Senator Mark Leno, 07/18/2012
This correspondence is a request for your Office, in possible coordination with John Vasconcellos, to please consider issuing another Letter of Intent regarding specific matters contained within the M.M.P.A. My consulting firm has encountered an increasing number of district attorney offices and law enforcement agencies throughout California conducting similar misapplications of law (we provide Court Services, among other things). I believe that a Congressional Letter of Intent may once again be the simplest way to assist our Courts with their reasoned interpretation of our compassionate use laws and to set the public record straight, regarding the following matters:
1) Section 11362.775 of California’s Health and Safety Code, states that “Qualified Individuals who associate within the State of California in order collectively or cooperatively to cultivate (cannabis) for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions…”. The opponents of a well regulated medical cannabis industry have routinely misinterpreted this statement to mean that qualified individuals may only associate together merely for the purpose of cultivation, but not for the other stated purposes in the statute. My hope is that you can address this matter, and help explain that the main purpose of this section was to ensure that qualified individuals are protected from Sanctions that are based on their formation of Associations, and that the operative words here are really “qualified individuals who associate in the state of California…shall not solely on the basis of that fact be subjected to criminal sanctions.” Prosecutors regularly assert this argument based on a misreading of the words “the basis of that fact.” This of course makes no sense, as the C.U.A. already exempts qualified individuals from cultivation and possession charges. Clearly, the meaning of Section 11362.775 was to provide qualified immunity from seven statutes, yet only one of those protections (cultivation) is mentioned in the first part of the sentence, as a reason for qualified patients to associate together. I believe that we can rely on “the basis of that fact”, to show that only one fact is being represented here: that qualified individuals are protected from criminal sanctions that could otherwise apply to them because they are associating together (rather than acting alone), instead of prosecutors’ assertion that patients may only associate together in order to cultivate (cannabis) for medical purposes, but may not associate together for any other purposes (including but not limited to those listed in 11362.775).
2) The mention of Collectives and Cooperatives in the M.M.P.A. are both distinctive and specific. Many legal minds have grappled with the differences, for the purposes of defending clients who have legally formed one or the other, and who are relying on the presentation of such formation documents and testimony as evidence of their compliance with the M.M.P.A. Some prosecutors have misread the Statute to imply that only Cooperatives exist, and that Collectives are some unknown or rare type of entity that is impossible to define. Or they assert what a Collective should be (my favorite is that a Collective is “a farm in a Communist Country,” since nobody in California could ever meet such a requirement). Would you please help to define the use of these words (collective and cooperative), as they are contained within the M.M.P.A., and in accordance with the California Corporations Code and other existing Statutes? For example, Collectives are legally defined as an “Unincorporated Association” under the C.C.C. These types of Associations all share some features with their more complex cousin (the Cooperative), but are also more flexible for smaller groups and less costly to form. An Unincorporated Association must have a mission statement, signed membership agreements or other documents that express its purpose(s). A Cooperative is also expressly defined in the C.C.C., as either a Consumer Cooperative, or as an Agricultural Cooperative. Both of these are well suited for use in the cannabis industry, each in their own way. If you could shed some light onto the uses of these terms, in accordance with existing California laws, I think it could help avoid a lot of unnecessary public resources being wasted in our Courts. Police and prosecutors have been allowed to postulate their own, unique definitions of the words contained within the C.U.A. and the M.M.P.A., and this is a great example. Please help us to reclaim the proper uses of our words, and to defend the Truths they contain. If associations of patients undergo the proper steps in forming a Collective or a Cooperative, and are recognized by our Secretary of State and by other State or County Agencies, there should be no further hoops to jump through.
This would indirectly help to solve another problem at the same time. Prosecutors often argue that Section 11362.765(c), which authorizes certain financial compensations for primary caregivers, somehow forbids Cooperatives and Collectives from all economic activities whatsoever. The argument basically goes, “since the organization isn’t a primary caregiver, any compensation their employees receive, any investments their members make and any bills their association pays, are all just evidence of marijuana sales and criminal conspiracy.” With a proper description of “Collective” and “Cooperative”, it will be easier for defense attorneys and patient advocates to argue that the rules applied to similar organizations in other industries should be applied to this industry, and that there’s no need to reinvent the wheel, in terms of adopting proper regulations. Every other type of Collective or Cooperative, whether for profit or not-for-profit, has the right to pay certain employees, to contract with needed service providers, to purchase needed materials, to pay their bills and to maintain a bank account, without running the risk of arrest for doing so.
3) Many City Councils and Boards of Supervisors have moved to “ban” medical cannabis related activities, to enact “Moratoriums” on such activities, or to declare such activities to be a “Public Nuisance”, subject to local abatement proceedings. I believe that reaffirming the meaning of the word “Association”, as it’s used in the M.M.P.A. could help to solve this problem as well. We have had some recent Court victories in regards to dispensary bans and certain rights of the members of Collectives and Cooperatives, and nuisance ordinances are now starting to be addressed. However, many cities and counties have mistakenly defined “Associations” to mean only “dispensaries”, and in so doing, they have failed to differentiate between dispensaries, farms, lodges or any other types of patient organizations. They have actually restricted patients’ rights to associate any purposes related to their qualified status (including educational, social, medical or political purposes). If you read the language of these local ordinances, etc., you will find that I’m correct. These were all ghost-written by certain law Enforcement Associations and then passed onto city and county representatives throughout the State, over the past several years, so it’s no surprise that they weren’t thinking about peoples’ rights at the time. Our right to associate together, for any lawful purposes (including but not limited to the State-sanctioned cultivation, procurement and uses of cannabis), are a key to challenging these misguided local ordinances and to upholding patients’ rights.
Would you please include a description of the Rights of Association, as referenced in the M.M.P.A. and defined under existing California laws, in your Letter of Intent? I believe that by stepping outside of their proper Zoning Authority (where local bodies define their own zoning codes and how certain activities are regulated according to those codes), and by instead encroaching on the rights maintained by the People, municipalities have opened the door to additional legal challenges. Some have already challenged their right to issue bans, moratoriums and nuisance ordinances as a challenge to the legal preemption of the State of California. I believe an additional argument that can be made, because the way they’re currently written, these cities and counties have literally banned qualified individuals from associating together at all.
To summarize, I am asking your consideration to issue a new Letter of Intent regarding the M.M.P.A. (in accordance with John Vasconcellos, if he will lend his support). This letter is needed to address three matters: That the “one fact” referenced in Section 11362.775 of California’s Health and Safety Code (which is the primary basis for qualified individuals not being subjected to the seven listed state criminal sanctions) is that they associate together in order to better meet their individual needs, and; to describe further the legal meanings, of the words “collective” and “cooperative”, as they apply to the M.M.P.A., and; describe the Rights of Association that our citizens enjoy, under the Constitution and Laws of the State of California.
4) In closing, I wanted to ask your consideration of another matter. Please co-sponsor a Resolution, defining medical cannabis production in California (when conducted in accordance with state laws) as “Agriculture”. If such a resolution were passed in California, it would send a clear message to state regulators and be a useful tool in the furtherance of developing cannabis taxation and regulation strategies. It would also help to expand insurance coverage options for cannabis farmers.
At least one municipal court has ruled that “cannabis is not agriculture,” in order to prevent patients from utilizing existing rules and regulations that are available to other agricultural industries.
Many, if not all of the anti-cannabis “nuisance ordinances” are in violation of their own (county) and our State Agricultural Codes (lands properly used for agricultural production are afforded greater protections against nuisance complaints.)
The Insurance Industry has already issued insurance for indoor cannabis crops, transportation of cannabis, product coverage for dispensaries and more. Coverage for outdoor crops would become possible with a resolution recognizing cannabis as agriculture, because the coverage of outdoor crops in California utilizes some form of State funding or underwriting mechanisms. This would be a huge benefit to both the cannabis and insurance industries in California.
Agriculture is a huge part of California’s economy, and the combined lawful and unlawful production of cannabis makes it the state’s number one cash crop. I’m sure California NORML has access to research that would be helpful to include when garnering support for such a resolution.
I thank you for your time and consideration of these matters. Please have your office contact me, once you’ve had time to consider my requests and have made a decision. Your effort on behalf of protecting the rights of patients has been incredibly beneficial and is always much appreciated.
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