Posted by J. Craig Canada in Examiner.com, law, legalization, tax
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Oaksterdam U

To date there are two initiatives filed in California that will legalize marijuana.  There are marked differences between them.

The first was filed 15 Jul 09 by California Cannabis Initiative 2010.  The name of their initiative is “The Tax, Regulate and Control Cannabis Act of 2010”.  To avoid confusion and for brevity this initiative will be referred to as “THC 2010” henceforth.

The second, titled the “Regulate, Control and Tax Cannabis Act of 2010” was filed 28 Jul 09 by Tax and Regulate Cannabis and Oaksterdamn U.  It will be referred to henceforth as “ROT 2010”.

The first thing to notice about these two initiatives is the similarity of the names:  one is “Tax, Regulate, and Control Cannabis”, the other is “Regulate, Control, and Tax Cannabis”.  However, they are vastly different measures.

In addition to the initiatives, Tom Ammiano has also introduced a bill in the legislature, AB 390, The Marijuana Control, Regulation, and Education Act.

THC 2010 not ROT 2010

THC 2010 is the far superior initiative.  Firstly, it retroactively “by operation of law expunges anyone convicted of a cannabis offense.”  It cleans the slate.  ROT 2010 offers no amnesty to anyone.

THC 2010 decriminalizes hemp production and sales, ROT 2010 does not.

THC 2010 prohibits discrimination in healthcare, education, employment, retirement, or insurance. Housing, of primary concern to medical patients, particularly those subsisting on Social Security Disability, is not specified.  However, in stark contrast to Oaksterdamn U’s ROT 2010 which uses the phrase “without limitation” with regard to taxing, THC 2010 uses the phrase “not limited to” with regard to prohibiting discrimination, so prohibition of discrimination in housing is implied in THC 2010.  ROT 2010 has no provision prohibiting discrimination because of marijuana.

There is no better way to highlight the conceptual differences between THC 2010 and ROT 2010 than to examine the context in which the phrase “without limitation” or its equivalent “with no limit” is used.

THC 2010 – Section 11300, Laws Permitting Cannabis Activities by Adults Aged 21 and Over

(b) This Act hereby repeals all state laws that prohibit cannabis possession, sales, transportation, production, processing, cultivation, and removes cannabis from any other statutes pertaining to the regulation of controlled substances, whether  now existing or enacted in the future, including but not limited to the following: …

(f) The Act prohibits any person from being denied any right or privilege for conduct in   accordance with this article.  No person shall be discriminated against, regarding but not limited to, healthcare, education, employment, retirement, and insurance for conduct permitted in this Act.

ROT 2010 – Section 11302: Imposition and Collection of Taxes and Fees

(a) Any ordinance, regulation or other act adopted pursuant to section 11301 may include imposition of appropriate general, special or excise, transfer or transaction taxes, benefit assessments, or fees, on any activity authorized pursuant to such enactment, in order to permit the local government to raise revenue, or to recoup any direct or indirect costs associated with the authorized activity, or the permitting or licensing scheme, including without limitation: administration; applications and issuance of licenses or permits; inspection of licensed premises and other enforcement of ordinances adopted under section 11301, including enforcement against unauthorized activities.

THC 2010, in Section 11301(a), not only authorizes the state and local government to allow commercial cultivation, production, processing, distribution, and sales but on-premises smoking and other use.  And while it allows regulation “not limited to” environmental, accessibility, and zoning ordinances, it prohibits banning any business or activity “allowed by this act”.  This is important because many cities and counties are using zoning restrictions to de facto ban dispensaries.

While ROT 2010 also authorizes sales and consumption on premises, it prohibits sales in cities that do not enact a local tax on marijuana.

Section 1. B. Purposes, item 7 of The Regulate, Control and Tax Cannabis Act (ROT 2010) states:

Ensure that if a city decides not to tax and regulate the sale of cannabis, that buying and selling cannabis within that city’s limits remain illegal, but that the city’s citizens still have the right to possess and consume small amounts.

It appears they believe either medicine should be taxed or that marijuana is not medicine.

THC 2010, on the other hand, specifically exempts cannabis that is not commercially grown from tax as well as medical users.  Also, while personal use is exempt from the tax and regulation, no amount or limit is set on the quantity one may have for personal use.  Commercial sales would be taxed at $50 per ounce.

ROT 2010 limits the amount, statewide, that may be possessed for “personal consumption” to an ounce and requires an ordinance or legislation to lift this limit.

Since there is no exemption in ROT 2010 for medical patients anywhere for anything, this will make criminals of many patients, particularly those who grow their year’s supply in one crop.  Perhaps the intent was to force patients to purchase their medicine when they would normally grow their own?

Quite frankly, ROT 2010 is a byzantine maze, and that in itself is reason enough to oppose it.  THC 2010, on the other hand, is short, sweet, and clear as a bell.

It appears that ROT 2010 could be used to force the closure of existing dispensaries and collectives in those communities that do not enact local taxes on marijuana.  Conversely, it could force communities to tax medical marijuana in order to keep existing dispensaries and collectives when they would not otherwise do so because medicine should not be taxed.

ROT 2010 prohibits consumption in public or in the presence of minors.  Currently, medical consumption of cannabis in public is not prohibited.  Instead, H&S 11362.79 prohibits smoking cannabis where smoking is prohibited, implying it is legal where smoking is allowed.  The prohibition against medicating in front of children will be particularly onerous for medical marijuana patients.  Will medical marijuana patients be forced to choose between their medicine and their children?

THC 2010 implicitly decriminalizes smoking or consumption in public when it prohibits it within 500 feet of a school (except a college or university) or youth center.

Most troubling about ROT 2010, is Section 2, C – Intent.  Item 1 in this section lists the statutes ROT 2010 will “limit the application” of with regard to cannabis.  In this instance “limit” appears to mean “exempt” or “exclude” from existing state drug laws.  Item 2 is a list of statutes not affected by the initiative.

Notably absent from the statutes not affected by the initiative are Health & Safety code 11362.5 – The Compassionate Use Act of 1996 or Proposition 215, and Health & Safety codes 11362.7 – 11362.83 or SB 420. These are California’s medical marijuana statutes.

Thus, not only does this initiative fail to exempt medical marijuana patients from any of its provisions, but by explicitly listing statutes it does not affect, and omitting the medical marijuana statutes from this list, it implies that it does affect them, replacing or superseding them.

ROT 2010 also prohibits the sales to minors and possession by minors.  Since there is no exemption anywhere in ROT 2010 for medical patients, this will make criminals of all the medical marijuana patients in California under 21.

The first item in THC 2010 specifically exempts medical use by minors from its provisions.

Section 11304 (a) of ROT 2010 states:  “This Act shall not be construed to affect, limit or amend any statute that … that penalizes bringing cannabis to a school enrolling pupils in any grade from kindergarten through 12, inclusive.”  Note here how specific it is – just those statutes that “penalize” bringing cannabis to school are not affected by The Act.  Those that would allow it, the medical marijuana statutes which protect the right of patients to have and use marijuana as medicine, are explicitly excluded from what the act “shall not” affect.

While THC 2010 would prevent minors who are medical marijuana patients (or anyone else) from smoking marijuana within 500 feet of a school, it does not prohibit possession or consumption by means other than smoking.  Thus, underage marijuana patients would not be prevented from taking their medicine while attending school under THC 2010.

ROT 2010 specifically authorizes amendment by the legislature.

In summary THC 2010 – The Tax, Regulate, and Control Cannabis Act of 2010 gives amnesty for marijuana prisoners in California, decriminalizes hemp, legalizes marijuana, and exempts medical marijuana patients from having to pay tax on medicine.  It protects children who are medical marijuana patients.  It prohibits discrimination based on marijuana use.  It is short, sweet, and clear as a bell.

ROT 2010 – The Regulate, Control, and Tax Cannabis Act of 2010 is a treacherous byzantine maze of obfuscation.  Prohibiting discrimination never occurred to the authors.  Neither did protecting medical marijuana patients.  They thought about decriminalizing hemp, but didn’t do it.  The stated purpose is to force the taxation of cannabis, medicine or not, “without limitation” and prohibit sales in cities and counties that have the moral cojones not to tax medicine.  It penalizes possession of more than one ounce for personal use and requires cities and counties to enact ordinances to raise the limits.  It could be used to prosecute medical patients having more than one ounce and to prevent the medicinal use of marijuana by children.  It increases some penalties for sales to anyone under 21.  It is a Trojan Horse.  It is the new improved Marijuana Tax Act of 1937.

For more info:
The Tax, Regulate and Control Cannabis Act of 2010 (THC 2010)
California Cannabis Initiative / Rogoway, Figueroa, Clark | 15 Jul 09

The Regulate, Control and Tax Cannabis Act of 2010 (ROT 2010)
Tax Cannabis 2010 / Oaksterdamn U, Richard Lee | 28 Jul 09

Oaksterdamn U wants to tax marijuana without limit – examiner.com | 29 Jul 09
Green Cross issues press release condemning Oakland marijuana tax – examiner.com | 26 Jul 09
Selling out the medical marijuana movement? – examiner.com | 24 Jul 09
Tax Prozac not medical marijuana – examiner.com | 20 Jul 09
Medical marijuana and pizza – examiner.com | 19 Jul 09
Medical marijuana and artist grants – examiner.com | 8 Jul 09


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