What doctors, users, growers and others should understand about the passage of Prop 64 and Prop 215

Cannabis and marijuana are all the same plant species, Cannabis Sativa. Cannabis is generally used as the more scientific formal name. The three major strains of Cannabis are Cannabis Indica, Cannabis Sativa, and Cannabis Ruderalis. Marijuana is a variant of the word marihuana. It is the more informal name for Cannabis. Marijuana is generally used to describe the medical or recreational drug.

Before starting any cannabis service, business, or use; individuals, doctors, and companies should review the California cannabis and healthcare laws with a respected California cannabis attorney.

Prop 64, the Adult Use of Marijuana Act

California approved the adult use of cannabis on November 8, 2016. Prop 64 became law when the voters approved the proposition on the election ballot. Proposition 64 is more formally titled the Adult Use of Marijuana Act. The law’s key provisions are:

  • Permit adults who are 21-years of age or older to:
    • Possess or give away up to an ounce of marijuana or eight grams of concentrated cannabis
    • Cultivate, possess, harvest, plant, process, or dry, for their own personal use, up to six live plants
  • The act has numerous provisions that regulate:
    • The sale of marijuana
    • The manufacture of marijuana
    • How marijuana production will be taxed
    • Additional regulations
  • Reduces most marijuana-based felonies to misdemeanors
  • Allows individuals with criminal records to petition the courts for a reduction of the charges
  • Cannabis over the one-ounce limit must be stored in a locked space. It can’t be publicly visible.
  • Local governments can create cultivation restrictions except that that they can’t forbid indoor cultivation in a residence or structure – provided the residence or structure is secure and completely enclosed.

Adults will be able make purchases marijuana from a state-licensed marijuana facility if they present a valid California ID or a valid out-of-state license.

If a city or county doesn’t authorize the sale of marijuana use, then only people authorized to purchase marijuana for medical use will be allowed to purchase marijuana from state-licensed marijuana stores.

The commercial sale of marijuana

AUMA in combination with the Adult Use of Cannabis Regulation and Safety Act (MAUCRSA) authorizes the commercial production, distribution, and sale of marijuana for use by adults – from state-licensed facilities. These commercial rights became effective as of January 1, 2018.

The state authorization to produce, distribute, and sell marijuana can be limited by county and city governments.

MAUCRSA authorizes and regulates the licensing requirements for marijuana manufacture and distribution for both the adult use of cannabis and the medical use of cannabis. Licensing is done through the following three agencies:

Activities Prohibited by AUMA

Users of cannabis:

  • Can’t smoke, ingest, or vaporize the cannabis in public places. Local governments can authorize cannabis possession and use in state-licensed facilities.
  • Can’t smoke or vaporize marijuana within 1,000 feet from a place where children are present such as a school, youth center, or day care center – unless they are using the marijuana in their private residence or they are smoking or vaporizing the cannabis in a designate smoking area.
  • Can’t consume marijuana or possess an open container of marijuana while driving or as a passenger – in a motor vehicle, airplane, or boat

There are fines for each type of infraction. There are some exceptions an experienced California cannabis lawyer can explain. Adults should also review with their lawyer all forms of cannabis use, manufacture, sale, and other marijuana activities.

AUMA Restrictions by Employers, Landlords, and Government Agencies

Employers can have policies forbidding the use of cannabis by employees. They can require that their work places by marijuana-free.

Landlords and private owners can forbid or restrict the use of cannabis on their property.

Government agencies can forbid or restrict cannabis use in the buildings they own.

Prop 215 and the Medical use of marijuana

Cannabis for medical use was authorized in 1996 through Prop 215, titled the California Compassionate Use Act. The law permits the medical use of marijuana:

The medical use of marijuana is permitted for patients of all ages

  • Provided a California licensed-physician recommends the use.
  • Minors under 18 must obtain their parent’s consent
  • Anyone between 18 and 20 can visit a state-licensed medical dispensing facility – but not adult use facilities

The law applies to patient caregivers in addition to patients.

Prop 215 also authorized the cultivation, distribution and sale of marijuana of marijuana. That authorization has now been supplanted by MAUCRSA effective January 1, 2018.

Patients can obtain state medical cannabis ID cards. Patients who have these cards are exempt from the state sales tax on medical cannabis and related products.

Patients should review with their California cannabis attorney how much marijuana they can grow depending on whether they intend to use it for medical purposes (pursuant to Prop 215) or adult usage (pursuant to Prop 64).

Are There Still Benefits to Obtaining a Doctor’s Recommendation for Medical Marijuana?

As always, you should speak to an experienced California cannabis lawyer. In general:

  • A purchase to a person with a medical marijuana card is exempt from the California state sales tax
  • More potent marijuana products, for example products with up to 2,000 milligrams of THC can be used for medical purposes. The limit on adult use by THC strength is 1,000 milligrams
  • Medical marijuana patients can possess more than one ounce of cannabis
  • Medical marijuana patients can grow more than six home plants

In all the above cases, a physician’s approval is required.

How Will Consumers Know What Cannabis Products to Purchase?

Marijuana dispensaries can look as nice or as un-nice as any retail store. The people who sell the products may be knowledgeable or they may just be cashiers who know how to take your money. Consumers should educate themselves in the same way they would for any type of retail purchase. Education should include smoking, vaping, tinctures, and edibles, plus the full range of strains and products.

Licensed-facilities that dispense/sell cannabis are required to test their products for purity, molds, pesticides, and contaminants. The cannabis products should be tested for their strength. Labels should identify the levels of CBD, THC, and other chemicals.

Facilities will generally have either an “A” license to dispense adult usage cannabis or an “M” license to dispense medical marijuana. Some facilities will have both types of licenses.

In addition to buying the cannabis at a licensed facility, California is allowing licensed facilities to deliver the cannabis with some restrictions.

Taxes on the Sale of Marijuana

Cannabis sales are taxed at standard California tax rates (7.5 % to 9.25 %). A 15% state tax is also authorized. Medical sales of marijuana from “M” licensed facilities are exempt. Local governments can add their own sales taxes which can be as high as an additional 20%. There may also be cultivation taxes.

Penalties for Marijuana Use

AUMA provides some penalties for marijuana possession, use, manufacture, distribution, sale, and other actions. The AUMA provisions are in addition to state and federal laws that anyone who is interested in cannabis should review with an experienced lawyer.

While California authorizes marijuana use for medical purposes and small amounts, the current U.S. Department of Justice has indicated that they may very well assert that the possession, use, manufacture, distribution, and sale (as well as other activities) violate federal law.

AUMA categorizes penalties as follows:

  • Juvenile offenses. Minors under age 18 will generally not be imprisoned or subject to criminal fines. They can be sentenced to perform community service and they may be required to get counseling and take drug education courses.
  • Adult offenses. Anyone 18 years-of-age or older can be fined. They can also be charged with a misdemeanor. They also can be charged with felonies if aggravated circumstances apply such as the use of a weapon, violent offenses, offenses involving minors, environmental charges, and offenses involving more than one person. Anyone charged with a cannabis offense should seek legal counsel. Each case is different. Offenses can result in time in jail and substantial fines.
  • Prior convictions. Prop 64 allows anyone with a prior cannabis conviction to petition the court to have their conviction dismissed or reduced if the original offense would be a lesser offense under AUMA. Many prior marijuana-related felonies meet this requirement.

Drivers can still be convicted of driving under the influence of narcotics if the test results or physical evidence support such a conclusion.

AUMA does not apply to possession, manufacture, use, or other activities on federal lands such as federal parks. Activities on federal lands will generally be governed by federal cannabis laws.

California Licensing of Cannabis

California authorizes the following types of cannabis licenses:

There are also licenses for the following categories:

  • Specialty outdoor. Restrictions include no artificial lighting, the cultivation area must be less than 5,000 square feet, and other restrictions
  • Specialty indoor – using artificial lighting exclusively
  • Specialty indoor- using a combination of artificial lighting and natural light
  • Specialty cottage – a combination of restrictions
  • Smaller variations of outdoor, indoor, and mixed-lighting
  • Medium variations of outdoor, indoor, and mixed-lighting
  • Nursery – for cultivation
  • Manufacturer 1 – not using volatile solvents
  • Manufacturer 2 using volatile solvents
  • Testing laboratories. Laboratories can’t hold another license type
  • Retailers must generally purchase through a distributor
  • A distributor who also collects taxes, tests the cannabis products, and ships them to retailors
  • A distributor who is only authorized to transport cannabis
  • Microbusinesses
  • Event organizers
  • Type 5 licenses. These licenses can’t be issued until January 1, 2023. They also can’t hold other types of cannabis control licenses.
    • Type 5 “Large Outdoor” cultivation over one acre
    • Type 5A “Large Indoor” over 22,000 square feet
    • Type 5B “Large Mixed-light” over 22,000 square feet

Additional Cannabis Issues to Review with a Respected California cannabis attorney:

Generally:

  • Cannabis can’t be sold between 10 pm and 6 am
  • The cost won’t be cheap since it will include a statewide 15% tax on medical and recreational cannabis products plus local taxes and fees
  • Competition could reduce the price as it has already done in Colorado and Washington state
  • California colleges aren’t permitting marijuana use on campus
  • You can’t take the cannabis across state lines even if it’s to Colorado, Washington, or any other state that allows marijuana possession – even if it’s medical marijuana
  • Many local governments are banning outdoor gardens. Some require expensive permits to grow marijuana plants indoors

Conclusion

  • Individuals can now possess and grow small amounts of cannabis – if they follow the new California cannabis laws
  • Physicians are still needed to authorize the use of medical marijuana
  • Consumers can purchase marijuana but only from state licensed facilities

Anyone who violates the cannabis laws may be imprisoned and may have to face substantial fines.

Speak with an experienced California Cannabis Attorney today.

To understand when and when you can and can’t use, grow, distribute, or sell cannabis for medical use or adult recreational use, Contact Cohen Healthcare Law Group. Our healthcare lawyers are respected and admired for their experience as California marijuana lawyers.

ctav3-400
Michael H Cohen Healthcare & FDA Lawyers

Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.

Leave a Comment

Start typing and press Enter to search