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Medical Marijuana in California: Can They or Can't They?

During a recent bout of time-wasting hypothetical pondering I asked myself, "How do medical marijuana dispensaries get their pot?" Do they grow it in the parking lot? Are they allowed to have a green house? Are they allowed to buy it from a drug dealer? Turns out California's medical marijuana scheme has more (pot)holes than a New York City street in January.

In 1996, California voters approved Proposition 215, also known as the Compassionate Use Act. The Act allows patients (and their caregivers) with a valid prescription to possess and cultivate pot for personal medical use. Opponents of the proposition argued that the language was overly vague, allowing virtually unlimited amounts to be grown anywhere, effectively legalizing marijuana in California. In 2003, the law was expanded to allow for collective and cooperative distribution.

As marijuana is illegal in the United States, California's law is in direct conflict with federal drug regulations. After the law was passed, federal law enforcement officials did not hesitate in seeking out those who violated US drug laws, raiding pot clubs, prosecuting growers, and punishing doctors who prescribed pot to their patients. Only in early 2009 did the federal government declare a moratorium on medical marijuana prosecutions due, in large part, to a promise made by Obama during the 2008 Presidential campaign.

Under California Health and Safety Code, section 11362.775, patients and caregivers who associate within the state in order to collectively or cooperatively cultivate marijuana for medical purposes shall not be subject to state criminal sanctions solely on the basis of that fact. The language includes protection from being charged with engaging in illegal sales. Proponents of medical marijuana argue that this allows pot to be sold by collectives. To prosecutors, it means that collectives can't be charged with illegal sales simply for growing it.

There is presently no law which provides for a state-wide standard for the cultivation and distribution of marijuana. Instead, legislators have left it up to local jurisdictions to decide how to implement the law. Jurisdictions vary widely on what is allowed. What is not allowed, however, is growing pot for recreational use. Drug traffickers often attempt to use the medical marijuana law to avoid prosecution, declaring themselves "care givers" even when they do not have a viable claim.

The current debate focuses on not who can supply the pot, but rather who can buy it and how. The problems seem to stem from poorly-crafted language in the medical marijuana legislation that has business owners, customers, and law enforcement officials scratching their heads. The 2003 California medical marijuana law is not clear with regard to what collectives are (the dispensaries) or what they are authorized to do under the law. There is ambiguous wording in the legislation that nobody with authority seems to want to address.

The legislature has declined amending the law to provide clarification, the Attorney General has not cooperated in clarifying guidelines for interpreting the law, and courts have stepped in to muddy the waters further. If left to the courts to handle, the situation could go on for years without resolution and at a tremendous financial cost.

Los Angeles has recently been a hot bed of medical marijuana-related conflict and law enforcement raids. Prosecutors argue that collectives are not permitted to sell medical marijuana at their dispensaries and can only give it to members who actively help cultivate it. Dispensary owners insist that they are permitted to sell marijuana for cash.

The Los Angeles City Council has stepped in to try to resolve the conflict. The Council's solution would allow cash and in-kind contributions to collectives to count as participation in the cultivation. However, it would also require such contribution to be in strict compliance with state law. Therefore, it does not help solve the problem.

Presently, pot dispensaries allow people to sign up for the "collective", pay money, and leave with the pot. Proponents argue that terminally ill people cannot contribute labor to the collective; the only thing they have to give is cash. Opponents, on the other hand, would allow pot to be shared only among the people who actively participate in growing it. In fact, a recent judge in Los Angeles ruled that the operation of storefront dispensaries is beyond the legislative intent of the bill. This ruling, and others like it, is in conflict with Attorney General Brown's opinion that while not recognized by law, storefront dispensaries may be permitted to dispense medical marijuana.

How does the state's medical marijuana law affect the workplace? It doesn't. The California Supreme court recently held that it was not illegal for an employer to fire an employee who tests positive for pot, even if the employee had a prescription under the California Compassionate Use Act of 1996. The Act provides a defense to certain state criminal charges and allows a person with a valid prescription to use and possess the drug. In direct conflict is federal law, which prohibits the possession of marijuana, even for medical users.

In finding for the employer, the Court held that the Compassionate Use Act was not intended to be used in the employment arena and that California employers are permitted to take use of illegal drugs into consideration when making employment decisions (Loder v. City of Glendale (1997) 14 Cal.4th 846). The court further found that allowing the use of medical marijuana was not a reasonable accommodation required under California's Fair Employment and Housing Act (FEHA).

However, the Merced Superior Court recently ruled against the California DMV and awarded approximately $70,000 in attorney’s fees to Americans for Safe Access (ASA). In November 2008, ASA filed suit against the DMV regarding its policy of revoking the drivers' licenses of medical marijuana patients, considering them to be "drug abusers". The case was based on the experiences of Rose Johnson, a 53-year-old who had her license revoked by the DMV due to her status as a marijuana patient. The DMV clearly saw the error of its ways. In early 2009, the DMV established a formal policy of treating pot like any other prescription drug. Because of this change in policy, the Court found that the plaintiff was entitled to compensation for effecting change in the administrative agency.

Marijuana advocates recently got approval from the California election board to try and put a pot-legalization initiative on November 2010 ballot.

http://www.latimes.com/news/local/la-me-marijuana-confusion6-2010jan06,0,5082083.story

Millie Anne Cavanaugh, Esq. is a Los Angeles immigration lawyer and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.

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