California Medical Marijuana – What if I’m On Probation?

April 30th, 2012 Posted by: Beck Law P.C.

Q: I have a serious medical condition, and my physician has recommended the use of medical marijuana to treat.  But I’m on probation for a past offense, and my probation terms say I can’t have any drugs or alcohol in my system.  Should I ask probation if they can make an exception?

A: More and more probationers are seeking to lawfully use medical marijuana to treat illness, while at the same time, seeking to act in full compliance with the terms of their sentence.  The first and foremost manner of obtaining permission to use medical cannabis on probation is of course to ask for it before entering a plea and setting the terms of probation.  An attorney knowing the medical marijuana laws should be able to negotiate permission from probation, the district attorney, and the court for the patient to at least use marijuana while on probation, and a skilled attorney will be able to negotiate permission for the patient to grow for personal use while on probation.  Such a task becomes more difficult if the offense in the underlying prosecution involves drug charges, such as unlawful cultivation or transportation, but in most other cases, where drugs or alcohol are not involved, it is possible to negotiate rights for the probationer to use and cultivate medical marijuana before the entry of the plea.

For those who are already on probation which restricts drug usage and contains no exception for medical marijuana, the proper procedure lies within a motion to modify the terms and conditions of probation under California Penal Code §1203.2(b) and §1203.3(a).  Upon petition of the probationer, the court may alter or modify the terms of probation in the interests of justice, and should consider any report by probation and the evidence in support of the petition.  More specific to medical marijuana, however, is California Health and Safety Code §11362.795, which permits any criminal defendant, on either probation or parole, to petition the court specifically to use medical marijuana while on probation, released on bail, or released on parole from state prison.  Even if the probationer obtains a recommendation after the instatement and imposition of the sentence, the probationer may make the request to the court to modify the terms and conditions of probation.

Further, those being charged with a violation of probation (VOP) for using marijuana without such an exception still have a defense under California Health and Safety Code 11362.5.  The appellate court in People v. Tilehkooh (2003) 113 Cal.App.4th 1433 ruled that while the illegal use of marijuana could form a basis to revoke a defendant’s probation, the lawful use of medical cannabis provides the probationer with a defense at the VOP hearing, to show that they used medical marijuana pursuant to a valid physician’s recommendation, and otherwise within applicable state and local guidelines.

If you are on probation, and are either considering obtaining a physician’s recommendation for medical marijuana, or are charged with a violation as a result of marijuana usage, growth or possession, you should consult with a skilled, professional attorney in order to fully protect and secure your rights to the extent possible. Read more »

California Medical Marijuana – Landlord Tenant Issues

April 21st, 2012 Posted by: Beck Law P.C.

Q: I am in charge of a collective, and I grow on behalf of other patients in the collective.  I have plants at my own residence, but my landlord just told me that growing the plants somehow violates my lease agreement.  He claims doing it is “illegal”, so I can’t be doing on the property.  Now he’s threatening to evict me.  What should I do?

A: This issue of law is not clear-cut, and every person should be aware that the applicable law depends heavily on the language in the lease contract between the landlord and tenant (assuming a written contract exists).  But, an argument may certainly be made that any contractual provision which prevents a tenant from lawfully possessing or cultivating medical marijuana under California law may not be enforceable to evict a tenant as a result of such possession or cultivation.

The Compassionate Use Act of 1996, as an amendment to the California Constitution, certainly provides a strong policy argument for a tenant’s safe access to medical marijuana, as the law was written “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician”.  California Health & Safety Code §11362.5.  Where a contract contains an illegal provision, or a term which contains a covenant contrary to an express policy of law, the contract is void as to that term or provision, and not enforceable.  CC §§1599, 1667; Farmers Ins. Exch. v Hurley (1999) 76 Cal.App.4th 797; Discover Bank v Superior Court (2005) 36 Cal.4th 148 (class action waiver in consumer adhesion contract); Kelly v First Astri Corp. (1999) 72 Cal.App.4th 462 (gambling contracts).

Therefore it may be argued that a lease term which prevents the tenant’s lawful use, possession or cultivation of medical cannabis is not enforceable, as California law establishes a strong public policy in favor of a person’s right to use and cultivate medical marijuana.  There, of course, have been numerous California cases that have dealt with the rights of qualified patients to remain free from criminal sanctions pursuant to the MMP and CUA (People v. Mower (2002) 28 Cal.4th 457; People v. Kelly (2010) 47 Cal.4th 1008; People v. Jones (2003) 112 Cal.App.4th 341; People v. Wright (2006) 40 Cal.4th 81, to name a few), but there have also been other cases dealing with the civil rights of medical marijuana patients, specifically the rights to possess and repossess their medical marijuana (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798; City of Garden Grove v. Superior Court (Kha) (2007) 68 Cal.Rptr.3d 656, 680, 157 Cal.App.4th 355.  (“Medical marijuana is lawful under the terms and conditions set forth in the CUA.”)  Any court may and should consider the policy of well-established law in order to determine that such a contractual term between private individuals cannot supersede such a policy.  Sixells, LLC v. Cannery Business Park (2008) 170 Cal.App.4th 648, 654-655; Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1400

Analogies may be made to other provisions of law which cannot be superseded by a tenancy contract for the same reason: a strong public policy.  For example, California’s Unruh Civil Rights Act was intended to protect all Californians from discrimination based upon “sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation”, to ensure full and equal accommodation of businesses and establishments.  CC §51(b).  This is a firm principle and policy of California state law.  California Constitution, Art. I, §13; Unruh Civil Rights Act, CC §§51, 52; Hawkins Act, H&S §§35700-35741.  Such a law supersedes what may be written in a residential or commercial lease, regardless of whether the lease contains terms which would otherwise permit discrimination in contradiction to this policy.  Burks v. Poppy Constr. Co. (1962) 57 Cal.2d 463, 468; Lee v. O’Hara (1962) 57 Cal.2d 476, 478.   So should a landlord, for example, draft a provision of a lease which states he does not have to provide access to handicapable persons under the Americans with Disabilities Act, such a term arguably would not be enforced by a court of law.

As stated, such an argument heavily depends upon the individual facts and circumstances of the case.  If you or someone you know is concerned about their landlord evicting them as a result of the exercise of their rights under the Compassionate Use Act, you should find an office of legal professionals familiar with both landlord/tenant law and medical marijuana law.  Read more »

California Medical Marijuana Program ID Card

January 30th, 2012 Posted by: Beck Law P.C.

Q: What is the Best Protection
A: Under California law, all patients must possess a physician’s recommendation for medical marijuana. Under the California Medical Marijuana Plan (MMP), however, a patient may also apply to their local county Department of Public Health for a medical marijuana identification card. Your local county division of the Department of Public Health can issue this identification card to a patient or primary caregiver in possession of a valid physician’s recommendation after processing an official application, and the enclosure of a fee. Note that it is not necessary for a patient or caregiver in California to possess this identification card to use or possess medical marijuana; only a valid physician’s recommendation is necessary for personal use.

So why go through the trouble to apply for the identification card and pay a fee for something you technically don’t need? Simple: the identification card grants the holder immunity from arrest for transporting, possessing or cultivating medical marijuana, as long as the holder is otherwise in compliance with the law. This immunity is codified in California Health and Safety Code §11362.71(e), which states, in totality:

No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.

This is the most powerful protection available to patients and primary caregivers under California law. If you are approached by California law enforcement and questioned about the use, cultivation or transportation of medical marijuana, you can still be arrested even if you present a valid physician’s recommendation. For example, an officer could believe your recommendation is fraudulent or forged, in which case you may be held to answer unnecessary criminal charges simply to force you to prove your paperwork is valid. However, since the identification card grants the patient immunity from arrest, once law enforcement personnel verifies the validity of your card, they should release you immediately and return whatever medical marijuana they have seized, if any. This procedure is endorsed by the California Attorney General in the Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, stating:

If the card is valid and not being used fraudulently, there are no other indicia of illegal activity (weapons, illicit drugs, or excessive amounts of cash), and the person is within the state or local possession guidelines, the individual should be released and the marijuana should not be seized.

Since this form of protection is provided expressly by the California legislature, and endorsed by the California Attorney General, it is an extremely valuable item to have in your wallet if you are a serious patient or caregiver, certainly worth the trouble of the application and the fee. County of Butte v. Superior Court (Williams) (2009) 175 Cal.App.4th 729, 738. (“Immunity from arrest is exceptional and, when granted, ordinarily is granted expressly”).

Therefore, the card represents an official document from the State of California recognizing the patient’s right to use medical marijuana. If the card carrier is a primary caregiver, the card shows that the caregiver has a right to possess and transport medical marijuana on behalf of the patient or patients they care for. The identification card itself somewhat resembles a driver’s license: it contains the holder’s photograph, the official seal of the State of California, a date of expiration, and an identification number. The back side of the card contains a copy of the actual physician’s recommendation to the patient upon which the identification card is based. The object of the identification number is to provide law enforcement with a method of immediately verifying the validity of the identification card. Simply by accessing the web site, www.calmmp.ca.gov, and entering in the patient’s identification number, law enforcement may determine if the patient’s card is valid in less than thirty seconds.

Beck Law P.C. recommends any patient or primary caregiver seeking to take the fullest advantage of their rights to medical marijuana under California state law apply for the medical marijuana identification card. To fully understand the applications of the identification card and other aspects of California’s medical marijuana laws, contact a knowledgeable and professional attorney, well-versed in such matters. Read more »

California Medical Marijuana – Return of Property

January 24th, 2012 Posted by: Beck Law P.C.

Q: I was arrested for marijuana possession. Since I have a physicians California medical marijuana recommendation, I was able to get the charges dismissed, but the police are still holding my marijuana. Do they have the right to keep it, even though my case was dismissed? Is there a way to get it back?

A: Generally, yes. In California, if a person has a physician’s recommendation for medical marijuana, they have a right, under state law, to possess, cultivate and use cannabis to the extent permitted by law. California Health & Safety Code §11362.5. This means the cannabis belongs to the patient just as any moveable property, and cannot be taken away by law enforcement without probable cause to believe it is not lawfully possessed or cultivated.

A California court’s authority to return property to an accused generally may stem from several other laws, such as California Penal Code §§ 1417.5 (providing for return of exhibits in criminal case); 1540 (restoration of property that was wrongfully taken pursuant to search warrant); 1538.5, subd. (e) (return of property subject to successful search or seizure motion). However, specifically with respect to the issue of returning medical marijuana to an accused after their case had been dismissed, the appellate court in Garden Grove v. Superior Court (Kha) (2007) 157 Cal.App.4th 355 provides this authority. In short, the court in Kha held qualified patients have the right to obtain and use marijuana without fear of criminal prosecution or sanction under Health & Safety Code §11362.5, and that due process, as well as several Penal Code provisions, require the return of lawfully possessed property, including medical marijuana, to qualified patients.

Do you need a physician to sign a declaration or testify in support of such a motion? Not necessarily. A qualified patient may testify about his or her recommendation for marijuana, regardless of whether the physician is not willing, or not available, to testify. People v. Jones (2003) 112 Cal.App.4th 341, 4 Cal.Rptr.3d 916, 920-924. All the patient need do is raise a reasonable explanation, supported by facts, so that a Court may conclude the patient possessed the marijuana for its intended, lawful use. The direct testimony of one person is sufficient to prove any given fact of consequence, so theoretically, only the patient’s statements are required to carry the burden of proof in this regard. People v. Spark (2004) 121 Cal.Apop.4th 259.

The procedure is to set a motion for the return of the property, and filing moving papers, with declarations and exhibits in support. This generally requires, as noted above, at least a declaration from the patient, along with a copy of their recommendation in effect at the point of seizure. Should the court grant the motion, the court will order law enforcement to return the property. The order may be delivered to the agency holding the cannabis to facilitate its return.

What happens if, at the time the motion is filed, the patient’s recommendation has expired? Do not be fooled by this argument, as medical marijuana recommendations do not necessarily expire. In People v. Windus (2008) 165 Cal.App.4th 634, the appellate court analyzed the issue of whether a recommendation for medical marijuana could “expire” for being too old or stale. The court responded simply by stating “no”, a recommendation for medical marijuana does not “expire” under the Compassionate Use Act, nor does a doctor’s recommendation become stale simply because a certain amount of time has passed from the point the recommendation is obtained to the point of use. Id at 641. The appellate court reasoned, since the patient at issue in that case was in fact eligible to use medical marijuana at the relevant times, it mattered not whether the doctor had recently approved the use, so long as the patient’s medical conditions in fact warranted the use. Id at 641-643. Therefore, as long as a patient still suffers from the medical conditions which required cannabis in the first place, they are entitled to use and possess it, despite the “expiration” of their recommendation. Read more »

Medical Marijuana and Child Custody Issues

January 13th, 2012 Posted by: Beck Law P.C.

Q: I have been married for several years, and unfortunately am now going through a divorce with my spouse.  We have children, and I think we’re going to be able to work out our issues with visitation and custody.  But I also smoke medical marijuana for a health condition I have.  If things go sour, and we end up in court, does using medical marijuana affect my chances of getting custody of my children?

A: The answer to this question depends on the facts and circumstances.  The Compassionate Use Act of 1996 gives “seriously ill Californians” the right to use and cultivate medical cannabis for medical use within certain guidelines.  California Health & Safety Code §11362.5.  The right to use medical cannabis, however, is limited just as any other right, so as not to cause harm or injury to another.

This principle applies equally to parents and minors.  For example, it is legal for adults to consume alcohol and to have alcohol present in their home.  However, the government may lawfully remove children from their legal guardians, should a court determine that the children have been unduly exposed to alcohol abuse or a threat or injury as a result of neglect reckless conduct.  In In re Samkirtana S. (1990) 222 Cal.App.3d 1475, the appellate court held a mother’s abuse of alcohol was good cause for finding her children at risk of harm, even though use of alcohol is legal.

Generally speaking, regardless of the legality any type of smoking, be it tobacco, marijuana, or otherwise, should not be used in proximity to minors.  The effects of second hand smoke to minors may very well be grounds for removal of minors from their guardians.  For example, in In re Alexis E. (2009) 171 Cal.App.4th 438, the appellate court addressed a situation where the Father had used medical marijuana, with a valid recommendation, near his children in his home.  The appellate court found, first, that because Father has used marijuana prior to obtaining a recommendation around his children, it was no different than any other type of illicit drug abuse.  Id at 451.  Second, with respect to the Father’s claim that he had a right under California state law to use medical marijuana even with his children present, the appellate court rebuked:

The children say they smell it. One of the children stated: “My dad sucks drugs; he does them all the time. It looks like daddy’s going to set a fire on the house and it stinks.” The trial court could reasonably find that Father’s use of marijuana constituted a risk of harm to the minors because of Father’s failure to protect the minors from the marijuana smoke. While it is true that the mere use of marijuana by a parent will not support a finding of risk to minors (In re David M. (2005) 134 Cal.App.4th 822, 829-830 [36 Cal.Rptr.3d 411]; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1345-1346 [12 Cal.Rptr.3d 572]), the risk to the minors here is not speculative. There is a risk to the children of the negative effects of second hand marijuana smoke.

Id at 451-452.  This logic is consistent with principle that the laws and prohibitions against smoking tobacco apply similarly to the act of smoking marijuana.  And just as second-hand tobacco smoke would be injurious to children, the appellate court found second-hand marijuana smoke was no different.  However, it is still important to note that In re Alexis E. acknowledged that mere use of medical marijuana “without more” cannot support an adverse finding in dependency court.  Id at 453.  In other words, there must be other specific facts showing specific endangerment or potential abuse to the minors.

Issues of custody would be no different.  As custody of minor children under California law is measured in the best interests of the child, the same rationale could be used against a parent who, though using medical marijuana lawfully, could endanger their children, and therefore have a greater chance at being denied custody by a court.

Read more »

Primary Caregivers vs. Patients

December 14th, 2011 Posted by: Beck Law P.C.

Q: Someone recently asked me if I could be their primary caregiver, but I’m concerned about my own liabilities if I handle marijuana without a recommendation myself.  What do I need to do to protect myself if I decide to become a caregiver?

A: The Compassionate Use Act, as originally enacted, recognizes two categories of persons who enjoy the protections against California criminal sanctions for cultivation, possession and transportation of medical marijuana: patients and primary caregivers.  Pursuant to California Health and Safety Code §11362.5, a person qualifies as a patient eligible to use medical marijuana if they obtain recommendation or approval from a licensed physician.  A primary caregiver is defined as someone “who has consistently assumed responsibility for the housing, health, or safety” of a patient with a recommendation to use medical marijuana under subsection (e).  In short, a primary caregiver in California is a person who may not be eligible to use marijuana themselves, but instead cares for a patient, and is also able to cultivate and transport marijuana for the patient.

The interpretation of subsection (e) by the California courts is critical knowledge for anyone to have who either purports to act as or intends to act as a primary caregiver for a patient.  The California Supreme Court in People v. Mentch (2008) 45 Cal.4th 274 drew a comprehensive interpretation of the primary caregiver definition, saying:

From these aspects, as we shall explain, we conclude a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.

The first requirement means that a caregiver must consistently assume responsibility for the patient’s “housing, health, or safety, or some combination of the three”.  The second requirement means the caregiver must have had a relationship involving the care of the patient independent of the use of marijuana; in other words, the caregiver must provide for the patient independently, even if the caregiver did not administer any marijuana to the patient.  The third requirement means a caregiver relationship must arise prior to or contemporaneously with “the onset of assistance in the administration of marijuana”.  Some common examples of a primary caregiver could be in-home care nurses or physicians, or medical personnel at convalescent homes or treatment centers, given they meet the requirements set forth in Mentch.  Though not mentioned in Mentch as a requirement, the Medical Marijuana Plan purports to place a minimum age requirement of eighteen (18) on primary caregivers, unless they are the parents or guardians of a child.  California Health and Safety Code §11362.7(e).

If a person qualifies as a caregiver, they are entitled to the same immunity from criminal charges for cultivation, transport and possession of marijuana as are patients under the Compassionate Use Act.  Further, under the Medical Marijuana Plan, primary caregivers may even apply for a identification card which gives them the same immunity from arrest as the identification card does for patients who obtain one.  California Health and Safety Code §11362.71(e).  Finally, pursuant to 11362.795(c), primary caregivers may receive a reasonable compensation for their services in addition to reimbursement for costs, and such payment alone cannot subject the caregiver to criminal liability for transporting marijuana and transportation for sale under Section 11359 and 11360.

California State law per se does not require any specific documentation for a person to claim primary caregiver status, but some county codes or city ordinances may place stricter requirements.  For example, San Mateo County currently requires primary caregivers to keep a register of patients they tend to, available to the Sheriff upon request.  San Mateo County Ordinance 5.148.030.  Other cities and counties may have similar requirements.  However, many primary caregivers maintain basic documentation in order to ensure compliance with state and county laws, such as authorizations, collective agreements and ledgers.

If you or someone you know is interested in being a primary caregiver for another, or already acts as one and wants to know more about the rights of caregivers under state law, contact your local law office for answers to these questions. Read more »

California Medical Marijuana – Search and Seizure

November 15th, 2011 Posted by: Beck Law P.C.

Q: I have a valid medical California Medical Marijuana recommendation. I was driving in my car, and pulled over for a minor traffic violation.  But the police searched my entire car after claiming they smelled “bud” somewhere in the vehicle!  Can California law enforcement really subject me to a search, even though I had a right to possess the marijuana for my own personal use?

A: The answer is maybe yes, and maybe no.  As far as a California traffic violation, law enforcement always has the ability to stop a moving vehicle when a traffic violation is observed.  The officer may stop a motorist to conduct a brief investigation while giving the driver a ticket.  People v Franklin (1985) 171 Cal.App.3d 627, 633.  It makes no difference if the officer stopped the vehicle with a subjective intent to look for marijuana; as long as a legitimate traffic violation occurs, law enforcement may stop the vehicle even under this “pretextual” stop.  Whren v U.S. (1996) 517 U.S. 806, 809-813.

May the officer search the entire vehicle to determine where the marijuana is located, even for a minor traffic violation?  Even if a later seizure is completely unrelated to the cause for the stop, as long as an officer has reasonable cause to search the vehicle at any given time for contraband, an officer may search any and all containers in the vehicle where such contraband may be found.  U.S. v Johns (1985) 469 U.S. 478, 482-483; U.S. v Ross (1982) 456 U.S. 798, 823.

California law has held this same rule of probable cause applies even where a person may have a medical marijuana defense, when officers have objective cause to believe the person has committed a crime.  People v. Mower (2002) 28 Cal.4th 457.  For example, if a patient detained for a California traffic violation presents a medical marijuana recommendation to an officer, and yet the officer can visually identify over eighty (80) pounds of marijuana within the patient’s vehicle, the officer may very well have reasonable cause to believe that a crime is occurring.  The California Supreme Court in Mower stated:

Even when law enforcement officers believe that a person who “possesses or cultivates marijuana” is a “patient” or “primary caregiver” acting on the “recommendation or approval of a physician,” they may—as in this case—have reason to believe that that person does not possess or cultivate the substance “for the personal medical purposes of the patient” (§ 11362.5(d)).

This does not mean that a recommendation is meaningless to deter law enforcement.  On the contrary, the presence of a medical marijuana recommendation, collective agreement, or other written documentation showing a patient’s compliance with California state law, all present factual circumstances to the court to show that cause supporting search for illegal contraband is not warranted.

Does the same rule apply to those who hold medical marijuana identification cards under the California Medical Marijuana Program?  A patient is probably in a much better position, legally, to claim their Fourth Amendment rights have been violated if law enforcement were to search the patient while in possession of a valid California medical marijuana ID card.  These cards likely present a patient’s best defense against any search and seizure.  California Health and Safety Code §11362.71(e) provides:

No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article. (Emphasis added).

Unlike the recommendation at issue in Mower, the California medical marijuana identification card would grant a patient statutory immunity from arrest, assuming they had a valid card, and were not engaged in any other illegal activity.  The teeth of Section 11362.71(e) has yet to be tested at the appellate court level in California, but the logical implications of that provision carry great significance. Read more »

Interplay of California State, County, and City Laws

November 8th, 2011 Posted by: Beck Law P.C.

Q: I belong to a Northern California collective, and I grow medical marijuana plants for the benefit of other patient members of the collective, but I can’t figure out which laws I have to comply with.  State law seems to say something different than my local county and city regulations.  Which laws do I need to follow in order to stay in compliance?

A: As of right now, all of them.  The Compassionate Use Act of 1996 itself places no per se limitation on the quantity of a) dried cannabis, or b) marijuana plants per patient, leaving the determination of quantity to licensed physicians, to whatever quantity is “reasonably related” to their medical needs.  California Health and Safety 11362.5; People v. Kelly (2010) 47 Cal.4th 1008, 1049.  The Medical Marijuana Plan passed in 2004 places limitations on the amount of cannabis and plants patients and primary caregivers possess, including:  “no more than eight ounces of dried marijuana per qualified patient”, and “no more than six mature or 12 immature marijuana plants per qualified patient”.  H&S §11362.77(a).  However, as the California Supreme Court noted in Kelly, the Medical Marijuana Plan cannot place any limit on a patient’s right to possess medical marijuana, dried or plant, to the extent that it would deprive the patient of present a defense in court to criminal charges for growing or possessing marijuana.  So a patient must comply with the limitations of the Medical Marijuana Plan, but only to an extent using more dried marijuana or growing more marijuana plants is reasonably related to their medical needs.

What about county regulations?  Not many counties contain any specific limitations or prohibitions of growing marijuana collectively.  However, many counties contain either restrictions on the number of storefront medical marijuana dispensaries, and some counties restrict them entirely.  Normally, those counties that do permit storefront dispensaries but install strict requirements pursuant to a use permit application for a location.  For example, in Stanislaus County, the permit for a storefront dispensary requires high grade security on the building location, including cameras, a secure front area where patients come in, and approval by the county Sheriff as to the floor plan, location and legality of the operation.  Stanislaus County Code, Sec. 9.86.110.  Patients seeking to cultivate through a storefront dispensary must comply with any and all applicable county regulations, as counties have the power to place reasonable zoning and use restrictions on dispensaries.  City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1158.

The same logic applies for regulations by incorporated cities.  When operating any collective or dispensary location within a city’s limits, it is the ordinance of the city which sets forth the rights and limitations to grow or dispense medical marijuana, not the code of the county in which the city lies.

How strict can the regulations be?  Generally, the same rules which apply to any local ordinances apply to those governing the growth and dispensing of medical marijuana:

Under article XI, section 7 of the California Constitution, “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” “`If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.’ [Citations.]” Kruse, 177 Cal.App.4th at 1168-1169, citing Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897.

In short, counties and cities may enact regulations on medical marijuana to an extent that they are not pre-empted by state law.  Recently, Assembly Bill 1300, approved by Governor Brown on August 31, 2011, makes this common law rule explicit with respect to medical marijuana, by permitting county and municipal agencies from adopting and enforcing ordinances that regulate the establishment of collectives and cooperatives.

For better and for worse, this complex interplay of state, county and city regulations creates a confounding labyrinth of pitfalls for any patient cultivating or planning to open a dispensary.  In order to know the fullest extent of your rights, contact a skilled legal professional so you can make the most informed decisions possible in this area of uncertainty.  Read more »

California Medical Marijuana Delivery Service

October 17th, 2011 Posted by: Beck Law P.C.

Q: What is a Delivery Service?  What documents do I need to start one? 

A: The term “delivery service” is nowhere defined under California law, so if you’ve been looking for a legal description, you won’t find it.  Popularly defined, a delivery service in California is any manner of transportation of medical marijuana to a patient or primary caregiver for a patient.  California Dispensaries often provide, as an additional service to patients, for the delivery of medical marijuana from the dispensary to the patient’s home.  This serves to accommodate those patients too ill to physically go to the storefront in order to obtain what they require to treat their conditions.

Pursuant to the California Attorney General’s guidelines, every association of patients seeking to engage in the collective growth and distribution of medical marijuana to persons at other locations should obtain proper documentation from the California Secretary of State and municipal authorities.  This normally includes a Seller’s Permit from the State Board of Equalization, a Business License from any city in which the delivery service plans to operate, and any additional licenses or permits applicable to the particular method of transportation.  Of course a delivery service must also be not for profit as are dispensaries and cooperatives, and therefore anyone seeking to form a delivery service as a service unrelated to a dispensary should form a non-profit entity for the service itself.  Any delivery service should also provide additional documentation for drivers and employees evidencing the legality of both the patient (to receive the medical marijuana) and the driver (the authorization to transport on behalf of the patient).

Like dispensaries, a California delivery service is still subject to laws regulating the transportation of medical marijuana among patients, and the reasonability of the amount transported.  The premise of a delivery service is that any recipient of the medical marijuana is also a member of the collective of the delivery service.  The act of delivery from the collective to the patient therefore is no different than if the patients were providing medical marijuana to each other within the same household: the transportation remains among patients, closed circuit, and helps to ensure that illegal transports do not occur.  But the operators must still be aware of the reasonability requirements of transporting to patients, for regardless of whether medical marijuana is transported to the patient or simply grown for personal use, the patient may only use an amount to which they reasonably require.  People v. Wayman (2010) 189 Cal.App.4th 215.

Be warned: conceptually and factually, delivery services remain a legal uncertainty and ambiguity under California medical marijuana laws.  Since they are neither expressly permitted nor prohibited by state law, it is not uncommon for county and municipal authorities to make their own regulations to either restrict delivery services or prohibit them entirely.  You should absolutely consult with a qualified attorney prior to engaging in any activity relating to a delivery service. Read more »

My Employer and California Medical Marijuana Use in The Work Place

September 23rd, 2011 Posted by: Beck Law P.C.

Q: I have a California recommendation for medical cannabis, but I’m afraid that if I use marijuana, my employer may fire me for testing positive for THC while on the job.  Am I allowed to use marijuana on the job in California?

A: There is no easy answer to this question, and unfortunately, California State law has not yet recognized the rights of patients to be free from discrimination in the workplace.  The Compassionate Use Act of 1996, while stating that patients and primary caregivers should remain free from criminal sanctions for the cultivation, use and transportation of marijuana, nowhere does the statute contain any reference to the civil rights patients and caregivers might have with respect to discrimination.  Neither did the Medical Marijuana Plan (Senate Bill 420) make any further reference or clarification in regards to the rights of users of medical cannabis which were not criminal in nature.

The prevailing case on point is Ross v. RagingWire Telecommunications (2008) 42 Cal.4th 920.  There, Gary Ross suffered injuries to his back while acting as a member of the United States Air Force, and began using medical cannabis in 1999 to treat the pain from this injury.  He was hired by RagingWire in 2001, but within a week, tested positive for tetrahydrocannabinol (THC) for a test taken on the job (even though Ross only smoked off the job, the THC remained in his system long enough to show up on a test taken at work).  RagingWire then terminated Ross’ employment because of the marijuana usage.  Ross sued RagingWire alleging discrimination under the Fair Employment Housing Act (FEHA), and wrongful termination in violation of public policy.  The trial court granted RagingWire’s demurrer (a type of motion to dismiss), and the appellate court affirmed.

A majority of the California Supreme Court agreed.  While Ross argued that the Compassionate Use Act legalized his conduct, the opinion noted that nothing in the Compassionate Use Act showed any intent of the voters passing Proposition 215 to address the specific rights and remedies of employers and employees regarding medical marijuana.  The Court read the law narrowly, stating:

In conclusion, given the Compassionate Use Act’s modest objectives and the manner in which it was presented to the voters for adoption, we have no reason to conclude the voters intended to speak so broadly, and in a context so far removed from the criminal law, as to require employers to accommodate marijuana use.

Further, the Court found, for similar reasons, that a termination of an employee for using medical marijuana did not violate public policy.  Since the Compassionate Use Act made no express statement or intent to forge a policy in favor of employee rights to use medical marijuana, the Court did not find that such a termination as a result of marijuana usage violated the policies of the law.  As long as the narrow principles of decriminalizing marijuana were served, the Court claimed it had no providence to interpret the law to protect an employee from being fired for using medical cannabis, even pursuant to a lawful recommendation.

Some organizations such as Americans for Safe Access to Marijuana (ASA) are currently working on proposals for the California legislature to review in order to better protect the civil rights of patients and caregivers under California law.  Visit their website to follow developments in medical marijuana laws across the nation, including access to a wealth of useful legal information, blogs, articles and other services.

Even though the Compassionate Use Act alone may not protect a patient from retaliation by their employer for using medical marijuana, there still may be other grounds to state a claim for wrongful termination depending upon the facts and circumstances of your case.  You should contact an attorney to determine your rights and remedies.  Read more »

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