Rights of Patients: Access to Marijuana and Dispensaries
By Bruce M. Margolin, attorney at law
Proposition 215 requires that the State of California render and make available medical cannabis to patients. Yet, to date, the law passed by the citizen’s initiative has not been enforced and the state has yet to make available medicinal marijuana. Thus, the need and appropriateness of medical-marijuana dispensaries to do the job of government is clear.
Under Prop. 215, the law provides only for the possession and cultivation by patients and their caregivers. When Dennis Peron, the author of Prop. 215, opened his cannabis club in San Francisco, he had over 3,000 patients who had designated the organization as their caregiver. Unfortunately, the Courts of Appeal agreed that the city of San Francisco has the right to declare the medical-marijuana dispensary a nuisance and that wonderful facility was closed down.
I had the good fortune to have visited there in those days and it was a great experience not only to see the availability of the most sacred medicinal herb, but also to experience the vibe. A true place of sanctuary in this quaint San Francisco cannabis club, a sense of peace prevailed as I exchanged small talk with many patients. Although most were seriously ill, they had high spirits and enlightenment. It was not simply from partaking of the herb but the support the members offered to each other: true care-giving by sharing themselves at a time when this kind of support was most needed. Suffering, yes, but not in silence or alone as most patients with serious illnesses find themselves in their final days.
The ruling in Peron did not deter the proliferation of dispensaries. They ignored the decision in Peron or failed to understand the ruling. They continued to use caregiver’s designation as the foundation of their relationship to hopefully be protected by the law.
I had made it clear in my Guide to State and Federal Marijuana Laws that a “caregiver” under Prop. 215 cannot be an organization. Yet, notwithstanding the state of the law, there were very few busts and fewer were ultimately prosecuted.
The state prosecutors were confused and unsure of the law as are many others in the practice of law. They did not want to file a case inappropriately and did not want to lose once they filed a complaint. The battle still continues between law enforcement and dispensaries as clubs are taken down and medicine and money are being seized. However, within a day or two, these same locations often open again and are not revisited.
With the passage of the legislation Senate Bill 420, patients’ rights were greatly expanded — or at least that is what it proclaimed, and in many areas it did. First and foremost, it provides for the formations of co-operatives and collectives of patients who can now come together to cultivate and provide medical marijuana. The Attorney General of California has published his opinion on the interpretation of the law and has concluded that dispensaries are legal when patient groups (co-operatives and collectives) are established as patient run non-profit organizations.
Individual cities and counties have control over things such as the number of liquor stores their towns may allow and have codes that provide the regulations for the types of business and how many they will authorize in any given area. The Los Angeles Times reported in a June 3 front page article, “Banned, but they’re cropping up all over” by John Hoeffel, that there are now as many as 600 dispensaries and many others that may be unknown operating in Los Angeles County. However there were only 186 registered with the city before they passed a moratorium.
The moratorium included a provision for hardship exemptions to those who applied late after the moratorium was passed, and there are still hundreds pending review. Hardship applications were filed by dispensaries as they failed to timely meet the requirements, which included a city business-tax registration certificate and liability insurance coverage. They are now in a position that keeps them from being closed down and city counsel has not taken action against them. The city is considering closing the hardship applications as some see it as a loop hole.
I personally could not be more pleased with the number of dispensaries currently operating as they help satisfy the needs of medical marijuana patients. It is these organizations who have the guts and the heart to make this sacred medicinal herb available. They are doing the job the government was required to do by Prop. 215.
Knowing the laws and your rights can be the best way to stay out of trouble.
Bruce Margolin is a criminal defense attorney since 1967. His offices are in West Hollywood. He is the director of Los Angeles N.O.R.M.L. since 1973.