Pages tagged "Regulations"

  • Medical Marijuana Patients Missing from California Supreme Court Oral Arguments

    In a highly-publicized and widely-watched medical marijuana case, the California Supreme Court heard oral arguments yesterday on whether municipalities should be able to ban local medical marijuana distribution, an activity deemed legal under state law. For all of the controversy and strenuous arguments made on both sides of the issue, those who stand the most to lose -- medical marijuana patients themselves -- were completely ignored.

    In the case City of Riverside v. Inland Empire Patients Health and Wellness Center, the abstract but quantifiable impact of dispensary bans is that tens of thousands of patients are left without safe and legal access to their medication, mainly as a result of hostile or reluctant local officials. Today, more than 50 localities in California have adopted ordinances regulating the lawful distribution of medical marijuana, while more than 200 of the state’s cities and counties have banned dispensaries outright. For the past 7 years, city councils and county boards of supervisors have passed bans with complete disregard to the impact on their most vulnerable residents.

    From a practical standpoint, patients who live in cities where dispensary bans exist and who cannot grow it themselves or find someone to grow it for them are stuck with an unfortunate dilemma: how to obtain a medication that is legal under state law. Every time a dispensary ban is unreasonably and arguably illegally imposed, hundreds if not thousands of patients wake up the next morning not knowing where they’re going to get the medicine they rely on. These patients are commonly forced to either go without their medication, travel long distances to obtain it, or engage with the illicit market as one of the few alternatives to such distribution prohibitions.

    The California Supreme Court ultimately focused on two issues: whether medical marijuana distribution is protected activity under the scope of California’s medical marijuana law, and, if so, whether local dispensary bans are preempted by state law.

    Much time was spent dissecting the first issue as it relates to the statutory language of the law. Did the Medical Marijuana Program Act (MMPA) passed in 2003 sufficiently spell out the mechanism for lawful distribution in the state? Did the statutory language sufficiently protect such distribution from local bans? Or, did local bans frustrate the purpose of the law, which is to uniformly implement a functional medical marijuana program?

    Little time, however, was spent reviewing existing case law that the High Court at one time or another had the chance to review. Plaintiffs’ counsel, J. David Nick, raised People v. Urziceanu and People v. Colvin, and would likely have raised People v. Jackson if the Justices hadn’t cut him off, to show that the legality of dispensaries was well established. Unfortunately, the City of Riverside’s false claim that no case law existed to substantiate the legality of storefront distribution went unchallenged.

    Some Justices, Judge Goodwin Liu in particular, questioned whether the MMPA was anything more than limited immunity from criminal prosecution. If so, the Court could logically evade the decision of whether cities can ban distribution. The California Supreme Court ruled previously in Ross v. Ragingwire that no right to civil action existed for patients and the City of Riverside missed no opportunity to invoke that decision. However, neither party nor the court raised an important caveat to Ross. In Butte County v. Superior Court, a landmark appellate decision that was denied review by the High Court solidly affirmed the civil rights of patients under state law. The Butte County Court held that the Medical Marijuana Program Act passed in 2003 was not limited to criminal immunities; it also could be applied more broadly in the civil context under certain circumstances.

    Regardless of how the Court rules in Riverside, patients will continue to demand uniform application of the law and a right to safe and legal access to their medicine. The patchwork system that currently exists in the state, with far more municipal bans than regulatory ordinances, has perverted the will of California voters and jeopardized the health and safety of countless patients.

    The California Supreme Court has a chance to assist in the equitable implementation of California’s medical marijuana law. Sensible public health policy dictates that municipal governments should have the right to regulate safe and legal distribution of medical marijuana, but not ban that activity outright. The High Court knows what to do and should take decisive action, ensuring against any further harm resulting from the current haphazard and largely punitive policy on local medical marijuana distribution.
  • Massachusetts Medical Marijuana Slowly Moving in the Right Direction

    As most of you know, Massachusetts passed a ballot initiative to legalize medical marijuana (MMJ) last November 6.  Although we were optimistic it would pass, we were very pleased when 63% of the voters, nearly 1.9 million people voted for this.

    The Massachusetts Medical Society (which has over 24,000 physician members) had been against the ballot initiative from the campaign’s infancy.  I attended their biannual meeting last November 30, where they were voting on whether to recommend delaying implementation of the ballot initiative, and if they should recommend physicians turn in other physicians to the licensing board if they recommended medical cannabis.



    With the help of Steph Sherer, we came up with a forceful argument to gain their support.  I presented the “Conant vs. Walters” legal decision, which protects physicians against legal action if they recommend cannabis to patients.  As well as info about the physician education course, which is taught by world-class physicians, that ASA has put together.  I said "the only education most, if not all of the physicians in the room have on medical cannabis is what they learned from smoking it in their dorm rooms during college."  There was laughter from the audience, but my point was well understood.  I further noted that the Massachusetts Medical Society has an obligation to its members to educate them about this medicine.

    Thankfully, my words were heeded that day and the Massachusetts Medical Society voted against both delaying implementation as well as recommending their members turn in other doctors who recommend medical cannabis.

    The November ballot initiative to legalize medical marijuana required regulations be issued by May 1, to implement the law.  This deadline will most likely be missed due to complexity of trying to finalize rules.  Though the laws went into effect at the beginning of the year and patients can grow a limited amount, dispensaries will not be allowed to operate until regulations are set.

    I met with the officials at the Massachusetts Department of Public Health, on January 22, regarding this issue. They were happy to receive the AHPA guidelines and even requested additional information on an array of issues.  I was especially happy because these regulators were genuinely grateful for the help and information we were offering. I left the meeting with the impression that they are working carefully and thoughtfully to create a medical cannabis program that will well serve patients’ needs in our state.

    Although there will always be those that vehemently oppose safe access, my experiences working on implementation in Massachusetts have shown me that so long as you are truthful, passionate about the cause, and assume best intentions, things have a way of moving forward in a positive direction.
  • California Supreme Court Deems Legality of Storefront Medical Marijuana Dispensaries “Final”

    "The matter is now final," according to the California Supreme Court.  On Wednesday, the California Supreme Court denied requests from the League of California Cities, the San Diego District Attorney's Office, the Sacramento District Attorney's Office, the Sonoma District Attorney's Office, the Los Angeles District Attorney's Office and the Los Angeles City Attorney to depublish or review the published decision in People v. Jackson.

    After years of struggling over the issue, the Court of Appeal held that storefront dispensaries are legal under California law, so long as they operate on a not for profit basis and adhere to certain corporate forms.  This decision establishes that storefront dispensaries are unquestionably legal under California law and that localities cannot continue to rely on their now-discredited view that all sales of medical marijuana are illegal in order to support their ongoing attacks on medical marijuana dispensaries.

    Another important impact of the appellate court ruling is providing medical marijuana providers with a clear defense to state criminal charges. Specifically, the ruling held that in mounting a defense at trial:
    Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the [Medical Marijuana Program Act] had been established.

    The court further held that:
    [T]he collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court's ruling, the large membership of Jackson's collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense.
  • California Supreme Court picks February 5th for oral arguments to decide whether municipalities can ban local distribution of medical marijuana

    The California Supreme Court scheduled oral arguments this week in a case that has received widespread attention inside and outside of the medical marijuana community. The appellate court ruling in City of Riverside v. Inland Empire Patients Health and Wellness Center is being reviewed by the High Court in order to address the issue of whether municipalities can use zoning regulations to ban outright the local distribution of medical marijuana.

    Oral arguments in the Riverside case will be held in a special session of the California Supreme Court on Tuesday, February 5th at 10:15am at the University of San Francisco (USF) School of Law.

    In addition to the Riverside case, a number of other appellate court rulings from southern California focusing on the same issues were granted review by the Court, including County of Los Angeles v. Alternative Medicinal Cannabis Collective, 420 Caregivers v. City of Los Angeles, City of Lake Forest v. Evergreen Holistic Collective, and People v. G3 Holistic.

    Notably, two of these appellate rulings held that local officials may not ban distribution and must develop regulations instead. Specifically, the County of Los Angeles decision from July 2012 overturned a local ban on dispensaries, reversing the lower court’s preliminary injunction from the previous year. The appellate court in County of Los Angeles held that “medical marijuana collectives…are permitted by state law to perform a dispensary function,” and that “[Los Angeles] County’s total, per se nuisance ban against medical marijuana dispensaries directly contradicts the Legislature's intent.” The Court further concluded that, a “complete ban” on medical marijuana is “preempted” by state law and, therefore, void.

    Yet, other appellate court decisions have sided with municipal governments in their cynical effort to push out any form of safe and legal access to medical marijuana.

    Rest assured, however, that Americans for Safe Access will work with the lawyers in the Riverside case to obtain a ruling from the California Supreme Court favorable to patients across the state. Just as with its amicus ‘friend of the court’ brief filed last year in the Riverside case, ASA will continue to fight for safe access. “While municipalities may pass reasonable regulations over the location and operation of medical marijuana collectives, they cannot ban them absolutely,” read ASA’s amicus brief. “These bans thwart the Legislature’s stated objectives of ensuring access to marijuana for the seriously ill persons who need it in a uniform manner throughout the state.”

    See you at USF next month!
  • Cutting through the legal quagmire, patients demand safe and legal access to medical marijuana



     

     

     

     

     

     

     

     

     

     

    Last Friday, patient advocates Americans for Safe Access (ASA) filed an amicus ‘friend of the court’ brief in City of Riverside v. Inland Empire Patient’s Health and Wellness Center to convey the urgent need for safe and legal access to medical marijuana. In what is possibly the most important issue currently facing hundreds of thousands of patients in California, ASA urged the State Supreme Court to reject the notion that municipalities can ban local distribution of medical marijuana, thereby cutting off access. Specifically, ASA argued in its brief that:
    While municipalities may pass reasonable regulations over the location and operation of medical marijuana collectives, they cannot ban them absolutely. These bans thwart the Legislature’s stated objectives of ensuring access to marijuana for the seriously ill persons who need it in a uniform manner throughout the state.

    In addition to the Riverside case, the State Supreme Court is reviewing the Pack v. City of Long Beach decision, which involves issues of federal preemption. Adding even more appellate decisions to the mix, last week the Second District issued two conflicting rulings. One of the rulings in County of Los Angeles v. Alternative Medicinal Cannabis Collective held that dispensaries were legal under state law and that municipalities could not ban them.

    At the time, ASA Chief Counsel Joe Elford said in a prepared statement that:
    The court of appeal could not have been clearer in expressing that medical marijuana dispensaries are legal under state law, and that municipalities have no right to ban them. This landmark decision should have a considerable impact on how the California Supreme Court rules in the various dispensary cases it’s currently reviewing.

    There are a staggering 178 cities in California that have completely ignored the needs of patients in their community by adopting bans against medical marijuana dispensaries. However, there are more than 50 municipalities, which have adopted regulatory ordinances that have safely and legally accommodated for the needs of their patients, as well as other members of their communities. An increasing number of studies also show that regulating dispensaries will decrease crime and increase the quality of life in surrounding neighborhoods.

    Patient advocates are not putting all their eggs in the California Supreme Court basket. There is still an effort afoot to pass legislation next year to regulate medical marijuana at the state level. The statewide ballot initiative process is yet another option available to patient advocates and one that will definitely be considered in the months ahead.
  • The fight for regulations in CA goes on



    Americans for Safe Access (ASA) and our allies have been fighting for medical cannabis regulations to protect safe access to medicine and patients’ rights since 2002, and we are going to keep fighting that important battle despite a setback today. Assemblymember Tom Ammiano (D-SF) has withdrawn AB2312, a bill that would have created a state board to regulate medical cannabis cultivation and provision. That means AB 2312 will not proceed to a vote by the full Senate this year.

    We have come a long way towards passing this bill, and our growing coalition of allies is poised to move forward at the ballot box or in the legislature next year. Polls show that 77% of Californians support regulation and control of medical cannabis, and AB 2312 had some influential support. UFCW National Medical Cannabis and Hemp Division, UFCW  Western States Council, UFCW Local 5, the AFL-CIO, and the California Medical Association all supported the bill.


    Research conducted by ASA and sixteen years of experience show that sensible regulations for medical cannabis preserve community-based access for patients, while reducing crime and complaints around cooperatives and collectives. Although more than fifty localities in California have adopted such regulations, a lack of state leadership has stymied further implementation of the Compassionate Use Act (Proposition 215) and the Medical Marijuana Program Act (SB 420) in communities statewide. Uncertainty led to calls from the courts, the California Attorney General, and local lawmakers for leadership and clarity. AB 2312 would have helped answer those calls by securing safe, well-regulated access all over California.

    We made it further this year than anyone thought we would. No one expected this bill to be approved by two committees and the full Assembly. The credit for that goes, in large part, to more than 300 ASA members and allies who visited every legislative office in the Capitol on May 21st, as part of the biggest medical cannabis lobby day in California history. Those citizen advocates were talking with lawmakers and staff just days before crucial votes on AB 2312, and their voices made all the difference.

    Many good bills take more than a year to pass. We can definitely use a few extra months to improve this bill for next year. We need to be sure that taxation, if necessary, is limited; and we have to make it difficult (or impossible) for cities and counties to ban patients’ associations outright. We also have a lot of work to do to build support among legislators and constituents. And given that many people fear statewide regulation, we can use this extra time to keep talking about the benefits and drawbacks of a state model, in hopes of broadening the reform coalition. We must also decide whether the voter initiative process is a sound strategy in California, and if We can we agree on the content and raise the money we need to get on the ballot in 2013 or 2014.

    I want all of you to be a part of that ongoing conversation about what comes next in California. Please sign up for ASA’s announcement lists, participate in our Discussion Forums, and follow our blog.

    I want to say a very special thank you to our allies at Californians to Regulate Medical Marijuana – United Food and Commercial Workers Union Local 5, California NORML, Emerald Growers Association, and the Coalition for Cannabis Policy Reform. You guys did a great job! I also want to say a special thank you to Assemblymember Tom Amnmiano and his staff for their hard work and patience. And most of all, thank you to the thousands of ASA members and friends who wrote letters, sent emails, signed petitions, visited lawmakers, and donated generously to this effort. That is what it takes to get this work done!
  • LA at a Crossroads

    The Los Angeles City Council will choose between two competing motions concerning medical cannabis in the near future, and the outcome will have long-term implications for legal patients in the city. One path leads to an outright ban on patients’ cooperatives and collectives; while the other may settle dozens of lawsuits, complies with existing case law, and fulfils the voters’ will for a safe and regulated access program. It should be an easy choice. But everything about medical cannabis is controversial in the state’s largest city, and what happens here could have repercussions around the state and nation. That is why Americans for Safe Access (ASA) and a growing coalition of advocates, organized labor, and other stakeholders are gearing up for what may be the last battle for safe access at City Hall.



    ASA has been working with the city since 2005 to stop a ban on legal cooperatives and collectives and adopt workable regulations. This is an important, because research conducted by ASA and the experience of the last sixteen years show that sensible regulations reduce crime and complaints, while preserving access for patients. That is what voters want. A poll conducted by EMC Research last November demonstrated that seventy-seven percent of voters favor the regulation and control of medical cannabis.

    City Council Members Jose Huizar and Mitchell Englander made a motion to ban all medical cannabis patients’ cooperatives and collectives in the city – even those that have tried in good faith to comply with the city’s troubled regulatory scheme. Council Members Huizar and Englander call their motion the “gentle ban,” because it would “allow” legal patients to grow their own medicine at home. That right is already guaranteed under the Compassionate Use Act (Proposition 215) and further protected by the Medical Marijuana Program Act (SB 420). The term “gentle ban” is a face-saving euphemism. The Huizar-Englander motion would create an ordinance that bans all patients’ associations, but gives no other option to the large majority of patients who do not or cannot grow their own medicine.

    There is an alternative. Council Member Paul Koretz and Council President Herb Wesson have introduced a competing measure that would allow for approximately one hundred patients’ cooperatives and collectives distributed throughout the city. Their motion complies with a recent Appellate Court decision, Pack v. City of Long Beach, which if upheld by the California Supreme Court, will prevent cities from authorizing conduct prohibited under federal law (like providing medical cannabis). This “limited immunity” approach may also help settle dozens of lawsuit brought by the City of Los Angeles and patients’ associations. Better still, the Koretz-Wesson motion would create an ordinance that finally regulates medical cannabis provision in the city – something most Angelinos still want to see.

    Which option the City Council chooses may depend on what patients and advocates do right now. The City Council could consider one or both of the motions at any time. Public outcry has prevented medical cannabis opponents on the City Council and at the City Attorney’s office from fast-tracking the so-called “gentle ban” and derailing the “limited immunity” option so far. The growing coalition of medical cannabis allies now includes the influential UFCW Local 770, which represents workers at more than twenty Los Angeles patients’ associations. UFCW Local 770 hosted a press conference on the issue at City Hall last week, and their action alert for City Council Members is helping keep pressure on City Hall. The voice of organized labor is just one of many to join a growing coalition committed to defeating the “gentle ban” or overturning it with a voter referendum.

    This is a fight Angelinos have to fight, but everyone should be paying attention. If medical cannabis opponents succeed in banning patients’ cooperatives and collectives here, it will be a green light for other jurisdictions. We need to stop the momentum for bans in Los Angeles, before it reaches a critical mass. The City of Los Angeles is a trend setter, for better of for worse. Patients and advocates nationwide will suffer if the story of Los Angeles is one of confusion, delay, litigation, and finally a ban. The Koretz-Wesson motion is a chance to take back the momentum and get this influential city back on track. But it will not happen if those of us in the city do not dig in our heels and fight before the choice is made.

    What can you do? Use the UFCW Local 770’s online action alert to send a message to City Hall right now. Then plan to join the Los Angeles Chapter of ASA on Saturday to plan the next steps. The LA-ASA meeting is at 1:00 PM on Saturday, June 16, in the Community Room (#152) at the West Hollywood Gateway Mall located at 7100 Santa Monica Blvd. in West Hollywood, CA 90046.
  • CA Assembly Approves Landmark Medical Cannabis Bill

    [caption id="attachment_2715" align="alignleft" width="158" caption="Tom Ammiano"]
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    The California Assembly just approved AB 2312, a bill by Assemblymember Tom Ammiano (D-SF) that will create a statewide board to regulate medical cannabis. The Senate will take up the bill next. Advocates are thrilled, and vow to build on this momentum to make sure the bill is also approved in the Senate and signed by Governor Brown. The campaign to adopt AB 2312 has already seen a dramatic expansion in the coalition for medical cannabis, including the influential United Food and Commercial Workers Union, and the largest medical cannabis citizen lobby day in state history.

    Assemblymember Ammiano introduced AB 2312 in response to growing calls for statewide clarity from elected officials and the courts. The public wants legislation like this, too. A poll conducted by EMC research shows that 77% of Californians support the regulation, control, and taxation of cannabis. The nine-member appointed board created by the bill will be charged with developing, implementing, and enforcing statewide regulations – something that is already underway in other states where medical cannabis is legal. The Author and advocates anticipate that greater consistency will help to address ambivalence about the state’s medical cannabis program and prevent local officials from blocking implementation or calling for federal intervention.

    Americans for Safe Access (ASA) and coalition members are proud of the growing support and increased grassroots participation in the campaign for AB 2312. We call on everyone who supported this important bill to keep working to make needed improvements and get the bill passed by the Senate. And we call on those who are undecided or oppose (including misinformed lawmakers) to take another look.

    Thank you to the thousands of you who called, emailed, and wrote in support of AB 2312. And thank you to the hundreds of you who participated in our Citizen Lobby Day on May 21. We would not have made it this far without you. I also want to say a special that you to our partners at Californians to Regulate Medical Marijuana, Assemblymember Amminao, and his staff, who all worked tirelessly to pass this bill.

    Don Duncan is ASA's California Director.
  • California Court of Appeal Issues Mixed Ruling on Medical Marijuana

    Landmark decision denies localities the right to ban dispensaries outright Last week the California Court of Appeal issued another landmark decision on medical marijuana, which is sure to have a far-reaching ripple effect throughout the state. The Fourth Appellate District ruled in City of Lake Forest v. Evergreen Holistic Collective that localities may not pass outright bans on medical marijuana dispensaries, facilities which a majority of Californian patients rely on for their medication. In its 48-page published decision, the Court of Appeal disagreed with the lower court’s ruling that “local governments may impose a per se ban on medical marijuana dispensaries without contradicting state law.” This is the first time an appellate court in California has rejected the argument that local governments can use their land use authority to prohibit medical marijuana dispensaries from operating outright. The court reasoned that SB420, also known as the Medical Marijuana Program Act (MMPA), allows for medical marijuana dispensaries as a matter of statewide concern, so localities cannot simply ban them. The court’s decision brings into question nearly 200 such bans across the state. Unless or until it’s appealed and taken up on review by the California Supreme Court, the Lake Forest case throws a significant wrench into the efforts of medical marijuana opponents and favors the rights of patients to safely and legally obtain their medication. That said, the Lake Forest decision was a mixed bag for the medical marijuana community. Even while agreeing with another recent landmark decision in People v. Colvin, that “a patient or primary caregiver [need not] personally [] engage in the physical cultivation of marijuana” in order to enjoy the protections of California law, the Lake Forest court held that dispensaries must cultivate all of the marijuana they sell on-site.
    [W]e conclude off-site dispensaries are not authorized by California medical marijuana law because nothing in the law authorizes the transportation and possession of marijuana to stock an off-site location.
    Unfortunately, in this regard, the Lake Forest court got it wrong. The MMPA explicitly protects patients from arrest and prosecution for transportation of marijuana when engaged in collective medical marijuana activity.  This part of the court’s decision is not only bad public policy, but has no basis in the law.
  • The Ongoing Saga of Federal Interference in Washington State & Push Back from Congress



     

     

     

     

     

     

     

     

     

    Earlier this year, on April 21st, the Washington State legislature passed SB 5073, a bill that would have established a licensing system for the dozens of medical marijuana distribution centers that existed to provide much-needed medication to thousands of patients throughout the state. Notably, the legislature passed the bill after Governor Christine Gregoire sought and received feedback from the Obama Justice Department. U.S. Attorney Michael Ormsby wrote that growing facilities, dispensaries, landlords, financiers, and even state employees “would not be immune from liability under the CSA (Controlled Substances Act).” In other words, anyone remotely connected to the production and distribution of medical marijuana could be criminally prosecuted under federal law. Yet, the legislature must have seen through these threats of intimidation because it passed SB 5073 anyway.

    Less than a week after SB 5073 was passed, on April 27th, U.S. Congressman Jay Inslee (D-WA) sent a letter to Attorney General Eric Holder, seeking “further clarification” on the Justice Department’s position on “federal prosecution in states that have enacted laws authorizing medical use of marijuana.” Specifically, Congressman Inslee sought clarification on whether the Justice Department would really “prosecute a state employee who is operating in full compliance with SB 5073.” Unfortunately, nearly 6 moths later, Congressman Inslee is still waiting for a response.

    Not-so-coincidentally, a day after the congressman sent his request for clarification, the federal government conducted several aggressive law enforcement raids in Spokane, Washington and later indicted multiple dispensary operators under federal law. A day after that, Governor Gregoire vetoed the parts of SB 5073 that included the establishment of medical marijuana production and distribution regulations.

    Apparently, this was a thought-out, well-conducted strategy by the Obama Administration to undermine the efforts of Washington State legislators to establish sensible public health policy with regard to medical marijuana. And Washington is not alone. Similar derailments of public health policy happened in Arizona, California, Montana, and Rhode Island, to name a few.

    Thursday, Congressman Jay Inslee sent a follow-up letter to Attorney General Holder, reminding him that the Justice Department has:
    [F]ar more critical functions than preventing some of our Nation’s most vulnerable residents from getting the relief they need.

    Once again, Congressman Inslee asked for:
    [A] detailed justification as to why the Justice Department is focusing such a substantial portion of its limited resources in this area.

    This is yet another example of the push back from federal legislators on President Obama’s confusing war against medical marijuana. He would do well to respond and, better yet, President Obama should reconsider his harmful and indefensible policy.