Growing Concerns

CULTURE answers the questions you have about your green thumb regulations

October means harvest time, especially for CULTURE. To honor this month’s theme, the legal corner will address the most common questions patients ask about cultivation.

I just got my doctor’s recommendation. How many plants can I grow?

California Health And Safety Code Section 11362.5(d) states that the protection of Proposition 215 extends to patients who cultivate cannabis for their personal medical purposes. This means that a patient may cultivate an amount that is reasonably related to their medical needs. Unfortunately, this is a very subjective standard. Compounding the confusion for patients is the fact that doctors cannot recommend specific dosages. Also, patients needs vary greatly depending on a patient’s condition, potency of medicine and method of consumption. All of these factors put patients at risk because it’s unclear how much is “too much”, causing patients to lose their legal protections. SB420 was enacted in part to address this very problem.

SB 420 originally set forth limits for cultivation and possession as six mature or 12 immature plants and 8 ounces of processed cannabis. In 2010, the California Supreme Court struck down the SB 420 limits as applied to patients’ right to grow, but upheld their application for other purposes, as “safe harbor” guidelines for protecting patients from arrest. Patients are strongly advised to follow these guidelines.  When a patient ignores the guidelines, law enforcement decides if the patient is cultivating an amount that exceeds their needs. Not surprisingly, law enforcement often deems the patient has “too much” and possesses it for “illegal purposes” and the patient could be arrested.

What if I want to grow for multiple people?

To cultivate on behalf of multiple patients, you must form a collective or cooperative. SB420 authorized patient “cooperatives” or “collectives” to grow, distribute and/or sell medical cannabis on a non-profit basis to their members.  The AG Guidelines and case law outline the rules patients must follow if they wish to lawfully collectively cultivate. It is critical that patients consult an attorney if they wish to engage in larger cultivation projects.

The question remains as to how much medical marijuana collectives/cooperatives are allowed to grow or possess. According to the AG’s guidelines, they can scale the SB420 guidelines in proportion to the number of their members. Collectives are advised to exercise extreme caution about growing large gardens. Be aware that cultivation of 100 plants or more is punishable by a federal mandatory minimum sentence of 5 years. Collectives are advised to stay at 99 plants or less to reduce the risk of federal prosecution.

What is a Grower’s license?

When a patient visits a doctor to obtain their recommendation, they might be offered to “Grower’s License” which claims to allow the individual patient to grow up to 99 plants. This so-called medical marijuana “grower’s license” advertised by doctors for a higher cost is a farce and provides a false sense of protection. The law does not allow a doctor to issue such a license and the document does not have the legal standing implied by the word “license.”

Kimberly Simms is an attorney licensed to practice in California and federal courts. The Law Office of Kimberly R. Simms is a full-service law firm in San Diego with expertise in medical marijuana law. Go to www.simmslaw.com.

Collective Weight

A grower’s license holds the same legal weight as the “regular” medical cannabis recommendation issued by doctors; and only allows a patient to cultivate an amount reasonably related to their medical need. Law enforcement, judges and juries are highly unlikely to believe that 99 plants are reasonably related to one patient’s needs. Patients who wish to grow in excess of their personal amounts should consider forming a collective as discussed above. In the end, there is absolutely no reason to pay the increased costs for a grower’s license because it does not provide any added protections.