Aug 10 2009

California has three initiatives filed to legalize marijuana

Posted by J. Craig Canada in Examiner.com, law, legalization
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(AP Photo/Richard Vogel)

Previous articles compared two marijuana legalization initiatives filed in California and discussed the California initiative process and the relationship of initiatives to laws passed by the state legislature.  One of these initiatives has been amended and a third filed.

The newest addition to California’s marijuana legalization initiatives is the Common Sense Act of 2010 by Common Sense For California.

This initiative, which was filed 4 Aug 09, repeals marijuana prohibition in California, gives the legislature a year to pass laws to regulate and tax marijuana, and calls for California members of Congress to work to remove cannabis from the Federal Schedule of Controlled Substances.

On the same day, 4 Aug 09, amendments to the Regulate, Control and Tax Act of 2010 (ROT 2010) were filed with the Attorney GeneralSection 2, B. Purposes. Item 2 now reads, "Regulate cannabis like we do alcohol; Allow adults to possess and consume small amounts of cannabis."  The phrase "21 years of age and older" has been removed.  However, this will probably have no impact as the phrase "21 years of age or older" still appears twice in the document and the phrase "21 years of age" appears seven times.

Also under Section 2., B. Purposes; Items 7 and 8 have the following appended, "except as permitted under Health and Safety Section 11362.5 and 11362.7 through 11362.9."  Item 7 prohibits the sales of cannabis in cities that do not enact a tax on it.   Item 8 authorizes strict control over the cultivation, distribution and sales in cities that do enact taxes on cannabis.  It also authorizes cities to limit how much can be bought and sold.

Appending the phrase, "except as permitted under Health and Safety Section 11362.5 and 11362.7 through 11362.9" to these items explicitly exempts California’s medical marijuana statutes, patients, and providers or caregivers from the provisions of ROT 2010.

While this phrase is not repeated in the subsequent Section 3., C. Intent, which explicitly lists the statutes to be affected and those not affected by ROT 2010, it removes much of the concern previously expressed about any potential impact this law could have on medical marijuana patients and/or the Compassionate Use Act of 1996.  Most notably, it exempts medical marijuana from the taxing requirements.  It is to the credit of Oaksterdam U and Richard Lee that this change was made in a timely manner.

However, §11300(c) which prohibits consumption in public and in the presence of children remains unchanged.  Current California law has no prohibition on medical consumption of marijuana in the presence of children and criminalizes the medical smoking of cannabis only where smoking cigarettes is prohibited.  While medical marijuana patients appear to be explicitly exempted from this prohibition on consumption in the presence of children and/or in public, it could prove problematic in practice.  Currently, "lowest priority" ordinances which prohibit recreational consumption in public are being used to harass medical patients.

A prohibition on consumption in public by medical patients will have the effect of making them housebound.  Many cannot easily go without medicating for the time it takes to visit a doctor, buy groceries, have dinner, or go to a movie.

Also, §11304(a) remains unchanged.  This section states that nothing in ROT 2010 shall "affect, amend, or limit any statute that … penalizes bringing cannabis to a school enrolling students in any grade kindergarten through 12, inclusive."  This could likewise prove problematic for children and teenagers who are medical marijuana patients, notwithstanding the exemption of current California marijuana statutes previously cited.

It should be noted that §11304(c) or ROT 2010 prohibits discrimination for use, consumption, sales, distribution, and cultivation of cannabis.

In short, the amendments to ROT 2010 amount to appending the phrase, "except as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9" to items 7 and 8 under Purposes.

Of the three initiatives to legalize marijuana filed with the Attorney General, ROT 2010 is the most likely to acquire the 433,971 valid signatures to qualify for the 2 Nov 10 ballot.  The proponents will have a difficult job differentiating their proposals in the minds of the public.  Signature validation could prove to be a nightmare.  Will most people who support marijuana legalization end up signing the same petition duplicate times through confusion and a desire to see all proposals on the ballot?

The Tax, Regulate and Control Cannabis Act of 2010 (THC 2010) is the most far-reaching of the three initiatives as it legalizes marijuana, grants retroactive amnesty to California marijuana prisoners, decriminalizes hemp, and explicitly protects medical marijuana patients including children.

Common Sense 2010 is the least far-reaching.  While, upon voter approval, it will lift the prohibition of marijuana, it leaves taxing and regulating up to the legislature and gives them one year to do it.

THC 2010 prohibits any community from banning sales of marijuana, while ROT 2010 explicitly provides for such bans.  THC 2010 levies a $50 per ounce tax on recreational marijuana, while ROT 2010 specifies no amount but encourages taxation and licensing "without limitation".

Of the three, only THC 2010 cannot be amended by the legislature without approval by the voters.  ROT 2010 explicitly allows amendment without approval by the people, and this could prove problematic once the pharmaceutical lobby gets to work on California elected officials.  While Common Sense 2010 repeals the prohibition of marijuana at the state level, it enacts no law but rather gives the state legislature a year to do so.

It now appears that none of the proposed initiatives to legalize marijuana in California can be used to nullify or amend current California medical marijuana law.

For more info: 
Initiative Measures – Office of The Attorney General, State of California
The Common Sense Act of 2010 –  California Attorney General | 4 Aug 09
The Regulate, Control, and Tax Cannabis Act of 2010 – California Attorney General | 4 Aug 09
The Tax, Regulate, and Control Cannabis Act of 2010 – California Attorney General | 15 Jul 09

Common Sense for California – The Common Sense Act of 2010
Tax and Regulate Cannabis – The Regulate, Control, and Tax Cannabis Act of 2010 (ROT 2010)
California Cannabis Initiative – The Tax, Regulate, and Control Cannabis Act of 2010 (THC 2010)

Marijuana legalization and California initiatives – examiner.com | 8 Aug 09
Comparing California cannabis/marijuana legalization initiatives – examiner.com | 31 Jul 09


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