cannabisnews.com: Humboldt Cannabis Center Admit Illegal Operation





Humboldt Cannabis Center Admit Illegal Operation
Posted by FoM on November 07, 1999 at 08:35:27 PT
By Rob Amerman and Mark Tide
Source: Arcata Journal
Investigation of local P215 implementation process reveals a program disharmonious to both the spirit and letter of this new law. That fact may be surprising, since many persons take it for granted that all of the attention Arcata has received indicates that its program exists upon a firm policy foundation. 
However, this task appears to be only half accomplished, with a threat of collapse as soon as the actual operations of the current program become clearly understood.Failure to achieve proper implementation emanates from two sources, the combined energy of which is quite familiar to local residents: the black market and law enforcement, neither of which is entirely comfortable with this reform. Of course, separating medical situations away from both of these pervasive influences was the pure purpose of P215. So, what has gone wrong and why?As soon as this initiative was adopted in November of 1996, attorneys for Dennis Peron's famous San Francisco medicinal cannabis club were appearing before the Superior Court there, arguing that the club's operations were protected through the adoption of P215. This court had previously issued a civil injunction at the urging of former Attorney General Lungren, which was intended to close the club because of pre-P215 conflicts with state drug statutes. Peron's lawyers argued that the injunction should be modified due to the legal protections now afforded by P215.These arguments made to the San Francisco Superior Court were successful in achieving the desired modification of this injunction ordering closure of Peron's medicinal cannabis distribution operation. However, Appeals Court for the First Appellate District (within which we in Humboldt County reside) reversed this superior court's modification order and established law on this subject that is the leading authority in our area at this time.Measuring P215 implementation programs of both the Humboldt Medicinal Cannabis Center and the Humboldt County District Attorney against this authoritative judicial opinion is extremely revealing. This exercise indicates where the actual barriers to proper implementation continue to exist in both programs. In a fascinating microcosm and deja vu, the Humboldt Medicinal Cannabis Center has basically assumed the format and role Peron's club, while the District Attorney attempts to hold on to as much as possible of former Attorney General Lungren's legal perspective. Middle ground between these two extremist positions is eloquently called for, within a concurring voice on the First Appellate District Court, Presiding Justice of the Second Division of this District.Local jurisdictions, following Arcata, should begin to listen carefully to what this Presiding Justice of the Second Division of our appellate district, Anthony Kline, has articulated in his opinion regarding the seeming paradoxes of implementation. Answers to what remain as very dangerous local dilemmas must be found, through resolving these issues to which Justice Klein draws our attention. Part I : What our district appellate court declares to be the bases and limits of P215 : According to the Appeals Court, trial court judge (Judge Garcia) "wrongly allows . . conduct criminally proscribed by section 11360 [the statute prohibiting distribution and possession for distribution] after enactment of section 11362.5 [P215], a failure to properly and legally define the conduct to be enjoined. [The trial court] did not specify what conduct . . . would or would not conform to the law, and therefore left the legal limits on . . . conduct undefined."The primary section relevant to operations of the Humboldt Medicinal Cannabis Center is section 11570, which prohibits operating a building or facility from which such distribution would take place.The Appeals Court describes that it is "required to consider here, as a matter of first impression, the effect of section 11362.5 on section 11570 . . . and conclude[s]:(1) The sale and possession for sale of marijuana continue to be proscribed by sections 11360(a) and 11359 following enactment of section 11362.5. The lack of profit to the seller or possessor does not exempt such activities from prosecution under those sections or from the provisions of section 11570.(2) Section 11362.5(d) only exempts a patient or the patient's 'primary caregiver' from prosecution under section 11357 (marijuana possession) and section 11358 (marijuana cultivation) when either of them possess or cultivate marijuana only for the patient's personal medical purposes upon the written or oral recommendation or approval of a physician.(3) [Peron, etc.], operating a commercial enterprise selling marijuana to any qualified public purchaser, do not qualify as 'primary caregiver(s)' of each such purchaser under section 11362.5(e) by simply obtaining from the purchaser a designation as such prior to and as a condition of a marijuana sale to that person. One maintaining a source of marijuana supply, from which all members of the public qualified as permitted medicinal users may or may not discretionarily elect to make purchases, does not thereby become the party 'who has consistently assumed responsibility for the housing, health, or safety' of that purchaser as section 11362.5(e) requires. [Peron, etc.,] are, consequently, not immunized against the enforcement of section 11570 against them because they allegedly store, possess, and sell marijuana in the capacity of consistent primary caretakers of the health and safety of their numerous purchasers.(4) The general availability of injunctive relief under section 11570 against buildings and drug houses used to sell controlled substances is not affected by section 11362.5, and its application is not precluded on the record in the case at bench.[The Appeals Court] accordingly vacate[s] the trial court's order modifying the preliminary injunction because it erroneously allowed marijuana sales on any assertedly 'non-profit' basis, erroneously misconstru[ing] the application of section 11362.5 in permitting criminally proscribed conduct . . . ." Part I (i) The Appeals Court identifies numerous, particular legal issues relevant to whether such operations as Peron's (or HMCC's, as we shall see) are legally conducted. For example :(a) "We find no support in section 11362.5 for [the] argument that sales of marijuana on an allegedly nonprofit basis do not violate state laws against marijuana sales. No provision in section 11362.5 so states. Sections 11359 and 11360 explicitly forbid both the sale and the 'giv[ing] away' of marijuana. [ ] The laws prohibiting the distribution of . . . marijuana do not distinguish between sales or gifts; the lack of a profit is irrelevant to prosecution under section 11360. There is, therefore, no 'non-profit' defense to the laws against marijuana sales . . . ."(b) "One of the declared purposes of the statute is: 'To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.' [ ] If the statute authorized the sale or 'affordable distribution' of marijuana to patients other than by personal cultivation, there would be no need to 'encourage' the governments to implement such a plan."(c) "The statutory language limits the patient's access to marijuana to that which is personally cultivated by the patient or the patient's primary caregiver on behalf of the patient."(d) "[Peron, etc.,] urge that an initiative measure, presented to the electorate as one continuing to proscribe marijuana sales, must now be judicially interpreted to permit such sales because those immune from prosecution for its possession or cultivation will be inhibited in acquiring it if the provider risks prosecution in selling it; and the medical use of marijuana intended by section 11362.5 will be, accordingly, frustrated. By doing so we would initiate a decriminalization of sales and traffic in marijuana in this state. [ ] Proposition 215, in enacting section 11362.5, did not do so. Thus, . . . one who sells, furnishes, or gives away marijuana to a patient or a qualified primary caregiver authorized to acquire it for the patient's physician-approved medicinal use, violate the law. Those sellers have no defense because of section 11362.5 to charges of violations of sections 11359 or 11360(a)."(e) "The contention that [Peron, etc.] became 'primary caregiver[s]' for patients authorized or apporved to use marijuana for medical purposes simply because the sales are conditioned upon and preceded by [a] designation by their customers as such, is clearly a subterfuge designed to subvert the plainly expressed intent of section 11362.5 continuing the proscriptions of marijuana sale and posession for sale. [ ] A contrary holding would entitle any marijuana dealer in California to obtain a primary caregiver designation from a patient before selling marijuana, and to thereby evade prosecution for violation of sections 11360 and 11359, which section 11362.5 left fully effective."(f) "Although the sale and distribution of marijuana remain as criminal offenses under section 11360, bona fide caregivers for section 11362.5 patients should not be precluded from receiving bona fide reimbursement for their actual expense of cultivating and furnishing marijuana for the patient's approved medical treatment." Part I (ii) Concurring Opinion of Justice Anthony Kline, Presiding Justice of the Second Division of the First Appellate District (within which Humboldt County jurisdictionally exists) :I concur in the judgment on the sole ground that [Peron, etc.] are not 'primary caregivers' within the meaning of Health and Safety Code section 11362.5.I think it unnecessary in this case to determine whether the sale and furnishing of marijuana remain absolutely prohibited after enactment of Proposition 215.By enacting that proposition, the voters of this state sought '[t]o 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 in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migrane, or any other illness for which marijuana provides relief.' [ ] The 'right to obtain and use' marijuana is, of course, meaningless if it cannot legally be satisfied.The majority does not say qualified users may not obtain marijuana but it does say no one has the right to sell or furnish it to them, which is the functional equivalent. Obtaining marijuana from another may, however, be the only practical way to secure it for many seriously ill Californians who have a right to obtain and use the substance, because they and their primary caregivers may as a practical matter be unable to cultivate the plant or await harvest. Moreover, a person cannot even cultivate marijuana without first obtaining seeds, and the majority does not suggest how this may legally be accomplished.At oral argument, the Attorney General took the position that persons unable to cultivate may be impliedly authorized under Proposition 215 to obtain marijuana from one who sells or furnishes it, and immune from criminal prosecution, but that the sale or furnishing is not immune and may be prosecuted under section 11360 even though the buyer can not be criminally charged. The Attorney General maintains, in other words, that a qualified patient or bona fide primary caregiver genuinely unable to cultivate marijuana can obtain the substance only be participating in what would remain an illegal street transaction.Though the majority does not endorse this view, its opinion provides colorable support. I am not on this record prepared to resolve the knotty problem of whether and, if so, how a qualified patient or primary caregiver unable to cultivate marijuana can otherwise legally obtain it. '[P]ractical realities' dictate that there be some leeway in applying statutory prohibitions pertaining to marijuana where strict enforcement would defeat or obstruct the purposes of Proposition 215. [ ] Local governments in California are now exploring ways in which to responsibly implement the new law (as, for example, through licensing ordinances) so as to relieve those medically in need of marijuana but unable to cultivate it from the need to do so. I do not think we should make gratuitous blanket determinations which might prematurely interfere with those efforts." Part I (iii): DiscussionObviously, Justice Klein has taken some time to think about what is actually occurring in the practical realm, as contrasted with the more legalistic approach of the two majority justices on this appeals panel. Justice Klein's observation: "[t]he 'right to obtain and use' marijuana is, of course, meaningless if it cannot legally be satisfied[,]" raises the basic paradox of access for those many, if not most, patients who are "unable to cultivate the plant or await harvest."Justice Klein illuminates this "knotty problem" in the majority opinion, namely: (a) no legally possible right to sell or furnish, despite the patients' / caregivers' "right to obtain and use"--- and that conclusion being drawn despite the court's permitting of "bona fide reimbursement for the actual [costs]" involved. (b) according to what remains the fundamental position of law enforcement interests: "a qualified patient or bona fide primary caregiver genuinely unable to cultivate marijuana can obtain the substance only by participating in what would remain an illegal street transaction." (c) "[P]ractical realities' dictate that there be some leeway in applying statutory prohibitions pertaining to marijuana where strict enforcement would defeat or obstruct the purposes of Proposition 215. [ ] Local governments in California are now exploring ways in which to responsibly implement the new law (as, for example, through licensing ordinances) so as to relieve those medically in need of marijuana but unable to cultivate it from the need to do so. I do not think we should make gratuitous blanket determinations which might prematurely interfere with those efforts."Arcata's municipal ordinance, adopted to create local implementation progress, has become some form of model approach. Although, only Oakland has actually followed through on the adoption of a similar ordinance. Oakland's ordinance contains essential specificity lacking in Arcata's law. Namely, it sets somewhat reasonable ceilings on numbers of plants able to be lawfully cultivated. According to press accounts during the time period that Arcata's ordinance was being fashioned, then councilmember and present Mayor Bob Ornelas was pushing for a ceiling limit of 99 plants, as a component of that law. There are no cultivation limitations established in the language of Arcata's present ordinance, which exposes this law to unreasonable interpretation by the potential charging authority vested in the district attorney. Terry Farmer, Humboldt County District Attorney, has set a limit from 10 plants (a number he derives from "thin-air") for some patients, down to none for others, on a case-by-case program of prosecutorial determinations. Oakland has established a ceiling limit of around 50 plants, depending on various circumstances.One might well ask, by what legal authority can local jurisdictions adopt such ordinances? According to the Attorney General's Office, the source of that authority is subsection (b) (1) (c) of section 11362.5, appearing within this majority opinion:"One of the declared purposes of the statute is: 'To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.' [ ] If the statute authorized the sale or 'affordable distribution' of marijuana to patients other than by personal cultivation, there would be no need to 'encourage' the governments to implement such a plan."This recognition by the majority of justices seems to present an opportunity to develop lawful implementation predicated on the very lever used in this case to disallow distribution of medicinal cannabis in ways engaged in by these defendants. Part II : What Humboldt Medicinal Cannabis Center believes to be bases and limits of P215 : On an hour-long evening broadcast on KMUD radio several weeks prior to the date of this story, the Humboldt Medicinal Cannabis Center (HMCC), represented on the air by Daniel Pierce and the Center's President, an attorney named Greg Allen, presented the following information regarding the Center's operations and philosophy.Part II (i) The following series of remarks were made by Daniel Pierce:" Let me talk to you about the HMCC. The HMCC is a nonprofit organization, [with] special entitlements. [Examples of thrift store donation operations. ] [Being a nonprofit,] the HMCC is in that same situation. If you donate weed to the [HMCC], it's a nonprofit tax-deductable donation. Your name does not go on the receipt, [if?] we give you a receipt. Once you can pay your taxes, the value of the weed, [what is set?], is beyond anything it is here. It becomes a nonprofit issue.If [Redwood Rural Community Health Center] would have a health doctor, and put up a big marijuana flag on top of their center, and charge $200 a head, and had 5 people a day come in, and . . . that's $200,000 just off the top, and we're not even talking the pharmacy end. People from around the state would come to the pharmacy and they would buy weed. We're talking nonprofit, now. You have the umbrella we have. The paperwork is done. The numbers are there. The government would have an issue then. To fight this marijuana thing, we have to bring it out to to the people. [ ] So, the next move now is where and how are we going to supply people in the big cities. SoHum has the cleanest air and water of any other area. It has the right region. It's famous. . . .There has to be some sort of collection and distribution center happening. The government and the police right now are working against us. It's very difficult to gather material up and sell it. And at the same time, centers all throughout the state are desperate for weed. The supply and demand is going crazy. But, it could be alleviated if we could get something like the health center to supply patients with the right to grow in this area.We're still not in our building. It's cost, what, $50,000 to rent the building, and then another big chunk of money to renovate . . . and we're still trying to deal with all the paperwork.Financially, we're strapped. Because we are a nonprofit, nobody's being paid, there are no salaries being made. There's no weed dealers here. In fact, I really don't like weed dealers, I don't want to deal with weed dealers. I'd rather see weed come in through the women who are bringing it in to feed their families, and they know that if they bring a little bit of weed to HMCC and sell, this month , they can bring a little bit next month and sell some. When we see friendly faces, we know what kind of quality is coming in. It's the only way that quality control can be maintained or even thought about, is if you deal on a person to person, in a situation [ ]. That's what the HMCC is. " Part II (ii) The following remarks were made by Humboldt Medicinal Cannabis Center President, attorney Greg Allen:" I actually wrote a letter to Mr. Lockyer, the A.G., asking for an A.G.'s opinion on whether we could in fact supply cannabis to other centers in the state. We have not yet received a response. And we certainly call on Mr. Lockyer to give us one, because we actually think that it's a very logical thing for us to be able to supply the rest of the state. We've been finding that in other cities, like for example San Diego, the quality of the cannabis they have is poor and the price is high. We feel that we can do much better than that, if we can get some help to do that.We see the statute as a pretty good and pretty useful statute, as it is. Its lacking in the nuts and bolts to really, effectively implement it at this point.[Responding to a person calling in with the obvious quesiton : How many plants are legal limit for a patient to cultivate?] The District Attorney, in a joint statement with the HMCC, has established a policy of 10 plants, most law enforcement agencies follow that most of the time.They say you can have 10, you should never grow more than 10. Law enforcement also doesn't really know what to do. That's one of the problems. We need to establish standards. SB848 [won't give us numbers . . . except later determined through Dept. of Health, etc.]. It's an outrage . . .[ ! ] What we need, and we are really trying for, is to get some standards.At this point, Chief Brown is issuing cards only for Arcata Residents, and the reason is, is because we're growing so fast. We have about 600 members. People are really interested in being able to get the medicine that they need.One of the things that's important, and one of the things we're trying to do at the HMCC, and we as a general view urge everyone to do. And that is: we are not funded by the government. We get no tax money of any kind, and we don't really want it. Because we want to be able to act, we want to not have the slowness and limitation that government control would put on us. So we actually believe that this is, in the truest terms, a grass-roots revolution.[Personally], all I ask of government is to leave us alone, and we'll do it, just leave us alone and give us government protection.The way, interestingly enough, that the California case law has been developing, is that the courts seem to favor patients growing their own cannabis. There's a lot to be said for that, and the more widespread it is, the harder the revolution is to stop. In Santa Clara County, [ ] the DA's Office there is actually favoring people who cultivate their own.I think it's an interesting thing, in general, I want this movement and I see the essence and the future of this movement, as a movement that has nothing to do with government. It's a movement of people acting somewhat together, acting somewhat individually, to do what they feel is right , and to make things that they want happen. I'm very in favor of it. " Part II (iii) Since this KMUD broadcast, The Arcata Journal conducted an extensive interview with Greg Allen, the President of the Humboldt Medicinal Cannabis Center."The only person who is authorized to speak publicly for the Center is me, at this point," according to Mr. Allen, who also believes that "the definition of caregiver in the [P215] statute is ridiculous." Revealing an immensely relevant item of information, Mr. Allen also asserts that, "Since the feds came last September into Panther Gap, the Center has never had a crop of its own."Mr. Allen is referring to the occasion of federal and state law enforcement officials acting to eradicate an ostensibly medicinal cannabis cultivation operation by HMCC in Southern Humboldt County. There was no proper form of implementation policy in effect within the county at that time, as there currently remains none. City of Arcata is the only jurisdiction within which formal legislative policy exists in support of implementation.Even at this time, Mr. Allen indicates a general reluctance to engage in county-wide efforts. "I thought about going county-wide, but I didn't think it was a good idea, so some other folks and I are going to the different towns that have different police agencies in this county, and are trying to work out protocols, so that basically everybody has some idea of where they stand and what they're supposed to do."Even though Mr. Allen doesn't show much interest in such efforts to develop county-wide local implementation outside certain targeted municipalities within Humboldt County (and he has an erroneous impression that Garberville is such a municipality), he feels strongly that absolute consistency is imperative on a statewide basis."If the direction isn't from above, we're gonna get what we have, and that's different standards in different counties. It has to be statewide. It has got to be statewide. Until our patients are safe everywhere in the state, this is all just a big fucking joke." Although Mr. Allen goes on to predict that, "ultimately, there will be statewide regulation. Nothing is going to happen in the state level until [probably 2001 or so, however]." As he sees it, "the people who are fighting SB 848 [a measure in the state legislature on the subject of implementation] most are law enforcement."The City of Arcata submitted a formal letter of opposition to SB 848 to legislative policymakers, based on a completely different justification: that SB 848 failed to properly protect patients as P215 intends. This letter of opposition from the Arcata City Council was advocated for by an anonymous patient and resident who submitted three letters and alternative language for this bill as argument for such a position being adopted by the Arcata City Council. All of this material can be found within this webzine's Medicinal Cannabis Page.On issues of District Attorney plant limits, "Farmer picked a number. Now, my understanding of the biology of it is that it's kind of a ridiculous number, but in fact that's the one he picked. He has the power to exercise prosecutorial discretion and if he wants to make a number there's no even statistical chance of forcing the D.A. to basically change the number he's using."From this perspective of HMCC's President, it seems clear that District Attorney Farmer will not decide to change his present policy on this subject, unless some genuine belief in such possibility is entertained and pursued by some forms of advocacy other than Humboldt Medicinal Cannabis Center.On the subject of The Arcata Journal investigations revealing that the federal court injunction, to protect physicians from federal adminstrative retaliation for conduct relevant to implementation of P215, has been limited to a very narrow range of illnesses, Mr. Allen (an attorney, repeatedly he asserts) reacted with pure amazement. "Is that literally the language? Boy, I'd like to see a copy of that! I'm very interested in that. I'd really like to see that very much. And it says nothing about chronic pain or anything like that? I am very surprised. It's a bad idea. I'm surprised that they didn't try to stay more consistent with the language of [P215], I'm kind of surprised there."HMCC has been discussing through KMUD radio on at least two occasions the troubling absence of broad physician support toward implementation. Although not alone in being uninformed about the actual nature of the federal law on this subject, it seems quite surprising that HMCC would not have become thoroughly familiar with such fundamental matters, a very long time ago.When asked about what forms of physician outreach are being pursued by HMCC, Mr. Allen explained that "we've actually got somebody, and that's kind of his job, is to kind of be a liaison to health care professionals. No [that's not a person on the board]. We're trying to do that [have such a liaison] because it's a factor that a lot of the doctors actually don't have a clue."Not to mention a lot of attorneys, it seems.Very recently, the Federal Court of Appeals for the Ninth Circuit reversed a trial court on the issue of availability of what is known as a "medical necessity" defense to charges of cultivation, possession, and distribution of cannabis used for purposes meeting the test announced by this unanimous federal appeals court opinion. An article presenting and discussing this important new opinion is found within The Arcata Journal News File, dated September 13.On the subject of this crucial new federal ruling, Mr. Allen indicated his own opinion about the case :"It's precedent in the Ninth Circuit, absolutely, and I have noticed over the years that appellate circuits really tend to follow their own cases, sometimes more than a Supreme Court case. [ ] This is no more than a guess, I'm not even sure that it's my guess, but it's a possibility that I would consider. I took a look at a pretty long newspaper article in the [ ] San Jose Mercury, and I looked at some of the published opinion but didn't get a chance to read all of it. The feds did such a lame job on it, logically speaking. . . .""I wonder if perhaps the feds really aren't trying that hard. [ ] Reality isn't as important as perceptions. They're not giving it their best shot, because they want to make it look like in fact they're doing a hell of a lot more than they are. It's such a bad job."Mr. Allen responded in the following way to a question about whether this new federal ruling would have an influence on HMCC operations :"Probably not, and the reason is: one, we were never a part of it, and two, it really has to do, the fairly narrow issue is, it has to do with the appropriateness of being able to allow a medical necessity defense in the federal court. In the California courts, there's [P215] and so I see its application as being exactly where we want it, the federal courts, and all that. So most of our folks, if they do have a problem, it's in state court."Other advocates in this field, including one leading drug policy reform attorney interviewed by The Arcata Journal for another story to be released soon, have expressed the position that: all those persons and organizations wanting to avoid federal illegality should formulate the details of their programs along the lines of preparing "medical necessity" defenses on all patients for which any persuasive argument can be made for inclusion within such a class.Asked about the plans regarding the new HMCC facility at the northwest corner of 6th and H Streets in Arcata, Mr. Allen explained that, "we're zoned as a medical clinic. No [conditional use permit is required]. The city is fully apprised of anything we intend to do with the building, and they've had it in writing for a long time. In the application we were very straightforward. The city is aware that we'll be doing some [cultivation and distribution] there. We are going to have a lab here. The first experimentation we want to do is to classify the cannabis. Apparently, we're going to have, I guess, access to a spectrograph, or something like that.""Ultimately, I want to move the lab and any grow to a different place, so this can be used entirely for non-technical purposes. We would [do distribution] here. We're trying to make this place especially adapted [specifically for distribution]."When questioned about the intended uses for the retail exposure of the Center's new building, Mr. Allen described that, "right now the plan is to sell glass stuff, like pipes and bongs. Things like that. We are not going to limit those sales just to patients. We certainly will limit sales to persons 18 years or older. We're gonna have baseball caps. We're gonna have t-shirts."The Arcata Journal has investigated the actual prices being charged for cannabis obtained through HMCC, although this information has also been confirmed in detail by Mr. Allen. With a limited amount of deviation, the price of cannabis obtained from HMCC is generally around thirteen dollars ($13) per gram. This cost is absolutely indistinguishable from the black market, while P215 demands "implement[ation] plans" offer "affordable distribution" to all patients in need.Because of this obvious inconsistency with the intentions of P215 being apparent, and on the record; as well as having questions about why all this funding was going into such buildings and renovation and why the Center is so concerned with exporting medicinal cannabis from Arcata throughout the rest of the state, while its patients were still paying black-market prices, The Arcata Journal decided to inquire further into the practices and foundations of distribution, asking the following questions of Mr. Allen, in his capacity as HMCC President : WHAT IS THE LANGUAGE OF THE ORDINANCE ON DISTRIBUTION, AND HOW DOES IT MAKE DISTRIBUTION LEGAL ?"It is the first place, by the way, where the word remuneration comes up. It's not in the statute. But if you've been around here at all, it's all remuneration. No buying and selling, it's all remuneration, which is basically recompense, almost. And so, the ordinance makes reference to that and to patient cooperatives." HOW DOES THIS 'REMUNERATION' WORK, AND HOW IS THAT DIFFERENT FROM A BUYING AND SELLING MARKET ?"Well, basically, we're going on not a whole lot of law here, and that's why we need a law, more than [P215] which doesn't say enough. People v. Peron was pretty clear on the proposition that a caregiver can basically be reimbursed at cost. And somebody's time and labor can be included as a cost factor here. And of course if it's indoor, power is a factor.""Basically, folks bring it in here, our remuneration people look at it. And virtually everybody who remunerates with us is actually a patient. And they can basically ask any price that they want for it. But, there are so many different kinds, that there tends to be some price competition, not as much as I would like to have. I've actually come full circle on this. [Before], I didn't think that the price was that big a deal, but I've changed my mind. It's got to come down. It affects me, but it affects others way more. It has to come down. The thing is, if any patient could just grow in his backyard in the summertime, and grow inside in the winter, and there's no problem, then it would be affordable." HOW DO YOU THINK THE PRICE OF MEDICINAL CANNABIS CAN BECOME AFFORDABLE LOCALLY ?"I see it as : we are part of the market. The illegal market affects us, bigtime. Just because one says you're the legal market and these other guys in SoHum are the illegal market, doesn't matter. It affects us. Because we can buy our cannabis cheaper than generally you can buy it on the street, because for the grower it's worth it to them to sell it at a somewhat lower price, to be basically cloaked in legality. But, we are not independent of the black-market prices. Literally, if there's too big a difference, then it becomes harder for us to acquire from this grower. And so, although we do have some growers who are more sincere, economics doesn't change because people have political feelings. At least that has not been my experience." WHERE DOES THE CENTER GET ITS CANNABIS FROM NOW ?"Mostly from patients. They come in, and they can actually set the price that they want to get for it, it's almost like a consignment sale. They can set the price that they want, and if it sells at that price, fine. If it doesn't, then usually they need to reset at a lower price." SO IF THEY ASK A CERTAIN PRICE FROM THE CENTER, IS THAT WHAT THE CENTER CHARGES THE PATIENT WHO PURCHASES IT ?"No. No. Of course not. We have to take something in profit because we need to keep our doors open. And ultimately what we will be doing, . . .is we're actually going to be having part time and full time employees that are actually, literally, legal employees in every sense of the word." CAN PEOPLE COME IN AND DROP CANNABIS OFF, FOR A TAX DEDUCTION, AS YOU WERE SAYING ON KMUD RADIO ?"You could do that, certainly. The weed has a value, so what you do is you agree on the value. In fact, it is the proper tax deduction. When you're doing your federal income tax, you may not say it as: Donated, one pound of weed to the Humboldt Cannabis Center. But, what you do is put a certain value on the donation, give a receipt for that, and it would be as legal as church on Sunday." BUT IS THE CANNABIS LEGAL ?"Well sure, . . .[although, for a nonpatient it's illegal] . . . I'm a patient . . . it's legal in my hands.""[There's] no problem at all . . . someone certainly doesn't have to be a patient to donate cannabis to us. In our hands, it's legal always.""Patients can purchase illegal cannabis. There's nothing illegal there. There's nothing that limits the patient from getting it from any source, period." SO, THE SOURCE OF LEGAL CANNABIS AT THE CENTER IS ILLICIT ?"So? What we do when people make these donations, is we use it for legal purposes. We have books that show every transaction going through the center, of any kind. Our books are clear, our books are open. As far as I'm concerned, I see it as a donation, because in this particular world, cannabis basically does equal money." Comparing what the State Appeals Court identified as the limitations of immunity available through P215, with the nature of HMCC operations described by Mr. Allen, a person doesn't need to be a lawyer to come to the obvious conclusion that HMCC is violating the law by conducting both these current and planned activities being described.During this interview with Mr. Allen, he makes reference to an occasion noted here with some irony :"[On the KMUD radio broadcast of July 29th] - NAME WITHELD BY Arcata Journal - [member of HMCC's Board of Directors] was a loose cannon on that. He was admitting to growing 1500 - 1600 plants. The Center never authorized him to do that. So, what he was doing was admitting to a felony on the radio. That's not an intelligent thing to do." Part III : What the District Attorney believes to be the bases and limits of P215 : During the previous few months, The Arcata Journal has conducted several interviews with Terry Farmer, District Attorney of Humboldt County. Mr. Farmer has been quite accessible and friendly, obviously capable of comfortably engaging discussions on implementation policy. He expresses clear intentions of working toward the evolution of such policy. However, his notions about what policy should look like break sharply away from the spirit and letter of P215.Crystal clarity and absolute consensus exist on the issue of policy primacy of physicians under terms of this law. A physician's written or oral recommendation / approval of that physician's patient's use of medicinal cannabis commands the operation of whatever mechanism of sanctuary is eventually determined to exist against "criminal prosecution or sanction," as P215's text reads.And yet, policymakers of many kinds seem determined to want to play doctor against the clear language of this law. Unless individual physicians' medical judgment is second-guessed along the lines of reigning in any legitimazation of patients who for whatever reasons are not acceptable to law enforcement, the law enforcement interests will refuse to recognize these patients' rights to adequately and reasonably proceed with creating a proper system of distribution, as the law literally calls for, or even refuse to afford meaning and respect to these patients' individual rights.In other words, it seems plainly obvious that law enforcement is using its power to control the dimensions and contours of the practical provisions ---protections --- of this law, in order to confront what it feels to be illegitimate patients. In the words of our local District Attorney, Mr. Farmer :"There's been some things that, I think, are positive about the Arcata ordinance. There are things that I don't necessarily agree with. I think that in retrospect, some people have been given cards that I would not have given cards on, and that I would not recognize.""I think [Arcata] has been a good model, but I think there's some refinements that we need to make in that process, too. I'm concerned that there are still some medical practitioners who are . . . Doctor Feelgoods, who are in essence supporting the recreational use of marijuana through their recommendations. I think that goes against the intent of the people when they passed the initiative. And in doing so, it kind of casts a pall over legitimate, seriously ill people, who have legitimate recommendations, and I think it's important that we respect and honor those people, too." Further describing the details of his view, Mr. Farmer suggests that these Doctor Feelgoods believe that, "if you have stress, if you're having a bad day, you know, smoke a joint, that'll make you feel better, and so that's an appropriate medical use. [ ] If the [voters] in actuality wanted to legalize it they should have taken that, and I would suggest could have taken that, step. They didn't do it." Mr. Farmer doesn't seem to distinguish between a physician treating what is regarded as a "serious" illness, albeit on the frontiers of what Mr. Farmer may consider to be "mainstream medicine," and --- outright legalization. His argument projects an illogical, illegitimate view.This particular failure to distinguish between what conventionality may have desired, and what the letter and spirit of the new law now requires, is not the district attorney's only such lapse in legal perspective. According to Mr. Farmer, "[v]irtually every other medicine goes through an extensive testing process. Lots and lots of lawyers are hired to develop nicely worded standards. In this case, the decision was neither medical or legal. It was political. [S]o, we have to take that rather imprecise statement of political intent and make that workable in the day to day world."Dismissing P215 as simply, "political," somehow outside of the necessary category for respect, of being "legal," demonstrates an attitude toward this new law that should not linger long upon the clipboards of an appeals court panel. After several years of failure to provoke the required heavy lifting for this issue around the halls of the capitol, P215 was structured in a manner resistant to the shifting of political sandstorms. If a Voter Initiative Statute isn't law, in its most genuine form, then it is very difficult to understand how concepts are being used in good faith by Mr. Farmer.Justice Klein is reluctant "on th[e] record" of fact and law in the Peron case to approach potential solutions.Obviously, the ability of the majority opinion to use the portion of P215 dealing with implementation by some level of government, to establish the illegitimacy --- rather than the legitimacy --- of the distribution system at issue, starkly portrays reasons for Justice Klein's reservations.Unless some manner of theoretical legal argument is presented, that resolves these dilemmas based upon a case involving the favorable reception of a governmental implementation program of distribution, the judicial system (as opposed to a legislative system) lacks the tools with which to come to this issue. It can only distinguish the frauds, not vindicate real solutions.One legal device that exists, along the lines strongly alluded to by Justice Klein, is the operation of a municipal ordinance, or even a countywide ordinance, that acts to satisfy the regular kind of exceptions clauses found in conventional law code language. The most important section that remains to be legally navigated, section 11360, contains such a caveat. Courts are yet to consider this argument for natural accommodation of medicinally oriented distribution within such a legal framework, although it presents itself as the most logical of several approaches to this issue.Before implementation progress on this level becomes possible however, Mr. Farmer must reconsider his views on the roles of physicians and law enforcement in this new law. With as much gentle patronage as cordiality allows, the District Attorney explains that, "Part of my overall concern, [since] the beginning and it [ ] refined during the AG's discussion is:The whole Dr. Feelgood issue ---- Who looks at the recommendations and who passes on that? Whether or not they are, in fact, appropriate.I think that [this authority] ought to belong in the medical community, but I think there's been an abgrogation of responsibility. [ ] They don't see themselves as [having] this be part of their responsibility. It really is the responsibility of law enforcement, but law enforcement doesn't really like the responsibility because it's outside of our realm. And yet, I feel in a position that I have to do it, because nobody else is."Mr. Farmer continues, "Frankly, until the medical community makes some decisions about the place of marijuana as a legitimate medicine this has become a legal problem because it has been made a medicine by initiative law --- not by law that has been considered, debated, evaluated and passed by the legislature, not by sound policy that has been established by the research and medical community, but because the people of this state by initiative made a decision that is presumably a popular decision. But there's holes in it and it doesn't have that background."It seems to be the case that Mr. Farmer is still waging battle in an election campaign, rather than following through on his oath and his admitted desire to make P215 work, even if he does tend to disagree with it.Contriving excuses for his disability to truly cooperate, based on specious ideas of passing relevant recommendations of physicians through some kind of inquisition chamber, does no service for authentic implementation.Explaining how his approach works in an example illustrates a serious problem of unsupportable selective treatment of those claiming and possessing rights and privileges under this new law. Mr. Farmer describes that, "I review case evaluations on cases that are coming through. Well, you get a case coming in where somebody has 50 plants, and they have a [Dr.] Mikuriya card. Well, do we seize all of their plants? Do we seize all but 10 of their plants? That depends upon our . . . . Do we prosecute? Do we not prosecute? We look at the circumstances of the individual case on these questions; some we do, some we don't.""Similarly," Mr. Farmer reasons, "if there was a card system, some people would get a card., some wouldn't get a card. Well, if we're going to go to that, what standards do we want to use. Those are all open, unanswered questions that would have to be addressed." The way that this address is oriented may open it up to charges of violations of equal protection and due process.Pursuing prosecutions on a selective, case-by-case basis, that undermines plainly understood elements of the language and intent of P215 (namely the fact that the physician's judgment, not legal judgment by prosecutors, is the clear foundation for this component of the law), simply cannot withstand proper scrutiny or measures of good faith.Legal consequences of such a policy seem inevitable, especially since the federal law now recognizes a defense to cannabis use, based on a test of "medical necessity." A patient meeting that test could now potentially bring federal legal action against state officials who meaningfully obstruct such "medically necessary" access to cannabis. Broad, flexible and compassionate policy seems essential to any correct implementation program.Regarding what process exists to discover a proper implementation path for local jurisdictions, Mr. Farmer recalled that the county's P215 committee "adjourned proceedings to see what happened on the state level. Now, we know. If it's not an answer from the state, it's an indefinte continuance, . . . so we have to decide, should there be a county response?"The District Attorney continues, "I look to the committee to get a sense of ideas about where they think it ought to go. I'm fairly open in being receptive to their discussions. I certainly haven't developed any hard and fast plans of what I think this office ought to do. At this point we're still dealing with cases on a case-by-case basis. We haven't seen any requests for [cultivation in excess of the 10 plant limit]. [A county card identification system] is certainly on the table, as far as I'm concerned. There's some practical issues that need to be dealt with with respect to that: who does it, who pays for it, what do [the cards] permit you to do . . . . Some people believe that if you qualify . . . as having a defense, then you ought to get affirmative permission [for matters to be resolved at the street level, rather than a courtroom]. I'm not of that perspective. But, we can discuss all of those issues."One quite hopeful item of policy, discernable from explanations of process given by Mr. Farmer, involves the relations between county and municipal jurisdictions regarding subjects of arresting and charging, respectively. "We always act reactively, in this arena. So, we're not going to examine an Arcata decision, unless it first comes to us as part of a case that has been arrested and referred to us. So, if the Arcata Police Department has made decisions on who they're going to arrest, and who they're not going to arrest, well, we're not going to review that . . . it's not that we're going to go out and dig up cases."On such a view, for example, City of Arcata could elect to legislate a higher ceiling of plants than the 10 plant limit currently set by the district attorney. If legislative directives establishing policy for Arcata Police were to set a higher number of plants as a reasonable ceiling, such cases would not result in arrests and therefore no such cases would find their way to the district attorney for charging.Published: October 21, 1999Arcata Journal - E-Zine Magazinehttp://www.arcata.org/news/mt.ra.ppath.oct21.html
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