California Cannabis Attorney

In recent decades, a number of states, beginning with California in 1996, have legalized cannabis for medicinal use.

There are presently 29 states and the District of Columbia that have laws legalizing marijuana for medicinal uses.

Begining in 2018 Marijuana has been legalized in California for recreational use under propotion 64. 

Below is a list of important California marijuana & medical marijuana laws as well as current situations where you may still be prosecuted under current cannabis laws.

The Compassionate Use Act

The California legislation that first legalized the use of marijuana for more general medicinal use is found under Health and Safety Code Section 11362.5, also known as the Compassionate Use Act of 1996. The act was promulgated in response to medical research demonstrating that cannabis is effective in relieving the effects of nausea and chronic pain for a variety of ailments.

According to the statute, physicians may recommend marijuana for any condition for which the drug can be of benefit including:

• Cancer
• AIDS
• Anorexia
• Chronic pain
• Spasticity
• Glaucoma
• Arthritis
• Migraines
• Seizures
• Multiple sclerosis

In essence, the law protects from prosecution under state law the following individuals and entities:

• Possession and cultivation of marijuana by individuals for whom cannabis has been recommended for medicinal purposes
• Possession and cultivation by primary caregivers– a caregiver is a person who has been designated by the individual to be responsible for that person’s health, housing or safety.
• Licensed physicians, osteopaths and physicians who have recommended marijuana for medicinal purpose
• Licensed cooperatives or collectives that cultivate, distribute and sell marijuana as not-for-profit organizations

SB420

With our help dispensary owners will have a better chance at understanding the laws that relate to medical marijuana and why they are legal in our state.

Proposition 215 was made into Health & Safety Code Section 11362.5. The law makes it legal for patients and their designated primary caregivers to possess and cultivate marijuana for personal medical use given the recommendation or approval of a California-licensed physician.

In 2004, the California legislature expanded this law with SB420, which became California Health & Safety Code Sections 11362.7-.83. This law allows patients to form medical cultivation “collectives” or “cooperatives”; and establishes a voluntary state ID card system run through county health departments.

SB 420 also establishes guidelines or limits as to how much patients can possess and cultivate. Legal patients who stay within the guidelines are supposed to be protected from arrest.

Prop D

Since the passage of the Compassionate Use Act of 1996, the state has seen a proliferation of dispensaries and collectives in the business of cultivating and selling marijuana for medicinal use. Many of these dispensaries and collectives were in violation of various Los Angeles municipal regulations. Some of these facilities cited ambiguities and lack of clarity in how these regulations were interpreted.

In response to these violations and the over 700 dispensaries that had sprouted in Los Angeles, Proposition D was passed in 2013 and effective in 2014 to limit the number of dispensaries that were in operation in Los Angeles before September 14, 2007. This left a total of 135 dispensaries that had been in business for 6 years from that date.

Issues Regarding Licensing & Federal Laws

Although these operations are immune from state prosecution, the city does not issue licenses to dispensaries. The state will be issuing licenses to cannabis dispensaries that have been given permits from local jurisdictions. Unless Los Angeles permits the granting of licenses, these dispensaries could be prosecuted under state law unless they become recreational dispensaries in 2018.

Dispensaries and their owners may also face federal prosecution since the possession, sale or distribution of marijuana is prohibited under the Controlled Substances Act. Past administrations and likely the current one have and may continue to not prioritize the prosecution of individuals and businesses engaged in cannabis cultivation, possession and sale that is legal under a state’s laws.

Further, under Proposition D collectives are not allowed to cultivate marijuana on the same grounds where the dispensary is located. If the dispensary has an off-site cultivation area, it cannot be located within 1000 feet of a school or 600 feet from a church or other area where children frequent such as a park. It also cannot share a common corner with a residential zone nor can be the plants or associated products be visible to pedestrians from the street.

Compliance Requirements For Prop D

A dispensary is in compliance with Proposition D if it meets the following:

• It had obtained from the city clerk by September 13, 2007, a business tax registration LO44 Retail Sales, a seller’s permit and a tobacco retailer’s license
• It had registered with the city clerk by November 13, 2007, with the city’s interim control ordinance
• It had notified the city clerk by February 18, 2011, its intention to register under the city’s temporary urgent ordinance
• It obtained an L050 business tax registration as a medical marijuana collective in 2011 or 2012 that has been renewed annually and has the identical account number
• It has been in continuous operation since its pre- ICO registration

Proposition 64

In November 2016, California voters passed Proposition 64, which legalized recreational use of marijuana for adults aged 21 and over in a private home or business licensed for on-site marijuana consumption. Other provisions include:

• Personal possession of no more than 28.5 grams of marijuana or 8 grams of concentrated cannabis
• No smoking in a motor vehicle or public place
• No possession on the grounds of a school, daycare center or youth center while children are present
• Permission to grow up to 6 plants of marijuana in a private home in a locked area that is not visible from a public space
• Requirement that a business obtain a state license to sell recreational marijuana and which may need a local license if required by that local government where the business is located
• That the business not sell its products within 600 feet of a school, daycare center or youth center
• That local governments may ban the sale of marijuana in their jurisdictions or reasonably regulate the personal growth, possession or use of marijuana allowed by Prop 64

Taxes On Cannabis

1. Cultivation tax of $9.25 per ounce for flowers and $2.75 per ounce for leaves–there are some exceptions for certain sales and cultivation
2. 2.15% tax on retail sales
3. Any additional tax levied by a local government

Denial Of Licenses

You may be denied a license to operate a dispensary if you have certain prior criminal convictions:

• Felony conviction for drug sales, manufacture, cultivation, transportation, or possession with intent to sell
• Felony conviction for a violent crime
• Felony conviction for a serious felony
• Felony conviction for fraud, embezzlement or other crime of deception
• Previous violation of an ordinance relating to medical marijuana dispensaries
• Had a local license to operate a medical marijuana dispensary that was revoked within 3 years of your application for a state license

Changes Made to Existing Marijuana Laws

There were a number of significant changes to existing marijuana laws by the passage of Proposition 64:

1. You may immediately legally possess up to one ounce (28.5 grams) or 8 grams of concentrated marijuana
2. You may immediately grow and possess up to 6 plants of marijuana so long as they are in a locked area and not visible from a public space
3. You may gift that amount to anyone in California who is at least 21 years of age
4. Criminal penalties for non-serious violations such as possession of more than 1 ounce of marijuana are reduced to misdemeanors
5. If you have a prior marijuana-related conviction, you can petition the court to either clear your record of the conviction or have it reduced to reflect the changes in Proposition 64
6. .Parents cannot lose parental or custody rights if based solely on their status as a medical marijuana patient
7. Possession of marijuana by minor is reduced from a misdemeanor to an infraction and requires the minor to take a drug rehabilitation class
8. Trafficking in more than one ounce of marijuana is reduced to a misdemeanor
9. If a medical marijuana patient, you may still possess and cultivate as much marijuana as you require for personal use so long as you have a doctor’s recommendation. Local laws can still restrict the amount of plants you may cultivate to the 6 that are permitted
10. You may be restricted by a rental lease in smoking marijuana on the premises but may do so outside so long as you are not visible to the public

Situations Where You Still May be Prosecuted under Marijuana Laws

You may still be prosecuted under the existing marijuana laws and when Proposition 64 goes into full effect in 2018 for a number of situations:

Possession

Possession of more than one ounce (28.5 grams) of marijuana or more than 8 grams of concentrated marijuana–this is a misdemeanor under HS 11357 with fines up to $500 and jail time up to 6 months.

Operating An Unlicensed Medical Marijuana Dispensary

It is a misdemeanor to sell cannabis without a license under HS 11359. It is a felony, however, if you have any of the following on your criminal record:

• Prior conviction of a serious violent felony such as homicide, sexually violent offenses, sex crimes with a minor under the age of 14
• You are a registered sex offender
• A prior conviction for gross vehicular manslaughter while intoxicated
• 2 prior convictions for HS 11360–sale or transportation of marijuana
• Possession with intent to sell or attempted sale to person under the age of 18

The penalty is incarceration for 2, 3 or 4 years.

Cultivation

Cultivating without a license or selling marijuana to an unlicensed dispensary under HS 11358 – these are misdemeanor offenses unless you have these convictions on your record:

• You are a registered sex offender
• A serious or violent felony
• At least 2 prior convictions for possessing more than 6 plants
• You violated certain environmental laws while cultivating marijuana

Under the federal Controlled Substances Act, the possession, sale or cultivation of marijuana is illegal. If you are prosecuted for cultivation of marijuana under federal law, you face the following:

If cultivating less than 50 plants, a sentence of up to 5 years in prison and a fine up to $25,000.

It is a misdemeanor to possess more than 6 plants of marijuana but is a felony if your criminal record reveals the following:

• You are a registered sex offender
• Have a conviction for a serious or violent felony
• Have at least 2 prior convictions for possessing more than 6 plants
• You violated certain environmental laws while cultivating marijuana

The penalty is 2, 3 or 4 years in jail.

Sale of Marijuana To A Minor

It is a felony under HS 11361 to sell or give away marijuana to a person under the age of 18. It is also a felony to use a minor to traffic or transport for sale any amount of cannabis.

The penalties vary based on the age of the minor:

• If the minor is under 14, you face 3, 5 or 7 years in state prison
• If the minor is between 14 and 17, the penalty is 3, 4 or 5 years in state prison

Any conviction under state or federal law exposes anyone who is not citizen to deportation under the Immigration and Nationality Act. A conviction for cultivation is a controlled substance offense that targets those convicted for deportation.

References

• Health and Safety Code Section 11362.5
• Proposition D
• Controlled Substances Act
• Proposition 64
• HS 11357
• HS 11359
• HS 11358
• HS 11361
• HS 11360
• Immigration and Nationality Act