ASA in the News

Smell the Truth, San Francisco Chronicle

Sufferers of chronic or painful illnesses had something to rejoice about in 1996. After years of debate, California voters passed an initiative known as the Compassionate Use Act, creating criminal defenses against prosecution for crimes like the use and cultivation of marijuana for medical purposes.

In the years since the legalization, there has been a sort of “green rush” on medical marijuana. There are now more than 1,000 marijuana dispensaries in the Los Angeles-area alone. If you are interested in starting your own medical grow operation, this article is intended to provide a broad overview of the main issues you will need to consider.

The main prerequisite to starting your own grow operation is that you have a doctor’s recommendation for the medical use of cannabis. Once you have been recommended marijuana by a doctor, you are allowed to possess and cultivate marijuana for your own medical needs. You should then immediately apply for a medical marijuana identification card. The purpose of this card, which is issued by the California Department of Health, is to advise law enforcement that you are part of California’s Medical Marijuana Program, and therefore hopefully prevent you from getting arrested for possessing weed. There is a small fee to get the card; the fee averages about $50.

California, and each county within the state, used to have specific guidelines about how many plants a patient could grow at any one time. However, in 2010 the California Supreme Court ruled that these guidelines were illegal, and that patients could possess or grow as much marijuana as is reasonably related to their medical needs. In other words, if you somehow manage to find a doctor who is willing to say that you legitimately need to smoke 20 pounds of marijuana a day, the authorities cannot step in and say that is too much. (Although that doctor probably won’t be practicing medicine much longer!)

The basic rule of thumb is that you can grow as much as you legitimately need to treat the medical condition for which you have the doctor’s recommendation. The California Attorney General’s guidelines are six mature plants or 12 immature plants.

But what if you want to start a larger grow operation? Can multiple patients combine their needs and resources and have a single grow for all of them? The answer is YES! These are called “cooperatives” (or sometimes “collectives”) under California law, and they are perfectly legal, provided they operate within certain parameters. As is the case when growing for your own personal use, a collective grow operation should grow no more than is medically necessary for the members of the cooperative. However, there is no limit to the number of people who can be members, and not all members have to participate in the actual cultivation.

So now you have your grow operation up and running, and you want to set up your dispensary, which is a storefront operation distributing medicine to the patient members of your collective. There are a number of things you need to take into consideration if you want this to be as legal and above-board as possible:

Type of Business Entity

A medical marijuana dispensary must be organized as a non-profit. Although some dispensaries have been set up as other types of business entities, such as sole proprietorships or partnerships, this is not advisable – a non-profit is the only form that is recognized as legal under California law for this type of business. Non-profits are subject to specific laws and regulations, so it is important that you consult with a business attorney in your area.

Location

You may have heard the mantra that the three most important things in real estate are “location, location, location!” This is doubly true when it comes to medical marijuana dispensaries. A complex patchwork of state, county, and local regulations all come into play. The state, as well as most counties, regulate where a dispensary can operate. Some counties have banned new dispensaries from opening altogether. A helpful list of city and county ordinances has been compiled by Americans for Safe Access, and is available here.

In addition to applying for your business license and making sure your storefront complies with all state and local laws, it is especially important that you take care not to disturb your neighbors. According to California NORML, neighborhood complaints are the number one cause of police raids.

If you are renting rather than buying, you’ll need to make sure that your landlord is up to speed and is okay with what you are doing. The last thing you want to do is get all set up and then evicted!

Because of the complexity of these issues, consultation with an experienced attorney is highly recommended.

You are Still in Legal Jeopardy

Finally, it cannot be stressed enough that although growing, using, and providing medical marijuana is legal under California Law, it is all still entirely illegal under federal marijuana law. While the current administration has made statements to the effect that they will not go after marijuana operations that are legal in their respective states, the feds continue to harass and shut down dispensaries and criminally prosecute growers and providers. Federal criminal penalties are extremely harsh, and the feds have practically unlimited resources at their disposal. Tread carefully! To avoid attracting the attention of the feds, your organization should keep a low profile, and make sure that everything you do complies with California law. Compliance with California marijuana law will not help you in the unfortunate event that you get hauled into federal court, but it may help prevent you from coming to the attention of the feds in the first place.