Jun 04 2012

California Assembly Bill 2312 is a fraud and so is Americans For Safe Access

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3:52 – “All of these cities putting more and more taxes on patients, it’s outrageous.  As an industry, those of you that are asking for taxation, it’s crazy. It’s absolutely insane … because that taxation is falling on the backs of patients.”

– Steph Sherer of Americans for Safe Access, 29 Jan 2011


In order to understand what a fraud AB 2312 is, it’s important to remember a little history.

On 23 Feb 2009 Tom Ammiano introduced AB 390 in the California Assembly to legalize the cultivation and sales of marijuana in California.

Per the California State Board of Equalization, it would have raised $1.4 billion in revenue from a $50 per ounce tax on recreational sales.

The bill explicitly exempted medical from any tax:

…this fee shall not be imposed on marijuana used medicinally with a doctor’s recommendation as specified in Health and Safety Code Section 11362.5, which is known and cited as The Compassionate Use Act of 1996.

This ignited a media circus over all the money that could be made and was being made off medical marijuana, much of it focused on Colorado.

NORML rented an electric billboard in Times Square depicting marijuana as a money tree, and Richard Lee and Oaksterdamn U introduced Measure F in Oakland, the 1st sin tax on medical marijuana, which levied a sin tax of 1.8% (the same as alcohol) on top of sales tax.

And then Richard Lee, Dale Skye Clare Jones, and Oaksterdamn U announced Prop. 19, which authorized the government at every level to tax marijauna (including medical) without limitation, with the result that Rancho Cordova passed a $15,000 annual license fee for a 5′ x 5′ personal medical marijuana grow.

Meanwhile, NORML’s outreach coordinator Russ Belville (aided and abetted by Steve Elliott and Mikey Martin) lambasted medical marijuana patients as the “I gots mine” crowd while accusing anyone who didn’t support Prop. 19 of being a traitor to the movement.  Here is what he said regarding Rancho Cordova’s Measure H, in a comment to a CelebStoner article:

Yup, I remember the day vividly. I was working in Portland, Oregon, when the city leaders of Rancho Cordova, California, called me up and said, “Russ, can you help us? We’re trying to pass an ordinance to require a $10,000 license for a medical grow, but we’re deadlocked on the issue.” Tell ya what, I told them, raise that up to $15,000 and I will use my municipal authority as a NORML employee in another state to sign the new ordinance, which, of course, is legally binding over any authority of the city council, mayor and state legislature. Boy, I gotta say, it’s a lot of fun wielding such immense power over California medical marijuana laws from my home in Portland, even more so when I can be directly responsible for putting medical marijuana patients in a financial bind, because nothing thrills me more than hurting sick people. Thanks for helping me recall that fine day, Craig! Now, if you’ll excuse me, I need to go fetch some more moustache wax before I tie this helpless damsel up on the railroad tracks. Bwaa haa haa haa! (Damn it, if only my immense power to change California laws worked here in Oregon! I’d love for us to have some California dispensaries up here – even if they were taxed…)

Now, if Dale Skye Clare Jones, Richard Lee, and Oaksterdamn U had really been about legalizing marijuana they’d have pushed an initiative that was to the left of AB 390 rather than light years to the right of it, wouldn’t they?

In any case they, along with Russ Belville and NORML, blew any chance of the passage of AB 390 by the California legislature out of the water, while seriously dividing the activist community.   All in the name of ‘unity’, of course.

It’s interesting to note that when all their arguments for Prop. 19 and AB 2312 are debunked, they declare that at least Prop. 19 ignited a national debate.

No, it was Tom Ammiano and AB 390 that ignited the debate.  And not one of these so-called activists pointed out during the ensuing years-long media frenzy that Ammiano’s bill exempted medical patients from the tax.

Indeed, Allan St. Pierre of NORML had this to say about the passage of Measure F in Oakland:

The passage of this first-in-the-nation tax further legitimizes cannabis-based enterprises in Oakland and elsewhere.  These outlets are contributing to the health and welfare of their local communities, both socially and now economically. At a time when many municipalities are strapped for tax revenues and cutting public services it is likely that public officials in other cities will begin considering similar proposals.

And Dale Skye Clare Jones, “Chancellor” of Oaksterdamn U, traipsed up and down the state declaring “tomatoes are taxed”!  (Tomatoes are not taxed in California.  In California necessities – food, medicine – are exempt from sales tax.)

In the world I grew up in no one would have dreamed of proposing a tax on medicine for fear of being denounced and ridiculed as a blood-sucking vulture.

Which brings us up to the present and ASA’s mobilization of 300 dupes to lobby the legislature on behalf of AB 2312, in the name of ‘unity’, of course.

It appears the result of the Americans for Safe Access lobby at the capital was to double the sin tax a county can charge patients from 2.5% to 5% and to remove the requirement for a vote of the people in order to ban medical marijuana dispensaries in jurisdictions of over 50,000.

Currently, AB 2312 allows a sin tax of up to 7% (or 5%, the wording is unclear) by the city and county on medicine, on top of sales tax.

Since 2004 medical marijuana patients have been subject to sales tax due to a ruling of the California State Board of Equalization that medical marijuana did not meet the legal definition of a prescription medication and therefore was not exempt from sales tax.

This was scarcely if ever mentioned by our organizations during all the Prop. 19 brouhaha.

Ask yourself why.

In California, state sales tax is currently 7.25%, with the cities and counties authorized to levy an additional 2% transactions and use tax per California Revenue and Taxation Code § 7251, et seq., for a total of 9.25% sales tax.

AB 2312 authorizes the county to levy an additional 5% (proposed § 7294.6) and the city an additional 2% (proposed § 7295.6) transactions and use tax on medical marijuana, for a total of 16.25% sales tax.  On medicine. Yet, the legislative summary (not the bill itself) claims the bill authorizes “a combined rate not to exceed 5%” for the additional sin tax?

There are all sorts of things wrong with this sin tax on medicine.   It harms the poorest and the sickest most.  It de-legitimizes medical marijuana – prescription pharmaceuticals are not taxed, if it was real medicine they wouldn’t be taxing it.  It implies that medical marijuana patients are scofflaws, who do not contribute to society.  It sets a disgusting precedent begun by Richard Lee and the Oakland Gang of Four – speaking of which, Tax & Regulate hasn’t worked out so well for Richard Lee nor Steve DeAngelo nor Oaksterdamn U has it?

No matter how they try to obfuscate it, the fact is that this tax on medicine will mean (directly and/or indirectly) more government, more police, and more nuclear power.  And all these years I thought this movement was about less government, less police, and less nuclear power.

Meanwhile, the pharmaceutical companies’ safe access to the astronomical MediCare/MediCal subsidy will not be threatened by medical marijuana.  Those of us who dreamed that one day our medical insurance would pay for our medicine were fools.  No, instead we must legitimize ourselves and medical marijuana by paying taxes.  So declares NORML and the rest of our organizations.

Alabama Wet/Dry Counties
75 years after the repeal of prohibition

Worse, AB 2312 allows any city or county in the state (such as Los Angeles) to ban dispensaries with a simple vote of the city council or county board of supervisors:

SEC 11362.87 (d) A city or county with a population of at least 50,000 may prohibit the establishment of medical marijuana dispensaries within its jurisdiction, or limit the number of allowed medical marijuana dispensaries to a number below one per 50,000 residents, if an ordinance or regulation authorizing that restriction has been lawfully enacted by the city, county, or city and county…

(e) A city or county with a population of less than 50,000 residents may prohibit the establishment of a medical marijuana dispensary within its jurisdiction provided that the legislative body of a city or county make a written finding to the board supported by evidence adduced during at least one public hearing that medical marijuana is reasonably available to its residents by other means.

Seems to me that a law that allows cities and counties to ban dispensaries with a simple vote of the city council or county board is prohibition.

But I’m told by the media darlings of the movement that I just don’t understand the ‘big picture’.

Seems to me that the big picture is that it is illegal to have wet/dry cities or counties in California because the courts have determined it violates the equal protection clause of the California Constitution.  And these people and organizations who declare they want to regulate marijuana like wine can’t even regulate medical marijuana like wine, with over 80% popular support for medical marijuana.

What’s wrong with this picture?

The award for the most honest paragraph in the mainstream media regarding this abomination goes to the San Jose Mercury News:

The measure was modeled after a ballot initiative that medical marijuana advocates crafted last winter after the four federal prosecutors based in California launched a coordinated crackdown on dispensaries and growers they maintained were operating as fronts for illegal drug trafficking. Caught up in the renewed offensive were several suppliers who had been lauded by state and local officials for their strict compliance with the state’s 16-year-old medical marijuana law.

So, we’re going to prevent federal raids of dispensaries in ‘strict compliance with the state’s 16-year-old medical marijuana law’ by passing a new law?

The Lake County News explains it thusly:

“Today’s vote was significant because it represents a considerable shift that the Legislature is now willing to take responsibility for the effective regulation of medical cannabis in California, 15 years after voters passed Proposition 215,” said Ammiano.

He added, “With the continuing federal crackdown, we simply cannot afford to continue keeping our heads in the sand and pretend that everything is fine. AB 2312 is an opportunity for the Legislature to defend Proposition 215 by regulating and controlling an industry that has the support of over 80 percent of Californians.”

With 80% popular support, our organizations can’t come up with anything better than this?

What real activists think about AB 2312

A year and a half after declaring that asking for taxation of medicine is absolutely insane because it falls on the backs of the patients, Steph Sherer defends her advocacy of AB 2312 in the Huffington Post by beginning with this:

As a medical marijuana patient advocate, I see the world through the eyes of a patient.

Letitia Pepper posted this on FaceBook 23 May 2012:

Lanny Swerdlow has worked hard to legalize marijuana — but he’s also the man who worked tirelessly to get people to vote FOR Prop. 19, a Trojan Horse that would have seriously impaired people’s rights under Prop. 215, the BEST pro-cannabis, medical marijuana law in the country. Now, he’s trying to get people to support legislation, through Tom Ammiano, that would have similar negative effects. To the extent that Ammiano’s bill contains provisions that violate patients’ rights under Prop. 215, such provisions will be unconstitutional, but it will take a lawsuit to undo this problem.

Don’t be fooled: everything we need to protect people’s rights to sue cannabis we already have in Prop. 215. Yes, but people keep getting arrested! We need to do something! Yes, but that something isn’t a new law — it’s getting people to follow the existing law — which takes litigation in court, not getting new laws passed.

The Civil Rights Act is a great law – and people didn’t follow it for DECADES. Yet people in favor of civil rights didn’t run around trying to get new laws passed — they demonstrated and litigated and got murdered — but they didn’t spend millions trying to get a new civil rights law passed. Why? Because there was no money to be made off civil rights. If the government and industry can tax, control and regulate cannabis, they can make BILLIONS of dollars — off us. OFF US. Do NOT vote against your own financial interests — defend Prop. 215, which keeps legal cannabis “non-profit.”

Mike Boutin had this to say on his Cannabis Nation webcast of 10 Feb 2012:

5:20 – Mike Boutin, MMRCT “A crass attempt to monopolize the medical marijuana market in California, and beyond. It really is not patient or producer oriented.”

7:25 – “Just another way to throw a bunch of people under the bus.”

This past March, David Malmo-Levine published an article in Cannabis Culture where he interviewed Valerie Corral of WAMM regarding The Medical Marijuana Regulation, Control, and Taxation Act (MMRCT).  The MMRCT was a reincarnation of the failed Prop. 19, sponsored by the same people and the same money, and the predecessor of AB 2312.  the MMRCT never had a chance of getting on the ballot as an initiative due to a profound lack of support both within the medical patient community and without.

Malmo-Levine’s article is probably the most cogent description of the situation I’ve come across.  When discussing the MMRCT (along with another initiative vying for the ballot at the time) he says:

They both make the same fundamental errors, they both:

  • require everyone in the med pot industry – including drivers – to register, thus making it easy and cost effective for the Feds to – with a single subpoena – find out who everyone is and charge everyone,
  • make it very easy to set a limit of one dispensary per 50,000 people, thus creating a monopoly or cartel. In comparison, there is a limit of one wine retail outlet per 1,250 residents in big cities and one wine retail outlet per 2,500 residents in smaller towns.
  • create a med pot bureaucracy that is open to corruption instead of setting up transparent standards that make it easy for everyone to comply without having to know or kiss up to anyone, making corruption nearly impossible.
  • allow the licensing board to drag it’s heels for six months deciding whether or not to allow you to sell pot while you must pay rent on the location you’ve chosen to sell pot from – ensuring only the rich will be able to open up a retail outlet.

He goes on to say that he spoke over the phone with Valerie Corral about this and she noted that:

Over-regulating the med pot industry in Colorado has not stopped the Feds from raiding – and local governments from banning – med pot dispensaries there…

It’s the same story of rich protecting their interests. As multinational pharmaceutical mogul GW Pharmaceuticals, and others in the competitive corporate market prepare to assume control of the medical marijuana industry and its potential mult-billion dollar industry, the question arises; could we as the fundamental force behind this movement do something besides join in the struggle to become corporate idealist?

Did we completely miss our opportunity to create a unified force and not succumb to becoming the pharmaceutical industry?

Ordinary people, growers, collective participants, old school activists with honest standards can’t afford to be a part of this mega-dollar industry. But mostly it is the marginalized patient who suffers…

I don’t think it is as intentional as it is a fundamental flaw in the way they see their future roles. Some of these activist lawmakers actually think that they will become the new corporation. I just don’t believe that the corporate power wielders perceive a potential $12.5 billion industry as something that they care to share.

As usual, Corral errs on the side of forgiveness and generosity.  I do think it is intentional, deliberate, and contrived.

There is much more wrong with AB 2312 than mentioned above.

Looking at the big picture, instead of taking patients and providers off the battlefield it shamelessly and disgustingly exploits them.  It puts them in the middle of a never ending battle at every level of government, on every front: taxes, zoning, bans, et cetera ad nauseum.

And when there is a set-back, which this legislation facilitates by design, it is the patients and providers who will be blamed for “not following through”.

Talk about corruption?  Just wait till that 9-member king-maker committee is seated.

The fact is Prop. 215 contains the word “affordable”, something all these so-called leaders and organizations have studiously overlooked for well over a decade now, while declaring taxing medicine somehow magically ‘legitimizes’ it.

Sooner or later an honest judge will come along and declare that it is total nonsense to claim that taxing medicine and restricting production and distribution somehow make it affordable.  But in the meantime the medical marijuana industry, medical marijuana, and the marijuana legalization movement will be decimated.

And I, for one, do not believe this was any accident.

AB 2312 – California Legislative Information | 2 Jun 2012
Medical marijuana regulation bill passes Assembly – Lake County News | 1 Jun 2012
Cannabis commission gets California Assembly’s OK – San Francisco Chronicle | 1 Jun 2012
Assembly passes medical marijuana oversight bill – The San Jose Mercury News – 31 May 2012
Panel endorses ban on pot dispensaries – San Francisco Chronicle | 31 May 2012

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