While Oakland's Regulate, Control, and Tax Cannabis Act of 2010 (ROT 2010) has been amended to exclude California's current medical marijuana laws from two items, it could still be a Trojan Horse.
For one thing, the two items that exempt California's current medical marijuana laws apply only to sales, tax, and possession; and this only in cities.
Nowhere in the proposition are medical marijuana patients, providers, and caregivers exempted from its cultivation, distribution, transportation, licensing, and administration requirements. And nowhere does the phrase "except as permitted under Health and Safety Section 11362.5 and 11362.7 through 11362.9" apply to "local government" or "county".
Proposition 215, The Compassionate Use Act of 1996, became California Health and Safety Code §11362.5. The California Medical Marijuana Program (MMP) was passed by the legislature as SB 420 and signed by Governor Gray Davis in 2003, just before he was recalled and replaced with Arnold Schwarzenegger. It became California Health & Safety Codes §11362.7 through §11362.83.
Initiatives in California are of higher legal authority than legislation and therefore Prop 215 (§11362.5) trumps the MMP (§11362.7 through §11362.83).
What's wrong with the Regulate, Control, and Tax Cannabis Act of 2010 (ROT 2010)
The first thing to note is the phrase "except as permitted under Health and Safety Section 11362.5 and 11362.7 through 11362.9".
The next thing to note is the use of the words "city", "county", and "local government". In §11304(d)(vi) ROT 2010 defines "local government" as "city", "county", or "city and county". (Coincidentally, there is only one city/county in California and that is San Francisco.)
ROT 2010 consists of 5 sections: 1 - Name; 2 - Findings, Intents, and Purposes; 3 - Lawful Activities; 4 - Prohibition on Furnishing Cannabis to Minors; and 5 - Amendment.
The first two sections are essentially window dressing and have no direct effect on law except, perhaps, to act as guidance when questions of interpretation arise. It is in Sections 3, 4, and 5 that the actual legal language appears.
The amendments to ROT 2010 made 4 Aug 09 consist of appending the phrase "except as permitted under Health and Safety Section 11362.5 and 11362.7 through 11362.9" to items 7 and 8 of Section 2 under Purposes. Neither the word "county" nor the phrase "local government" appear in these items, but only the word "city". Further, those items are specific to buying, selling, taxing, possession, and consumption. The words, "cultivation", "processing", and "transportation" do not appear.
Items 7 and 8 have to do with prohibiting sales in "cities" that do not tax marijuana while allowing the possession and consumption of small amounts for personal use in private.
While it appears the intent of the amendments is to prevent ROT 2010 from impacting current California medical marijuana law, patients, and providers; a strict reading reveals this is not what it says.
Ironically, it appears that while it would be illegal to sell recreational marijuana in a city that doesn't tax it, selling recreational marijuana in an unincorporated area where the county is the "local government" would be legal unless and until the county enacts a marijuana tax or prohibits sales. Could it be argued that if ROT 2010 had meant "county" or "local government" it would have said it?
Previously, I stated this initiative was a treacherous Byzantine Maze and a Trojan Horse. Then, upon learning it had been amended I published an article announcing that it no longer appeared any of the initiatives filed in California would threaten California's current medical marijuana laws. It now appears this may not be the case.
Section 3, Lawful Activities, is the meat of ROT 2010. It is comprised of four sections of law to be added to the California Health and Safety Code as sections 11300 through 11304.
§11300 legalizes possession, processing, and transportation of up to an ounce for personal consumption and cultivation of up to 25 square-feet for personal use. It also prohibits consumption in public and smoking marijuana anywhere children are present as well as sales except by licensed vendors. Neither the words "city", "county", or "local government" appear in this section. Since the impact of this initiative on California's current medical marijuana laws is exempted only for "cities" and only with regard to "sales", "tax", "possession" and "consumption" of marijuana, it could be interpreted to set limits for patients on possession and consumption in unincorporated areas where the local jurisdiction is the county.
Since "cultivation" is nowhere in the document related to the exemption for current California medical marijuana law, ROT 2010 could be used to set marijuana cultivation limits statewide, for medical patients as well as recreational users.
This is all the more likely because recently the California Court of Appeals struck California Health & Safety Code §11362.77 enacted by the legislature which limits the number of plants and weight of dried bud medical marijuana patients can have because it conflicts with Proposition 215 (§11362.5) which has no limits. This matter is currently on appeal to the California Supreme Court.
Since ROT 2010 as an initiative has the same authority as Proposition 215 and is 14 years afterwards, it could well be argued that it was the intent of the voters to set limits where there were none, or to allow each city or county to set limits on how much patients may cultivate and possess. This possibility is further supported by the conspicuous absence of Health & Safety Codes 11362.5 and 11362.7 through 11362.83 in the list of California laws ROT 2010 is not intended to affect in Section 2, C - Intent.
The limits in Santa Cruz County for medical marijuana patients are 3 pounds and 100 square feet of canopy. Three pounds is what your average medical marijuana patient will use in one year. Twenty-five square feet is about enough room to bloom a couple of plants. If you're lucky, an indoor plant will yield 2.5 ounces. If you're not, you'll get an ounce or less per plant. The bloom cycle is 8 weeks and it takes at least as long to grow a clone to the point it will produce enough bud to be worth harvesting.
A perpetual garden requires at least two different areas with different lighting; one for cloning and growing the clones in a vegetative state, and another for blooming the clones. Many patients would not be able to supply themselves if limited to 25 square feet total for their grow area, particularly those who are not master gardeners, and especially if they grow outdoors and can only bring in one crop a year.
And then there are crop failures.
Take a look at its proposed §11300(a):
Notwithstanding any other provision of law, it is lawful and shall not be a public offense under California law for any person 21 years of age or older to:
(i) Personally possess, process, share, or transport not more than one ounce of cannabis, solely for that individual's personal consumption, and not for sale.
How does someone "share" something that is "solely for that individual's personal consumption"?
Does this section apply "notwithstanding" current California medical marijuana laws?
Similarly, §11301 states:
Notwithstanding any other provision of state and local law, a local government may adopt ordinances, regulations, or other acts having the force of law to control, license, regulate, permit, or otherwise authorize, with conditions, the following:
...(b) retail sale of not more than one ounce per transaction, in licensed premises, to persons 21 years of age or older, for personal consumption and not for resale
Does "Notwithstanding any other provision of state and local law..." include California Health & Safety Codes 11362.5 and 11362.7 through 11362.83?
Could this be used to argue that sales to medical marijuana patients under 21 years of age is prohibited in unincorporated areas where the local jurisdiction is the county?
Keep in mind, California's current medical marijuana laws are only exempted from the provisions of ROT 2010 in "cities" and with regard to "sales", "tax", "possession", and "consumption" as stated in the Purpose.
Item (k) of this section authorizes "appropriate fees or taxes pursuant to §11302". Could it be argued this was meant to authorize counties to tax medical marijuana even though it is medicine? And even though cities are not required to tax it in order to sell it to medical marijuana patients as stated in the Purpose? Why do items 7 & 8 in the Purpose say "city" instead of "local government"?
If I find this initiative treacherous and confusing, what about the voters? The legislature? The courts?
The potential points of conflict raised here are only a sample of the problems found in The Regulate, Control, and Tax Cannabis Act of 2010 (ROT 2010) by Oaksterdam U.
What's wrong with the Tax, Regulate, and Control Cannabis Act of 2010 (THC 2010)
Unfortunately, upon reflection, the Tax, Regulate, And Control Cannabis Act of 2010 (THC 2010) doesn't appear to offer any more protection to medical marijuana patients than ROT 2010. While this proposition from Tax and Regulate Cannabis California 2010 states first among its intentions to "prohibit furnishing cannabis to minors under the age of 21, except for medical use", the only other place the word "medical" is found in the initiative is in item (h) under Intent which states, "Make cannabis available for scientific, medical, industrial, and research purposes".
Further, while cultivation for personal consumption is permitted and there is no limit defined for personal consumption, nowhere is medical sales exempted from the $50 per ounce tax. §11302(e) states "Only Cannabis commercially cultivated, distributed and/or sold shall be taxed". Does this mean all cannabis that is not grown for personal consumption will be taxed? Are medical marijuana collectives and cooperatives commercial cultivation?
Should these initiatives make the ballot and pass, will the courts determine that the intent of the voters was to replace or supersede Proposition 215 which has withstood every challenge for more than a decade? Why-oh-why couldn't an institution that makes money teaching people the law regarding medical marijuana come up with something as clear, unambiguous, and straightforward as Tom Ammiano's Marijuana Control, Education, and Regulation Act (AB 390)? How did they get through 14 drafts without exempting current California medical marijuana law and, particularly, The Compassionate Use Act of 1996?
What's right with The Marijuana Control, Education, and Regulation Act (AB 390)
AB 390, in Section 1 (h) under intent states:
To exclude from the fees and regulations imposed by this Act marijuana that is for other uses than smoking and ingestion, and to exclude medicinal marijuana from fees under these provisions.
While it does not exclude medicinal marijuana from the "regulations" imposed by the Act, it does exclude it from the taxes and fees. Unlike either proposed initiative, this intent is written into the actual legal code under §34004(a) which states:
However, no fee shall be imposed under this part on marijuana used medicinally with a doctor's recommendation as specified in Section 11362.5 of the Health and Safety Code.
Further, by listing the codes it repeals, and not including California's current medical marijuana laws among them, and as an act of the legislature and not an initiative by the people, AB 390 ensures that Proposition 215 will remain intact.
It should be noted that while AB 390 and THC 2010 have a "statutes repealed" section and do not list existing California medical marijuana laws among these statutes, ROT 2010 has no such section. Instead, it lists the statutes it is not intended to affect and does not include existing California medical marijuana laws among them.
As for the licensing, AB 390 sets limits for a commercial cultivation or wholesale license at $5,000 for the initial application and $2,500 for annual renewal.
How to fix ROT 2010
If the proponents have 15 business days from the time they filed with the attorney general to amend ROT 2010, they still have until the 18th to make amendments.
If I could, I would amend Section 2, B, 7 and 8 by replacing "city" with "local government".
I would also add Health & Safety Codes 11362.5 and 11362.7 through 11362.83 to the statutes ROT 2010 is "not intended to affect the application and enforcement of" under Section 2 C 2.
Under Section 3, change "Notwithstanding any other state or local law" and "Notwithstanding any other provision of law" to "except as permitted under Health and Safety Section 11362.5 and 11362.7 through 11362.83".
Under Section 5, Amendment, add something like "Nothing in this section shall authorize the legislature to amend H&S 11362.5 without approval of the voters."
In addition to THC 2010 and ROT 2010, there is also The Common Sense Act of 2010. The proponents of these three California marijuana legalization initiatives will have until the time they turn in their signatures to withdraw the initiatives from the 2 Nov 2010 ballot. If more than one initiative wins, the one with the highest number of votes will trump the others.
If AB 390 should pass before the 2010 election and these initiatives have not been withdrawn, and if they win, will they be used to supersede AB 390 and dismantle Proposition 215?
For more info:
Office of The Attorney General, State of California - Initiative Measures
The Marijuana Control, Regulation, and Education Act (AB 390) - CA State Assembly | 23 Feb 09
The Tax, Regulate, and Control Cannabis Act of 2010 (THC 2010) - CA Attorney General | 15 Jul 09
The Regulate, Control, and Tax Cannabis Act of 2010 (ROT 2010) - CA Attorney General | 28 Jul 09
The Common Sense Act of 2010 - California Attorney General | 4 Aug 09
Legalize Marijuana in California - The Marijuana Control, Regulation, and Education Act (AB 390)
California Cannabis Initiative - The Tax, Regulate, and Control Cannabis Act of 2010 (THC 2010)
Tax and Regulate Cannabis - The Regulate, Control, and Tax Cannabis Act of 2010 (ROT 2010)
Common Sense for California - The Common Sense Act of 2010
California has three initiatives filed to legalize marijuana - Examiner.com | 10 Aug 09
Marijuana legalization and California initiatives - Examiner.com | 8 Aug 09
Comparing California cannabis/marijuana legalization initiatives - Examiner.com | 31 Jul 09
Oaksterdamn U wants to tax marijuana without limit - Examiner.com | 29 Jul 09
Selling out the medical marijuana movement? - Examiner.com | 24 Jul 09
Tax Prozac not medical marijuana - Examiner.com | 20 Jul 09
Medical marijuana and pizza - Examiner.com | 19 Jul 09
Comments
I am totally against the abuse of medical marihuana at any level or time. These acts should be used with caution and judicial care.
I am totally for the unfettered use of cannabis by anyone of age for medical or recreational reasons.
"If more than one initiative wins, the one with the highest number of votes will trump the others."
If there is enough support for legalization for any of these initiatives to pass, the worst thing that could happen is for more than one to make it on the ballot. The California field poll we hear a lot about had 56% of Californians supporting legalization. If two or more of these initiatives makes it on the ballot, some will vote for one but not the others, or two but not the one they like the least. It won't take many doing this before there is a good bit less than 50% support for any of these initiatives. If more than one makes it on the ballot, differences need to be put aside and people need to vote for both or vote for all three or none will pass.
Great article! The best way to fight prohibition is to get one state to vote on it, pass it and watch the dominos fall. This is our opportunity to put our money where our mouth is. Join us in California by donating or volunteering for the California Cannabis Initiative who is working hard at bringing us the Tax, Regulate, and Control Cannabis Act of 2010 to the ballot box. Lets end this needless war that has drained our local, state and federal treasuries and has destroyed more families and lives than any drug itself could have ever done.
To join or help the fight go to www.californiacannabisinitiative.org
Oscar Chavez
California Cannabis Initiative
San Bernardino County Coordinator
After more than 70 years of the US Government's failure to control the plant or people's use of it, the time is long overdue to properly reschedule it, legalize it, tax it, and actually regulate marijuana. In other words, to manage the substance properly.
The time is now for calm and serious discussion, and if the only argument against legalization is a bunch of "what ifs" then why are we not at least trying legalization? It will be no worse than prohibition because, as any sensible person knows, prohibition is the direct cause for the black market, drug cartels, and higher availability of marijuana to our children.
Vote for politicians who support ending marijuana prohibition. And watch the movie GRASS: The History of Marijuana, as well as The Union - The Business Behind Getting High. Take a moment to open your eyes to the truth about why marijuana was made illegal in the first place. It wasn't done to "protect" citizens from the plant. You might be surprised by the truth.
Rick,
As Craig pointed out to me in an earlier article, get everyone you know to vote for all 3 initiatives, and the one with the most votes will override the other 2. I believe we have a better chance with this that waiting on the CA assembly and the Governor to pass A.B. 390.
Will S.
If you're talking about me, that's not exactly what I wrote. What I wrote was: "In other words, if all three initiatives qualify for the ballot (and you're a registered California voter) you can vote for all of them if you want. The one with the most votes will prevail, and trump the other two. "
That is not the same thing as advising anyone to vote for all three.
Will S.,
I agree that the best chance is with an initiative and that if all three make it on the ballot people need to vote for all three or none will pass. I hope that's what Craig will push for if all three make it. He seems to be awfully critical of the Oaksterdam U initiative and I worry that he's going to turn people off on it so much that many who support legalization won't vote for it. I certainly don't think it's perfect. None of these initiatives are perfect. That one has the most money behind it and thus is the one most likely to make it on the ballot. It's more restrictive than I'd like to see the laws, but at least it's written in such a way that things like the one ounce limit and the 25 square foot limit are just minimums that can be increased by the legislature later. I'd love to see one or all of these things pass. It feels like we are finally getting to the point where mj might be legalized in at least one state. If that happens we'll see it in other states soon.
Rick,
I've probably composed half a dozen or more replies to you, some quite long, and then not posted them. I do think if it were a good law I couldn't poke holes in it.
The fact is, I did make one error in this article, and it's been bothering since I realized it a couple of hours after I published.
It is not correct to say that nowhere in the document is "cultivation" related to the exclusion for current California medical marijuana law. Item 8 under Section 2, Purpose does have the word "cultivation" related to the phrase, "except as permitted..." However, this is the item authorizing cultivation in "cities" that enact taxes specific to marijuana, so it doesn't substantially change any of my arguments.
Personally, I'd have been far more gratified if you'd pointed out this error and debated the merits of my arguments rather than accusing me of having the power to single-handedly thwart ending marijuana prohibition.
Craig, I didn't even notice the error, and I don't think you could single handedly derail legalization. I understand some of the beefs you have with this initiative. I think you go overboard attacking it though, and that's disheartening to see. For several decades now I've been a proponent of legalizing mj, and I'm excited to see it getting to the point that it might happen in another state. I really believe that if voters pass an initiative legalizing in California it is going to have a big impact at least psychologically on the rest of country. California legalizing will make it happen faster for the rest of us. You're caught up in the minutia of the proposed laws. I'm not. I just know that if there is enough support to legalize there is barely enough support and I hate to see fellow "legalizers" trying to kill support for the only initiative likely to make it on the ballot. We're so close but with friends like you, who needs enemies? See what I'm saying?
Yes Rick, I see what you're saying. You're saying you haven't thought about the impact of the law, you don't know what it says and doesn't say, and you don't care if it weakens or destroys Proposition 215. Further, you don't care if the limits and restrictions are unworkable for patients or anyone else, and that "for the good of the movement" I should sit down and shut up.
I've heard it many times before.
Well, that's not exactly what I'm saying. I've read the thing and I don't think it is nearly as bad as you do. You're very critical of it, unecessarily so, and you don't give the other initiatives the same critical treatment, like the constant harping on the "including without limitation" language that was just silly. I have to wonder if this has to do with some sort of personal grudge you have against the Oaksterdam U boys. You're trying to find as much fault as possible with this thing, making mountains out of molehills, seeing bogeymen when there's nothing there. You seem to be grasping for anything to bolster your argument that it won't work, instead of trying to figure out how to make it work. The thing isn't perfect but it is open and vague enough that the problems could be fixed later. I'd like to see you to explore the notion that this thing might work out fine for everyone, but I know you won't because you're on a mission to kill it. This makes no sense to me.
I'm still waiting for you to discuss just one point, to give just one concrete example, to do anything but sling mud and nebulous personal attacks completely without foundation.
Just one point, one example? How about your ridiculous misinterpretation of the "including without limitation" language that we went around and around about? It was obvious that you were dead wrong but you kept going with it. Why should I waste my time arguing with a man on a mission who will not listen to reason? For whatever reason, you hate this proposed ballot initiative and/or the people behind it and you are going to keep trying to kill support for it even when it ends up being the only one on the ballot because it is the only one with any money behind it. Hopefully Californians who support marijuana legalization who run across your writings won't be swayed by your lame arguments. Hopefully the thing passes and California becomes the first of many states to legalize marijuana.
Craig,
I didn't mean for my comment to sound like you were advocating that all registered CA voters, vote for all 3, but that's exactly what I will be telling my friends and family to do. I think if we've got a shot at this then we need to strike hard and fast. To me legalization is legalization, restrictions or not one of these initiatives needs to pass, and I'm going to do everything in my power to make sure that happens. Once again thanks for your help in outlining some of the differences in these initiatives.
Also I believe Rick is probably frustrated like myself about the length of time and overall ridiculousness of cannabis prohibition. Like myself I believe he sees it like this; if there is a chance in hell for one of these bills to pass then so be it, I will do nothing to advocate one initiative over another.
While I do recognize the medical benefits of the plant, I also believe I have just as much right to it as the sick. I have nothing against the sick or dying I just believe that its my god given right to enjoy the benefits of this plant just like anyone else. I am from San Diego but I will not stoop to faking illness to acquire a prescription, and I do not like breaking the law or putting my family in danger for my own personal satisfaction, so one of these initiatives (whichever one, makes no difference to me) is my only hope.
That's exactly right, Will. I'm frustrated as hell with cannabis prohibition. We should have changed these laws a long time ago. Now it finally looks like we are getting close. Legalization in California now would have a huge impact for Californians and the rest of the country. "As goes California, so goes the nation." We would see other states legalize. We would see real debate at the federal level and our opponents would be forced to recognize that legalization is what the people want. We can start changing the debate from whether we should legalize to how we should do it. It would galvanize opposition among the most rabid antis, but it would bring others to our side and encourage those for legalization, to get active, open their wallets and start donating to the cause. For decades many have been disillusioned, believing it's just never going to happen so it's not worth going out on a limb for, but legalization in California would help change that.
Craig is militant against the Oaksterdam U initiative and I don't get it. He calls it a "Trojan Horse," which was a sneak attack by the Greeks disguised as a gift. I don't think the Oaksterdam guys are the Greeks here. Their initiative isn't perfect, but it is the only one with big money behind it so it's really the only one with much chance of making it on the ballot.
It's really not that bad of an initiative. It is open enough that limits on growing areas and possession amounts can be increased, but not decreased, by the legislature. Craig worries that protections built in for medical marijuana won't be enough. There is overwhelming support for medical marijuana. I doubt we see big problems because the people wouldn't support big government actions that attack mmj. Any problems that arise can be fixed either by legislative action, new ballot initiatives, or just by favorable interpretations by local authorities like we've seen with medical marijuana in many parts of the states.
Support for legalization is going to keep growing, if anything because the old people who grew up before pot use took off in this country are dying off and being replaced as voters by younger people much more likely to support legalization. People are getting fed up with the way we blow fortune trying in vain to keep up the ban and cause every problem Alcohol Prohibition caused and then some. We're going to see legalization in many states and we're going to see more and more federal politicians getting on board. Whatever law we start out with at first will change. They will be tweaked. We'll start out with compromise laws that probably will be pretty restrictive at first, but as time goes on people will see the restrictions make no sense and things will open up and laws will be improved. We've got to start somewhere. Less than perfect legalization would be a hell of a lot better than what we have. We can improve things from there, and "ROT 2010" is not that bad of a starting point.
(Coincidentally, there is only one city/county in California and that is San Francisco.)
CITY AND COUNTY = LOS ANGELES
CITY AND COUNTY = ORANGE
CITY AND COUNTY = SAN DIEGO
CITY AND COUNTY = SAN BERNARDINO
CITY AND COUNTY = RIVERSIDE
Are you high?! Oh wait, sorry, I forgot, I guess you guys don't consider SoCal part of the state, do you. I'm ashamed I'm originally from NorCal...
San Francisco is the only city in San Francisco County. None of the other counties you named have only one city that encompasses all the area of the county.
I guess I wasn't clear. There is only one city AND county in California, San Francisco.
The counties of Orange, Los Angeles, San Diego, etc., are all divided into numerous cities and/or unincorporated areas.
Only San Francisco City and County share the same geographic boundaries.
Umm... How about Los Angeles city/county?
Charlie, I don't feel like counting them at the moment, but there are something like 100 cities and towns in Los Angeles County. There are also unincorporated areas in Los Angeles County.
There is only one city in San Francisco County, and there is no unincorporated area in San Francisco County.
Has anyone here considered the implication of opening the door to agribusiness's interest in patenting our beloved plant. Consider how Monsanto has accumulated the majority of seed companies around the world, changed a DNA sequence here or there and now OWNS the plants, seeds and any cross pollinated varieties that are unlucky enough to be in the vicinity of their GM garbage....
The current climate here in California is ideal, anyone can obtain a recommendation for medical cannabis at a nominal cost and we have a very dedicated community that protects and cherishes the diversity of this plant and it's many varieties. If we open the door to corporate interests we will lose much of that diversity due to the patenting of varieties by uber-wealthy agribusiness companies such as Monsanto.
If you can't afford $75 for a doctors recommendation how can you afford to buy cannabis from street dealers? This proposition is flawed in many ways but mainly because it will open the flood gates to corporate interests and will severally degrade the diversity of varieties we know enjoy.
Can you say Roundup Ready Cannabis? That is a future i will fight against.
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