USA v. Noah Kleinman

Filing

FILED OPINION (DAVID M. EBEL, MILAN D. SMITH, JR. and N. RANDY SMITH) AFFIRMED. Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [10476016]

Case: 14-50585, 06/16/2017, ID: 10476016, DktEntry: 104-2, Page 1 of 11

EDMUND G. BROWN JR.
Attorney General

DEPARTMENT OF JUSTICE
State of California

GUIDELINES FOR THE SECURITY AND NON-DIVERSION
OF MARIJUANA GROWN FOR MEDICAL USE
August 2008
In 1996, California voters approved an initiative that exempted certain patients and their
primary caregivers from criminal liability under state law for the possession and cultivation of
marijuana. In 2003, the Legislature enacted additional legislation relating to medical marijuana.
One of those statutes requires the Attorney General to adopt “guidelines to ensure the security and
nondiversion of marijuana grown for medical use.” (Health & Saf. Code, § 11362.81(d).1) To
fulfill this mandate, this Office is issuing the following guidelines to (1) ensure that marijuana
grown for medical purposes remains secure and does not find its way to non-patients or illicit
markets, (2) help law enforcement agencies perform their duties effectively and in accordance
with California law, and (3) help patients and primary caregivers n
0 how
inma understand 17 they may
cultivate, transport, possess, and use medical marijuanale
K under California 2
13, law.
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I.

A
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SUMMARY OF APPLICABLE d AW ch
cite L ar
585,
50Provisions Relating to Marijuana.
A.
California Penal
14No.

The possession, sale, cultivation, or transportation of marijuana is ordinarily a crime under
California law. (See, e.g., § 11357 [possession of marijuana is a misdemeanor]; § 11358
[cultivation of marijuana is a felony]; Veh. Code, § 23222 [possession of less than 1 oz. of
marijuana while driving is a misdemeanor]; § 11359 [possession with intent to sell any
amount of marijuana is a felony]; § 11360 [transporting, selling, or giving away marijuana
in California is a felony; under 28.5 grams is a misdemeanor]; § 11361 [selling or
distributing marijuana to minors, or using a minor to transport, sell, or give away
marijuana, is a felony].)
B.

Proposition 215 - The Compassionate Use Act of 1996.

On November 5, 1996, California voters passed Proposition 215, which decriminalized the
cultivation and use of marijuana by seriously ill individuals upon a physician’s
recommendation. (§ 11362.5.) Proposition 215 was enacted to “ensure that seriously ill
Californians have the right to obtain and use marijuana for medical purposes where that
medical use is deemed appropriate and has been recommended by a physician who has
determined that the person’s health would benefit from the use of marijuana,” and to
“ensure that patients and their primary caregivers who obtain and use marijuana for
1

Unless otherwise noted, all statutory references are to the Health & Safety Code.

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medical purposes upon the recommendation of a physician are not subject to criminal
prosecution or sanction.” (§ 11362.5(b)(1)(A)-(B).)
The Act further states that “Section 11357, relating to the possession of marijuana, and
Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a
patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical
purposes of the patient upon the written or verbal recommendation or approval of a
physician.” (§ 11362.5(d).) Courts have found an implied defense to the transportation of
medical marijuana when the “quantity transported and the method, timing and distance of
the transportation are reasonably related to the patient’s current medical needs.” (People
v. Trippet (1997) 56 Cal.App.4th 1532, 1551.)
C.

Senate Bill 420 - The Medical Marijuana Program Act.

On January 1, 2004, Senate Bill 420, the Medical Marijuana Program Act (MMP), became
law. (§§ 11362.7-11362.83.) The MMP, among other things, requires the California
Department of Public Health (DPH) to establish and maintain a program for the voluntary
registration of qualified medical marijuana patients and their primary caregivers through a
statewide identification card system. Medical marijuana identification cards are intended
to help law enforcement officers identify and verify that cardholders are able to cultivate,
possess, and transport certain amounts of marijuana without being subject to arrest under
specific conditions. (§§ 11362.71(e), 11362.78.)
man
017

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ein
v. Kl June 13
It is mandatory that all countiesn USA in then
i participate o identification card program by
(a) providing applications ed request to ed
it upon archivindividuals seeking to join the identification
c
card program; (b) processing completed applications; (c) maintaining certain records;
5,
5058
(d) following state implementation protocols; and (e) issuing DPH identification cards to
14No.
approved applicants and designated primary caregivers. (§ 11362.71(b).)

Participation by patients and primary caregivers in the identification card program is
voluntary. However, because identification cards offer the holder protection from arrest,
are issued only after verification of the cardholder’s status as a qualified patient or primary
caregiver, and are immediately verifiable online or via telephone, they represent one of the
best ways to ensure the security and non-diversion of marijuana grown for medical use.
In addition to establishing the identification card program, the MMP also defines certain
terms, sets possession guidelines for cardholders, and recognizes a qualified right to
collective and cooperative cultivation of medical marijuana. (§§ 11362.7, 11362.77,
11362.775.)
D.

Taxability of Medical Marijuana Transactions.

In February 2007, the California State Board of Equalization (BOE) issued a Special
Notice confirming its policy of taxing medical marijuana transactions, as well as its
requirement that businesses engaging in such transactions hold a Seller’s Permit.
(http://www.boe.ca.gov/news/pdf/medseller2007.pdf.) According to the Notice, having a
Seller’s Permit does not allow individuals to make unlawful sales, but instead merely
provides a way to remit any sales and use taxes due. BOE further clarified its policy in a
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June 2007 Special Notice that addressed several frequently asked questions concerning
taxation of medical marijuana transactions. (http://www.boe.ca.gov/news/pdf/173.pdf.)
E.

Medical Board of California.

The Medical Board of California licenses, investigates, and disciplines California
physicians. (Bus. & Prof. Code, § 2000, et seq.) Although state law prohibits punishing a
physician simply for recommending marijuana for treatment of a serious medical condition
(§ 11362.5(c)), the Medical Board can and does take disciplinary action against physicians
who fail to comply with accepted medical standards when recommending marijuana. In a
May 13, 2004 press release, the Medical Board clarified that these accepted standards are
the same ones that a reasonable and prudent physician would follow when recommending
or approving any medication. They include the following:
1. Taking a history and conducting a good faith examination of the patient;
2. Developing a treatment plan with objectives;
3. Providing informed consent, including discussion of side effects;
4. Periodically reviewing the treatment’s efficacy;
5. Consultations, as necessary; and
6. Keeping proper records supporting the decision to recommend the use of
medical marijuana.
(http://www.mbc.ca.gov/board/media/releases_2004_05-13_marijuana.html.)

n
inma 13, 2017
leto the Medical Board (1-800-633-2322
Complaints about physicians should be addressed
v. K June
SA and prosecutes alleged licensing violations in
or www.mbc.ca.gov), which investigates
on
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conjunction with the Attorney General’sived
ited arch Office.
c
5,
5058 Substances Act.
F.
The Federal Controlled
14No.

Adopted in 1970, the Controlled Substances Act (CSA) established a federal
regulatory system designed to combat recreational drug abuse by making it unlawful to
manufacture, distribute, dispense, or possess any controlled substance. (21 U.S.C. § 801,
et seq.; Gonzales v. Oregon (2006) 546 U.S. 243, 271-273.) The CSA reflects the federal
government’s view that marijuana is a drug with “no currently accepted medical use.”
(21 U.S.C. § 812(b)(1).) Accordingly, the manufacture, distribution, or possession of
marijuana is a federal criminal offense. (Id. at §§ 841(a)(1), 844(a).)
The incongruity between federal and state law has given rise to understandable
confusion, but no legal conflict exists merely because state law and federal law treat
marijuana differently. Indeed, California’s medical marijuana laws have been challenged
unsuccessfully in court on the ground that they are preempted by the CSA. (County of San
Diego v. San Diego NORML (July 31, 2008) --- Cal.Rptr.3d ---, 2008 WL 2930117.)
Congress has provided that states are free to regulate in the area of controlled substances,
including marijuana, provided that state law does not positively conflict with the CSA. (21
U.S.C. § 903.) Neither Proposition 215, nor the MMP, conflict with the CSA because, in
adopting these laws, California did not “legalize” medical marijuana, but instead exercised
the state’s reserved powers to not punish certain marijuana offenses under state law when a
physician has recommended its use to treat a serious medical condition. (See City of
Garden Grove v. Superior Court (Kha) (2007) 157 Cal.App.4th 355, 371-373, 381-382.)
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In light of California’s decision to remove the use and cultivation of physicianrecommended marijuana from the scope of the state’s drug laws, this Office recommends
that state and local law enforcement officers not arrest individuals or seize marijuana
under federal law when the officer determines from the facts available that the cultivation,
possession, or transportation is permitted under California’s medical marijuana laws.
II.

DEFINITIONS
A.
Physician’s Recommendation: Physicians may not prescribe marijuana because
the federal Food and Drug Administration regulates prescription drugs and, under the
CSA, marijuana is a Schedule I drug, meaning that it has no recognized medical use.
Physicians may, however, lawfully issue a verbal or written recommendation under
California law indicating that marijuana would be a beneficial treatment for a serious
medical condition. (§ 11362.5(d); Conant v. Walters (9th Cir. 2002) 309 F.3d 629, 632.)
B.
Primary Caregiver: A primary caregiver is a person who is designated by a
qualified patient and “has consistently assumed responsibility for the housing, health, or
safety” of the patient. (§ 11362.5(e).) California courts have emphasized the consistency
element of the patient-caregiver relationship. Although a “primary caregiver who
consistently grows and supplies . . . medicinal marijuana for a section 11362.5 patient is
serving a health need of the patient,” someone who merely maintains a source of
marijuana does not automatically become the party “who n consistently assumed
ma has
017
responsibility for the housing, health, or safety”lof that purchaser. (People ex rel. Lungren
K ein ne 13, 2
v.
v. Peron (1997) 59 Cal.App.4thn US1390, 1400.) Juperson may serve as primary
1383, A
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caregiver to “more than one” patient, provided that the patients and caregiver all reside in
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the same city or county. (§ 11362.7(d)(2).) Primary caregivers also may receive certain
5,
5058 (§ 11362.765(c) [“A primary caregiver who receives
compensation for 14- services.
. their
N for
compensationo actual expenses, including reasonable compensation incurred for
services provided . . . to enable [a patient] to use marijuana under this article, or for
payment for out-of-pocket expenses incurred in providing those services, or both, . . . shall
not, on the sole basis of that fact, be subject to prosecution” for possessing or transporting
marijuana].)
C.
Qualified Patient: A qualified patient is a person whose physician has
recommended the use of marijuana to treat a serious illness, including cancer, anorexia,
AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which
marijuana provides relief. (§ 11362.5(b)(1)(A).)
D.
Recommending Physician: A recommending physician is a person who
(1) possesses a license in good standing to practice medicine in California; (2) has taken
responsibility for some aspect of the medical care, treatment, diagnosis, counseling, or
referral of a patient; and (3) has complied with accepted medical standards (as described
by the Medical Board of California in its May 13, 2004 press release) that a reasonable and
prudent physician would follow when recommending or approving medical marijuana for
the treatment of his or her patient.

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III.

GUIDELINES REGARDING INDIVIDUAL QUALIFIED PATIENTS AND PRIMARY CAREGIVERS
A.

State Law Compliance Guidelines.
1.
Physician Recommendation: Patients must have a written or verbal
recommendation for medical marijuana from a licensed physician. (§ 11362.5(d).)
2.
State of California Medical Marijuana Identification Card: Under the
MMP, qualified patients and their primary caregivers may voluntarily apply for a
card issued by DPH identifying them as a person who is authorized to use, possess,
or transport marijuana grown for medical purposes. To help law enforcement
officers verify the cardholder’s identity, each card bears a unique identification
number, and a verification database is available online (www.calmmp.ca.gov). In
addition, the cards contain the name of the county health department that approved
the application, a 24-hour verification telephone number, and an expiration date.
(§§ 11362.71(a); 11362.735(a)(3)-(4); 11362.745.)
3.
Proof of Qualified Patient Status: Although verbal recommendations are
technically permitted under Proposition 215, patients should obtain and carry
written proof of their physician recommendations to help them avoid arrest. A
state identification card is the best form of proof, because it is easily verifiable and
n
provides immunity from arrest if certain conditions are met 017
nma 3, 2(see section III.B.4,
leicity- or county-issued patient
below). The next best forms of proof K a
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identification card, or a n U recommendation
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Possession Guidelines:
5,
5058
14No. MMP:2 Qualified patients and primary caregivers who possess a statea)

issued identification card may possess 8 oz. of dried marijuana, and may
maintain no more than 6 mature or 12 immature plants per qualified patient.
(§ 11362.77(a).) But, if “a qualified patient or primary caregiver has a
doctor’s recommendation that this quantity does not meet the qualified
patient’s medical needs, the qualified patient or primary caregiver may
possess an amount of marijuana consistent with the patient’s needs.”
(§ 11362.77(b).) Only the dried mature processed flowers or buds of the
female cannabis plant should be considered when determining allowable
quantities of medical marijuana for purposes of the MMP. (§ 11362.77(d).)
b) Local Possession Guidelines: Counties and cities may adopt
regulations that allow qualified patients or primary caregivers to possess

2

On May 22, 2008, California’s Second District Court of Appeal severed Health & Safety Code § 11362.77
from the MMP on the ground that the statute’s possession guidelines were an unconstitutional amendment of
Proposition 215, which does not quantify the marijuana a patient may possess. (See People v. Kelly (2008) 163
Cal.App.4th 124, 77 Cal.Rptr.3d 390.) The Third District Court of Appeal recently reached a similar conclusion in
People v. Phomphakdy (July 31, 2008) --- Cal.Rptr.3d ---, 2008 WL 2931369. The California Supreme Court has
granted review in Kelly and the Attorney General intends to seek review in Phomphakdy.

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medical marijuana in amounts that exceed the MMP’s possession
guidelines. (§ 11362.77(c).)
c) Proposition 215: Qualified patients claiming protection under
Proposition 215 may possess an amount of marijuana that is “reasonably
related to [their] current medical needs.” (People v. Trippet (1997) 56
Cal.App.4th 1532, 1549.)
B.

Enforcement Guidelines.
1.
Location of Use: Medical marijuana may not be smoked (a) where
smoking is prohibited by law, (b) at or within 1000 feet of a school, recreation
center, or youth center (unless the medical use occurs within a residence), (c) on a
school bus, or (d) in a moving motor vehicle or boat. (§ 11362.79.)
2.
Use of Medical Marijuana in the Workplace or at Correctional
Facilities: The medical use of marijuana need not be accommodated in the
workplace, during work hours, or at any jail, correctional facility, or other penal
institution. (§ 11362.785(a); Ross v. RagingWire Telecomms., Inc. (2008) 42
Cal.4th 920, 933 [under the Fair Employment and Housing Act, an employer may
terminate an employee who tests positive for marijuana use].)

an
2017
leinm eParolees: Criminal defendants
3.
Criminal Defendants, Probationers, and 13,
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and probationers may requestSA approvalJu use medical marijuana while they
U court d on to n
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are released on citeor probation.ive court’s decision and reasoning must be
bail d
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stated on the record and the
585
eligible to14-medical marijuana may request that they be allowed to continue
use 50
No.
such use during the period of parole. The written conditions of parole must reflect
whether the request was granted or denied. (§ 11362.795.)
4.
State of California Medical Marijuana Identification Cardholders:
When a person invokes the protections of Proposition 215 or the MMP and he or
she possesses a state medical marijuana identification card, officers should:
a) Review the identification card and verify its validity either by calling
the telephone number printed on the card, or by accessing DPH’s card
verification website (http://www.calmmp.ca.gov); and
b) If the card is valid and not being used fraudulently, there are no other
indicia of illegal activity (weapons, illicit drugs, or excessive amounts of
cash), and the person is within the state or local possession guidelines, the
individual should be released and the marijuana should not be seized.
Under the MMP, “no person or designated primary caregiver in possession
of a valid state medical marijuana identification card shall be subject to
arrest for possession, transportation, delivery, or cultivation of medical
marijuana.” (§ 11362.71(e).) Further, a “state or local law enforcement
agency or officer shall not refuse to accept an identification card issued by
the department unless the state or local law enforcement agency or officer
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has reasonable cause to believe that the information contained in the card is
false or fraudulent, or the card is being used fraudulently.” (§ 11362.78.)
5.
Non-Cardholders: When a person claims protection under Proposition
215 or the MMP and only has a locally-issued (i.e., non-state) patient identification
card, or a written (or verbal) recommendation from a licensed physician, officers
should use their sound professional judgment to assess the validity of the person’s
medical-use claim:
a) Officers need not abandon their search or investigation. The standard
search and seizure rules apply to the enforcement of marijuana-related
violations. Reasonable suspicion is required for detention, while probable
cause is required for search, seizure, and arrest.
b) Officers should review any written documentation for validity. It may
contain the physician’s name, telephone number, address, and license
number.
c) If the officer reasonably believes that the medical-use claim is valid
based upon the totality of the circumstances (including the quantity of
marijuana, packaging for sale, the presence of weapons, illicit drugs, or
large amounts of cash), and the person isan
01
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guidelines or has an amount . Kle
consistent with their,current medical needs, the
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d) Alternatively, if the officer has probable cause to doubt the validity of a
0585
5medical marijuana claim based upon the facts and circumstances,
person’s
14No. person may be arrested and the marijuana may be seized. It will then be
the
up to the person to establish his or her medical marijuana defense in court.
e) Officers are not obligated to accept a person’s claim of having a verbal
physician’s recommendation that cannot be readily verified with the
physician at the time of detention.

6.
Exceeding Possession Guidelines: If a person has what appears to be valid
medical marijuana documentation, but exceeds the applicable possession
guidelines identified above, all marijuana may be seized.
7.
Return of Seized Medical Marijuana: If a person whose marijuana is
seized by law enforcement successfully establishes a medical marijuana defense in
court, or the case is not prosecuted, he or she may file a motion for return of the
marijuana. If a court grants the motion and orders the return of marijuana seized
incident to an arrest, the individual or entity subject to the order must return the
property. State law enforcement officers who handle controlled substances in the
course of their official duties are immune from liability under the CSA. (21 U.S.C.
§ 885(d).) Once the marijuana is returned, federal authorities are free to exercise
jurisdiction over it. (21 U.S.C. §§ 812(c)(10), 844(a); City of Garden Grove v.
Superior Court (Kha) (2007) 157 Cal.App.4th 355, 369, 386, 391.)
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IV.

GUIDELINES REGARDING COLLECTIVES AND COOPERATIVES

Under California law, medical marijuana patients and primary caregivers may “associate
within the State of California in order collectively or cooperatively to cultivate marijuana for
medical purposes.” (§ 11362.775.) The following guidelines are meant to apply to qualified
patients and primary caregivers who come together to collectively or cooperatively cultivate
physician-recommended marijuana.
A.
Business Forms: Any group that is collectively or cooperatively cultivating and
distributing marijuana for medical purposes should be organized and operated in a manner
that ensures the security of the crop and safeguards against diversion for non-medical
purposes. The following are guidelines to help cooperatives and collectives operate within
the law, and to help law enforcement determine whether they are doing so.
1.
Statutory Cooperatives: A cooperative must file articles of incorporation
with the state and conduct its business for the mutual benefit of its members.
(Corp. Code, § 12201, 12300.) No business may call itself a “cooperative” (or “coop”) unless it is properly organized and registered as such a corporation under the
Corporations or Food and Agricultural Code. (Id. at § 12311(b).) Cooperative
corporations are “democratically controlled and are not organized to make a profit
for themselves, as such, or for their members, as such, but primarily for their
n
members as patrons.” (Id. at § 12201.) The earnings and savings of the business
17
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lemembers 13, 20 distributed to
must be used for the general welfare.of its
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members in the form of n USA
cash, property, on Juor services. (Ibid.) Cooperatives
credits,
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earnings, and must report individual transactions from individual members each
5,
5058 et seq.) Agricultural cooperatives are likewise nonprofit
year. (See id.- § 12200,
14 at
No.
corporate entities “since they are not organized to make profit for themselves, as
such, or for their members, as such, but only for their members as producers.”
(Food & Agric. Code, § 54033.) Agricultural cooperatives share many
characteristics with consumer cooperatives. (See, e.g., id. at § 54002, et seq.)
Cooperatives should not purchase marijuana from, or sell to, non-members;
instead, they should only provide a means for facilitating or coordinating
transactions between members.
2. Collectives: California law does not define collectives, but the dictionary
defines them as “a business, farm, etc., jointly owned and operated by the members
of a group.” (Random House Unabridged Dictionary; Random House, Inc.
© 2006.) Applying this definition, a collective should be an organization that
merely facilitates the collaborative efforts of patient and caregiver members –
including the allocation of costs and revenues. As such, a collective is not a
statutory entity, but as a practical matter it might have to organize as some form of
business to carry out its activities. The collective should not purchase marijuana
from, or sell to, non-members; instead, it should only provide a means for
facilitating or coordinating transactions between members.

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B.
Guidelines for the Lawful Operation of a Cooperative or Collective:
Collectives and cooperatives should be organized with sufficient structure to ensure
security, non-diversion of marijuana to illicit markets, and compliance with all state and
local laws. The following are some suggested guidelines and practices for operating
collective growing operations to help ensure lawful operation.
1.
Non-Profit Operation: Nothing in Proposition 215 or the MMP authorizes
collectives, cooperatives, or individuals to profit from the sale or distribution of
marijuana. (See, e.g., § 11362.765(a) [“nothing in this section shall authorize . . .
any individual or group to cultivate or distribute marijuana for profit”].
2.
Business Licenses, Sales Tax, and Seller’s Permits: The State Board of
Equalization has determined that medical marijuana transactions are subject to
sales tax, regardless of whether the individual or group makes a profit, and those
engaging in transactions involving medical marijuana must obtain a Seller’s
Permit. Some cities and counties also require dispensing collectives and
cooperatives to obtain business licenses.
3.
Membership Application and Verification: When a patient or primary
caregiver wishes to join a collective or cooperative, the group can help prevent the
diversion of marijuana for non-medical use by having potential members complete
a written membership application. The following n
ma application 17
0 guidelines should be
followed to help ensure that marijuana grown for e 13, use is not diverted to
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a) Verify the individual’s status as a qualified patient or primary caregiver.
5,
5058 has a valid state medical marijuana identification card, this
Unless-he or she
14
No.
should involve personal contact with the recommending physician (or his or
her agent), verification of the physician’s identity, as well as his or her state
licensing status. Verification of primary caregiver status should include
contact with the qualified patient, as well as validation of the patient’s
recommendation. Copies should be made of the physician’s
recommendation or identification card, if any;
b) Have the individual agree not to distribute marijuana to non-members;
c) Have the individual agree not to use the marijuana for other than
medical purposes;
d) Maintain membership records on-site or have them reasonably
available;
e) Track when members’ medical marijuana recommendation and/or
identification cards expire; and
f) Enforce conditions of membership by excluding members whose
identification card or physician recommendation are invalid or have
expired, or who are caught diverting marijuana for non-medical use.
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4.
Collectives Should Acquire, Possess, and Distribute Only Lawfully
Cultivated Marijuana: Collectives and cooperatives should acquire marijuana
only from their constituent members, because only marijuana grown by a qualified
patient or his or her primary caregiver may lawfully be transported by, or
distributed to, other members of a collective or cooperative. (§§ 11362.765,
11362.775.) The collective or cooperative may then allocate it to other members of
the group. Nothing allows marijuana to be purchased from outside the collective or
cooperative for distribution to its members. Instead, the cycle should be a closedcircuit of marijuana cultivation and consumption with no purchases or sales to or
from non-members. To help prevent diversion of medical marijuana to nonmedical markets, collectives and cooperatives should document each member’s
contribution of labor, resources, or money to the enterprise. They also should track
and record the source of their marijuana.
5.
Distribution and Sales to Non-Members are Prohibited: State law
allows primary caregivers to be reimbursed for certain services (including
marijuana cultivation), but nothing allows individuals or groups to sell or distribute
marijuana to non-members. Accordingly, a collective or cooperative may not
distribute medical marijuana to any person who is not a member in good standing
of the organization. A dispensing collective or cooperative may credit its members
for marijuana they provide to the collective, which it may then allocate to other
an
members. (§ 11362.765(c).) Members also may reimburse 017
the collective or
leinm e them.2Any monetary
cooperative for marijuana that has v. Kallocated to 13,
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collective or cooperative should
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6.
Permissible
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collective or cooperative for medical purposes may be:

Marijuana grown at a

a) Provided free to qualified patients and primary caregivers who are
members of the collective or cooperative;
b) Provided in exchange for services rendered to the entity;
c) Allocated based on fees that are reasonably calculated to cover
overhead costs and operating expenses; or
d) Any combination of the above.
7.
Possession and Cultivation Guidelines: If a person is acting as primary
caregiver to more than one patient under section 11362.7(d)(2), he or she may
aggregate the possession and cultivation limits for each patient. For example,
applying the MMP’s basic possession guidelines, if a caregiver is responsible for
three patients, he or she may possess up to 24 oz. of marijuana (8 oz. per patient)
and may grow 18 mature or 36 immature plants. Similarly, collectives and
cooperatives may cultivate and transport marijuana in aggregate amounts tied to its
membership numbers. Any patient or primary caregiver exceeding individual
possession guidelines should have supporting records readily available when:
a) Operating a location for cultivation;
b) Transporting the group’s medical marijuana; and
c) Operating a location for distribution to members of the collective or
cooperative.
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Case: 14-50585, 06/16/2017, ID: 10476016, DktEntry: 104-2, Page 11 of 11

8.
Security: Collectives and cooperatives should provide adequate security to
ensure that patients are safe and that the surrounding homes or businesses are not
negatively impacted by nuisance activity such as loitering or crime. Further, to
maintain security, prevent fraud, and deter robberies, collectives and cooperatives
should keep accurate records and follow accepted cash handling practices,
including regular bank runs and cash drops, and maintain a general ledger of cash
transactions.
C.
Enforcement Guidelines: Depending upon the facts and circumstances,
deviations from the guidelines outlined above, or other indicia that marijuana is not for
medical use, may give rise to probable cause for arrest and seizure. The following are
additional guidelines to help identify medical marijuana collectives and cooperatives that
are operating outside of state law.
1.
Storefront Dispensaries: Although medical marijuana “dispensaries”
have been operating in California for years, dispensaries, as such, are not
recognized under the law. As noted above, the only recognized group entities are
cooperatives and collectives. (§ 11362.775.) It is the opinion of this Office that a
properly organized and operated collective or cooperative that dispenses medical
marijuana through a storefront may be lawful under California law, but that
dispensaries that do not substantially comply with the guidelines set forth in
an
sections IV(A) and (B), above, are likely operating outside the protections of
2017
leinm e 13operating such entities may
Proposition 215 and the MMP, and that the individuals ,
K
v.
n
be subject to arrest and criminal prosecutionJu California law. For example,
USA d on under
in
dispensaries that imerely require patients to complete a form summarily designating
c ted archive
the business owner as 5, primary caregiver – and then offering marijuana in
58their
exchange for cash “donations” – are likely unlawful. (Peron, supra, 59
4-50
1
No.
Cal.App.4th at p. 1400 [cannabis club owner was not the primary caregiver to
thousands of patients where he did not consistently assume responsibility for their
housing, health, or safety].)
2.
Indicia of Unlawful Operation: When investigating collectives or
cooperatives, law enforcement officers should be alert for signs of mass production
or illegal sales, including (a) excessive amounts of marijuana, (b) excessive
amounts of cash, (c) failure to follow local and state laws applicable to similar
businesses, such as maintenance of any required licenses and payment of any
required taxes, including sales taxes, (d) weapons, (e) illicit drugs, (f) purchases
from, or sales or distribution to, non-members, or (g) distribution outside of
California.

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