Cannabis 101: What You Weed to Know
With the passage of Proposition 64 and the beginning of a regulated industry, cannabis law in California continues to be a bundle of contradictions and keeping up with it leaves even law enforcement scratching their heads. This confusion probably stems from the fact that determining if an act is lawful or not involves a whole slew of considerations.
Because Proposition 64 DID NOT repeal Proposition 215, the first question is, “are you a medicinal cannabis patient?”
To be a medicinal cannabis patient you need a recommendation, oral or written, from a licensed California physician. A written recommendation is better than an oral one, and a recommendation less than one year old is best.
This recommendation is a product of Proposition 215, the Compassionate Use Act. Prop 215 protects personal possession, use, and cultivation. However, these protections are considered a qualified immunity to prosecution and are fairly limited. A recommendation doesn’t exempt you from sales and use tax, doesn’t protect you from search and seizure, doesn’t allow you to possess unlimited quantities, doesn’t allow you to consume your medicine in public or in housing where the landlord prohibits it, and doesn’t exempt you from local land use regulations. It does allow you to forward a defense after prosecution has begun that your activities were reasonably related to your ongoing medical needs. There is NO specific possession limit, though many individuals, including recommending doctors and law enforcement, still believe that there is.
If you take your physician recommendation and apply to your local county for a Medical Marijuana Program Act identification card you can get a few more benefits. You are still subject to search, but if you possess less than eight ounces of flower and/or cultivate six or fewer mature plants, you’re protected from arrest and criminal prosecution. This card also exempts you from sales and use tax in dispensaries. You still can’t violate a landlord’s rules or a local jurisdiction’s land use ordinance though. Unfortunately, it also puts you on a list that is theoretically available to somebody looking to enforce some federal regulations. Applications usually require a sub one year old recommendation, proof of county residency, and less than $100.
The Medical Marijuana Program Act, SB 420, created both this extra protection for card holders and collective/cooperative protections. These collective protections are being phased out under Prop 64. Therefore, any collective or cooperatives have to either enter the regulated commercial cannabis market or stop operations by the Bureau of Cannabis Control set date, January 9, 2019.
These collective protections are generally only going to affect those individuals working commercially, but it also means that you won’t be allowed to grow for fellow patients anymore. Unless you are their designated caregiver, which means you’re providing very involved personal care (think in-home nursing care), you cannot provide them more than adult-use levels of cannabis. Patient-to-patient provision is being phased out.
Adult Use vs. Recreational
In California the term adult-use is used for non-medicinal cannabis use. This is exactly the same as recreational. So who can do what?
First, for the purpose of cannabis law, adults are 21 and up, like for alcohol. Second, the following allowances are for individuals who do not have any special limitations or conditions on them, such as probation or other court orders. Third, these allowances do not provide any protection from your employer. An employer is still allowed, and can even be required, to enforce a no-drug policy that means that testing positive for cannabis is lawful grounds for dismissal. But, assuming that your employer does not require drug testing, and you aren’t on probation, what can a 21+ year old do in California?
They can possess up to one ounce (28.5 grams) of cannabis flower and eight grams of cannabis concentrate. This concentrate can be in whatever form, edible, cartridge, topical, etc. but cannot exceed a total of eight grams. That doesn’t mean a two ounce edible violates this section, it’s about the amount in the edible, which should be on the label. Adults 21+ may also cultivate up to six plants, subject to local land use ordinances. They can also gift up to one ounce of flower and eight grams of concentrate to another 21+ adult. Note: you may gift, not sell. You cannot receive any payment in return.
But where can you enjoy your new lawful cannabis? The basic rule is private property; either a private residence where the owner allows it, or a location with an on-site consumption permit. You are not allowed to use cannabis at any location where alcohol is sold or provided. Transport is best compared to alcohol. Just as you cannot have an open container of alcohol in your car, you also cannot have an open container of cannabis. So, if the container isn’t heat sealed, keep it in the trunk of your car. Only patients are permitted to keep re-sealable packages in their car. You are also not allowed to smoke and drive, smoke around schools or day care centers, or use in public.
Land Use What?
Earlier, I mentioned land use ordinances. But what is a land use ordinance and how does it affect cultivation?
Each jurisdiction, city and/or county, is allowed to implement their own rules about cultivation. They are allowed to completely ban any and all medicinal cultivation. The key limit on a local jurisdiction’s cultivation ordinance is from Proposition 64, which says that they cannot completely prohibit the indoor cultivation of up to six plants for personal adult use. They can regulate it, but not completely ban it.
To clarify, this is six plants per residence, not per person, and it must be indoors. What “indoors” means can vary by jurisdiction. And your cultivation can only be for personal use. This means that you are growing it all for yourself, not for sale or distribution. If you do want to cultivate cannabis, you should contact your city or county and talk to them about what they require.
In California 2018 has seen the birth of a whole new way of approaching cannabis. Despite legalization having occurred about a year and a half ago, the opening of adult use retail businesses this past January has provided the first meaningful access to all California residents and visitors alike. But the law is far from settled. With the regulated industry just beginning, and a federal prohibition still in place, all we can do is sit back and see how this all rolls out.