Jul 16 2010

California’s Proposition 19 will supersede or amend its medical marijuana laws

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Proponents of California’s Regulate Control and Tax Cannabis 2010 Initiative (Prop. 19) claim it will have no effect on California’s medical marijuana laws, that it “explicitly upholds the rights of medical marijuana patients”.

The language of the initiative says otherwise.

Yesterday, Russ Belville stated in a comment to his blog in The Huffington Post that “Prop 19 does nothing to change Prop 215 or your access to your current dispensary.”  Belville is NORML’s Outreach Coordinator and Host of NORML Show Live.

Meanwhile, in an article that is causing quite a stir among proponents of ending marijuana prohibition, Dragonfly De La Luz lists 18 reasons “Pro-Pot Activists” oppose Prop. 19.

Regarding whether or not Prop. 19 will amend or supersede California’s medical marijuana laws she had this to say:

While amendments were made ostensibly to prevent the initiative from affecting current medical marijuana law, a careful reading of the initiative reveals that this is not, in fact, the case. Certain medical marijuana laws are exempt from the prohibitions the initiative would enact, while others are glaringly absent.

Cultivation is one such law that is noticeably non-exempt.[17] In spite of the fact that the tax cannabis Web site says otherwise, the only medical marijuana exemptions that the Regulate, Control and Tax Cannabis Initiative actually makes are with regard to possession, consumption and purchase limits, which only ensure that patients would still be allowed to buy medicine at dispensaries. The word “cultivate” is conspicuously absent. Whereas today a person with a doctor’s recommendation has the right to grow up to an unlimited number of plants, the initiative would drastically reduce that number to whatever can fit in a 5’x5’ footprint (around 3-6 plants—per property, not per person). This will force many patients to resort to buying instead of growing their own medicine, because of the inconvenience caused by producing multiple grows a year rather than growing a year’s supply of medicine at one time, as many patients currently do outdoors. And growing indoors—which typically requires special grow lights, an increase in hydro use, and a lot of time and attention—is a comparatively expensive endeavor.

The initiative would further impact medical marijuana patients by banning medicating in the privacy of their own homes if there are minors present, as well as in public (currently perfectly legal[18])—an invaluable liberty to those with painful diseases who would otherwise have to suffer until they got home to relieve their pain.

Finally, the medical marijuana laws that are exempted from this initiative apparently only apply to cities. For medical marijuana patients who live in an area that has county or local government jurisdiction, according to a strict reading of the initiative, medical marijuana laws are not exempt.[19]

The amendments she refers to were made after Comparing California cannabis/marijuana legalization initiatives was published 31 Jul 09 in examiner.com.  This article noted that the proponents of Proposition 19 had manged to get through 14 drafts without exempting medical marijuana patients from any of its provisions:  not the unlimited taxes & licensing fees, not the possession & cultivation limits, not the prohibition on smoking in public or in sight of anyone under 18.

The amendments consisted of adding the phrase “except as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9″ to the end of Items 7 & 8 under Purposes.

The initiative mentions medical marijuana three times and omits mentioning it once.

The Mentions

The three mentions are Items 6, 7, and 8 in Section 2, B. Purposes.

6. Provide easier, safer access for patients who need cannabis for medical purposes.

The courts will determine that this means Prop. 19 is intended to amend and supersede California’s medical marijuana laws; Proposition 215 (H&S 11362.5) and SB 420 (H&S 11362.7-H&S 11362.9).

7. 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, except as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9.

8. Ensure that if a city decides it does want to tax and regulate the buying and selling of cannabis (to and from adults only), that a strictly controlled legal system is implemented to oversee and regulate cultivation, distribution, and sales, and that the city will have control over how and how much cannabis can be bought and sold, except as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9.

The first thing to note about these sections is that they are specific to cities.  Nowhere does the word “county” appear.

In Item 7, “city” is specified 3 times, every way they know how:  “if a city”, “that city’s limits”, “the city’s citizens”.  The rule of thumb is if you say something three times you mean exactly what you said.

This item exempts medical marijuana patients only in cities, and only with regard to how much they may possess and consume.  It makes it legal to ban medical marijuana dispensaries, collectives, and delivery services.  Unless the city enacts a sin tax, any buying and selling will be illegal.

The Omission

Section C, Intents, has two items.

Item 1 is a list of the laws Prop. 19 is “intended to limit the application and enforcement of”.  The inclusion of the phrase “including but not limited to the following, whether now existing or adopted in the future” opens the door for the argument to be made that Prop. 19 may (and most likely will) be interpreted to “limit” the  “application and enforcement” of the now existing medical marijuana laws.

This interpretation is reinforced by Item 2 under this section, a list of state laws Prop. 19 “is not intended to affect the application or enforcement of”.

Note that Item 2 is not open-ended.  There is no “including but not limited to” modifier for this Item.

Conspicuously absent from either list are California’s medical marijuana laws:  Health & Safety Code Sections 11362.5 and 11362.7-11362.9.

These mentions and omissions occur in the ‘preamble’ of the initiative, titled Findings, Intent and Purposes.  Concerns have been expressed regarding how legally binding these sections are and that nowhere in the sections to be added to California’s legal code is there any mention of medical marijuana or any exemption for medical marijuana patients and providers.

Exploiting pain and suffering

Nowhere does the initiative exempt medical marijuana cultivators or distributors from the tax.

Proponents of Prop. 19 often argue that everything is taxed.  This is not true.  Illinois is the only state that taxes prescription pharmaceuticals, and that tax is 1%.

Proponents of Prop. 19 claim they want to tax and regulate marijuana like alcohol.  It costs $450 to license a pharmacy in California and between $340-$580 to license a retail alcohol establishment.  Long Beach claims 85 medical marijuana dispensaries and charges $14,742 for a license.  Oakland has a limit of 4 dispensaries and charges them $30,000 for a license.

Proponents of Prop. 19 argue that it is illegal to consume alcohol in sight of anyone under 21 or in public.  California is littered with sidewalk cafes and pizza parlors that serve beer, wine, and mixed drinks in public and in the sight of children.

To date the cities of Oakland (the home or Proposition 19), Sacramento (The State Capital), Long Beach, and Berkeley have announced proposals to tax medical marijuana in order to keep their medical marijuana dispensaries from being shut down should Proposition 19 pass.

The most liberal of these is Berkeley, where medical marijuana patients will pay 7.5% less tax than recreational users, and it will only cost them 2.5% more than the 9.75% in sales tax they’re already paying.

Sacramento is proposing a sin tax of between 5% and 10% for recreational users and 2% to 4% for the sick and dying.  “We’re trying to get ahead of the process,” said councilmember Sandy Sheedy, who proposed the ordinance.

Medical marijuana patients use considerably more than recreational users.  Irv Rosenfeld receives 11 ounces per month from the federal government.   Maine recently determined that it’s medical marijuana patients would use 5 ounces per month, on average.  The tax on medicine, besides being ethically inconsistent, falls most heavily on the sickest, who tend to be the poorest.

At $400 per ounce, a medical marijuana patient who needs 3 ounces a month will pay $138.60 tax per month in Oakland.

Meanwhile, no city or county in California has reversed itself on a ban or moratorium on medical marijuana dispensaries since Oakland (home of Prop. 19) passed Measure F, the first medical marijuana tax.

Meanwhile, several cases are working through the courts challenging medical marijuana bans, moratoriums, and regulations which are de facto bans, as discriminatory and in violation of California’s medical marijuana laws.  Passage of Prop 19 will remove any legal basis for these cases.

Taking the ‘medical’ out of ‘marijuana’


Dennis Peron on Tax & Regulate #1

Prop. 19 adds five sections to California’s Health & Safety Code, §§ 11300-11304.

§11300 is titled  Personal Regulation and Controls.  Item a) begins with the phrase “Notwithstanding any other provision of law”.

This section makes possession of more than an ounce or by anyone under 21 illegal.  It also limits non-licensed cultivation to 25 square feet per residence or parcel, not per person.

If the authors of Prop. 19 wanted to protect medical marijuana patients, why did they say “notwithstanding any other provision of law”?

§11301 is titled Commercial Regulations and Controls.  It begins with the phrase “Notwithstanding any other provision of state or local law”.  It prohibits sales to anyone under 21.  Nowhere in this section is there any exemption for medical marijuana patients, cultivators, or distributors.

In addition to allowing cities and counties to ban commercial cultivation and sales (including medical marijuana collectives and dispensaries) it states the following:

(g) prohibit and punish through civil fines or other remedies the possession, sale, possession for sale, cultivation, processing, or transportation of cannabis that was not obtained lawfully from a person pursuant to this section or section 11300;

This means that the taxes and fees paid by the licensed commercial cultivators and distributors will be used to eliminate the competition.  For example, Oakland (the home of Prop. 19) is in the process of licensing four cultivators to supply the approximately 6,000 pounds per year sold by the four licensed dispensaries.  Bay Citizen put it this way:

Growing marijuana can be lucrative, but the city’s proposed new rules would eliminate small-timers. It would cost $5,000 just to apply for a cultivation permit, and a regulatory fee of $211,000 for the lucky winners. If one has the cash, it’s a small price to pay for the right to produce a crop with an estimated retail value of $7 million. The fee pays for regulating cultivation in Oakland, which will include enforcement against the guys with grow lights in their garages and backyard sheds.

The New York times reports that the leading contender for one of these cultivation permits is Jeff Wilcox, a member of the Proposition 19 steering committee.  “Mr. Wilcox estimated that AgraMed would cost $20 million to develop.”

Reasonable Accommodation


Montel lights up Maine medical marijuana conference

Current California medical marijuana law does not prohibit smoking in public.  It is not currently illegal for medical marijuana patients to smoke in public or in sight of anyone under 18:

11362.79. Nothing in this article shall authorize a qualified patient or person with an identification card to engage in the smoking of medical marijuana under any of the following circumstances:

(a) In any place where smoking is prohibited by law.

(b) In or within 1,000 feet of the grounds of a school, recreation center, or

youth center, unless the medical use occurs within a residence.

(c) On a schoolbus.

(d) While in a motor vehicle that is being operated.

(e) While operating a boat.

While debating Keith Kimber on Time4Hemp Chris Conrad stated Prop. 19 would have to win by a wider margin than Prop. 215 in order to supersede it.  He reiterated this in an email that was passed around Facebook.

Even if it did conflict with or amend the medical marijuana laws, which it repeatedly does not do, Prop 19 would still have to pass by more than 56% to have any effect on Prop 215, which is highly unlikely.

Conrad is in error.  The California Initiative Guide states the following:

If the provisions of two or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail (Cal. Const., art. II, Section 10(b)).

This is not a case of two or more measures in the same election.

For more info:
Why Pro-Pot Stoners Oppose The 2010 Tax Cannabis Initiative – Dragonfly De La Luz | 10 Jul 2010
War breaks out within the marijuana legalization movement – examiner.com | 26 Sep 09

Cities that have proposals to tax medical marijuana:
Legalized marijuana is a profitable venture, report says – The Contra Costa Times | 24 May 10
Huge, Legal Cannabis Farm Study Surprises Industry, Officials – East Bay Express | 25 May 10
The Legal but Largely Unregulated World of Pot Merchants – The New York Times | 5 Jun 10
Oakland City Council Considers New Cannabis Rules – The Bay Citizen | 5 Jul 10
Taxing marijuana will face legal hurdles – The Press-Telegram | 7 Jul 10
Oakland to Force Small-Time Marijuana Growers Out of Business – Stuff Stoners Like | 12 Jul 10
Medical marijuana:  factory produced or home grown – OaklandSeen | 13 Jul 10
Oakland considers limiting and licensing marijuana growers – SF Bay Guardian | 13 Jul 10
Oakland pot expansion a step closer – The Oakland Tribune | 14 Jul 10
Let the Marijuana Money Grab Begin – NBC Bay Area | 14 Jul 10
Sacramento ballot measure would allow pot tax – The Sacramento Bee | 15 Jul 10
The Latest Fiscal Buzz?  Medical Marijuana – Bloomberg | 15 Jul 10

Lawsuits that will have no legal basis under Prop. 19:
Pot growers file class action lawsuit against Tehama County – Colusa Sun-Herald | 8 Jun 10
Group challenges Tehama pot law – The Record Searchlight | 10 Jun 10
Medical Marijuana Dispensary Hails Court Ruling as Victory – Orange County Weekly | 5 Jul 10
2 Lake Forest Dispensaries Reopen – Orange County Weekly | 9 Jul 10
Blind woman’s medical pot suit thrown out – Press Telegram | 14 Jul 10
Upland medical marijuana cases may hinge on Anaheim case – Contra Costa Times | 15 Jul 10

Debates regarding Prop. 19 on Time4Hemp
Pro: Jodie Emery, Con: Bruce Caine – 25 Jun 10
Pro: Lynette Shaw, Con: Dennis Peron – 2 Jul 10
Pro: Chris Conrad, Con: Keith Kimber – 9 Jul 10
Pro: Paul Stanford, Con: J. Craig Canada – 12 Jul 10


6 Responses to “California’s Proposition 19 will supersede or amend its medical marijuana laws”

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