Dec 21 2013

Notes on Cannabis Policy Reform Act 2014

Posted by J. Craig Canada in business, law, legalization

On Thursday, December 19th, Ed Rosenthal announced on Facebook the filing of his Cannabis Policy Reform Act.  This was just over a week after a Field Poll announced on December 10th that a greater percentage of California voters (56%) would vote for the California Cannabis Hemp Initiative than supported legalizing marijuana (55%).

My initial reaction bordered on outrage:

You people whine and bleat about “unity”, but all you do is divide, divide, divide. You said you weren’t going to run an initiative this year, until you saw the Jack Herer initiative had a good chance, so then you come along and decide you and your deep pockets will blow his initiative out of the water.

If you were really about legalization you would be helping to get CCHI 2014 on the ballot rather than competing with it. Asshole.

It appears I wasn’t alone.  Pebbles Trippet summed it all up nicely:

Each one undercutting the others means none of them will get anywhere.

DPA’s 4 plant version (now 6) is designed to undercut CCHI’s 99 plants and the Hodges/Lee open source document. And now the 4th initiative submitted by Rosenthal is designed to undercut DPA’s miniscule quantity limits of 1 oz bud, 1/8 oz concentrate and 6 plants. There was also a 5th option that never made it past the draft stage but was also designed to undercut the others.

What’s wrong with this picture? If this isn’t a demoralizing back-stabbing self-destructive mess, I don’t know what is. It is a pretend parade with an alleged 2014 ballot destination, but is actually designed to sabotage, spin wheels, stall & delay the process, as the clock ticks, with 2016 the actual de facto unspoken goal.

In practice, none of them will gather the needed signatures, no matter how good the wording may be.

This process has no heart, no principles, no collective input, no spirit of the common good. Each part is pulling its own weight, has its own purpose or cross-purpose, with no connection to the broader community. It is a lot of smoke & mirrors signifying worse than nothing.

This “movement” is not leading anyone anywhere. These latest drafts are run by very few people for input before filing.

The marijuana majority is leading the main parade, counting on us the folks in the trenches to come thru, while we’re still off on a side trip arguing & undermining each other til we have nothing left to give the majority.

Every poll tells us the world is ready, the voters will approve anything reasonable.

The 2010 ballot initiative put the voters on the map as an agent for change, rather than the Legislators who are not trustworthy agents of change since they make the laws we all suffer by. This broken winged bird will not fly. We need to restore a sense of community in sync with the nature of the plant & the process it uses to hold everything together. Let the endogenous cannabinoid signaling system be our model — all vital parts of the whole in sync, sharing drafts, dreams & a cooperative future. Dreams are early reality.

Following are the notes I made on my first reading.

SECTION 3: Purposes and Intents

The People of the State of California hereby declare that the intents and purposes of this Act are:

(A) To remove all existing civil and criminal penalties for adults 21 years of age or older who cultivate, possess, transport, sell, or use cannabis subject to the provisions of this act, without impacting existing laws proscribing dangerous activities while under the influence of cannabis, or certain conduct that exposes children to cannabis.

And that “certain conduct” is?

(H) To prevent drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use.

A per se DUI?

(K) To raise tax revenues for California for education.

How about indigent medical marijuana patients?

 11421. ..It is lawful and not a violation of California law for a person 21 years of age or older to smoke or consume cannabis in one’s home, in any privately owned property, or in public in a manner that does not endanger others.

I like this part, though the phrase “does not endanger others” makes me nervous.  I fear it will be interpreted to mean any exposure to the smoke.

It is lawful for adults 21 years of age or older to cultivate cannabis. Cannabis may be cultivated on privately owned property with the consent of owner, resident, or tenant of such property.

A strict, literal interpretation would mean that only one of those need consent – i.e. if the tenant or resident consents it is not necessary for the owner to consent.  Section 11427(a) makes it clear that the consent of the “owner” is required, not just the resident or tenant.

The commercial cultivation, processing, transportation, distribution, and sale of cannabis shall not be lawful until 12 months from the passage of the Act.

This puts medical under the ABC, so there is no doubt this initiative applies to medical and will supercede Prop. 215. Are they gonna trust the government to interpolate that this doesn’t make all the medical grows and distributors illegal during the interim?

11422 (f) The California Department of Public Health shall be designated by the ABC Commissioner to oversee the cultivation and distribution of medical cannabis pursuant to Section 11425. These agencies shall work together to regulate the cultivation and distribution of medical cannabis and the issuance and enforcement of the Class M license pursuant to Business and Professions Code Section 420.1(m).

There is no exemption from the tax for medical, and no provision for indigent medical marijuana patients.

11423(a). The ABC shall work with the California Board of Equalization and any other executive and legislative entities to develop a fee and taxation structure that can be implemented for cannabis in a manner similar to that of alcohol subject to the provisions of this Act.

Here they protect medical.

11425. This Act shall not adversely affect the individual and group rights and protections afforded by California Health and Safety Code Sections 11362.5 through 11362.83.

This makes smoking in public illegal:  “on a public street or sidewalk”.  I don’t see any exemption for medical patients.

 (c) It is an infraction to consume cannabis while operating a vehicle, boat, aircraft, upon a school or public bus, on school grounds other than at a college or university, in a children’s playground, on a public street or sidewalk, in any manner that endangers others.

Prohibits per se DUIs.

(d) Driving while impaired by cannabis shall be punished by Vehicle Code Sections 23103, 23152(a), and 23153.  Impairment occurs when a person’s mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. This is the sole standard to be used in determining driving under the influence allegations.

It appears to prohibit arbitrary limits.  This is a good thing.

420.1. …  The ABC shall issue licenses to all qualifying applicants.

(f) A “Class F” license authorizes the sale of cannabis for consumption on the premises where sold.  … The number of Class F licenses issued may be capped by the ABC pursuant to population density in a manner identical to similar caps as related to alcohol.

It mandates clubs, good.

On the negative side, it sets no limit on the cost of a license.

This does not exempt medical from sales tax.

34004. The Cannabis Tax may be imposed on all classes of license other than a Class I or Class M license.

34011(a) … The businesses from each sector shall pay the tax at the rate of six percent (6%) of gross receipts from sales of THC containing products whether produce or processed products.

It defines 3 levels of commerce:  1) cultivation and manicuring, 2) wholesale, and 3) retail.  This is a far better division of the industry than that of Washington state.

It specifies that purchases from farmers would only be taxed at 12% and defines “farmer”.

Direct sales by farmers to the public will not be subject to a wholesale tax, but shall be subject only to the retail tax.

I think that is a reasonable level for recreational.  The good news is that the amount of the percentage is hardcoded into law.

(d) Cities or Counties shall be allowed to impose up to an additional five percent (5%) sales tax on retail sales of non-medicinal THC marijuana products. This tax will be configured with the regular sales tax. Patients requiring cannabis for the treatment of serious debilitating illnesses shall be exempt from all retail taxes on cannabis upon the approval of their primary care physician. The State Department of Health will oversee and issue identification for these patients.

So now we’re talking about 30% tax.  The total tax that can be charged will be 18% + 5% + sales tax.  The city and county can not each add 5%, rather that is the total amount they may charge.

The good news is that it limits the taxes to those specified in the initiative.  I have yet to see any exemption for medical from Sales Tax.

When it comes to distributing the proceeds of marijuana taxes and fees, there is nothing for indigent medical patients.

The biggest difference I see is that Herer’s initiative releases the marijuana prisoners and it limits how much can be charged for a license.  While this initiative appears to prohibit any arbitrary limit on the number of licenses issued, it does not limit how much may be charged for a license and thereby allows the government to set de facto arbitrary limits on the number of licenses.

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