Radical Rant: Top Ten Myths About California’s Prop 64 (With Footnotes!)

Medical marijuana ain’t legal marijuana.

This misunderstanding of the law is at the crux of too many Californians’ opposition to Prop 64, the Adult Use of Marijuana Act. (That’s a link for a complete annotated text of Prop 64. All of the footnotes below cite the relevant part of the law.)

Prop 64 will legalize the possession and sharing by adults of one ounce of marijuana [1] and 8 grams of concentrate[2].

Prop 64 will legalize the home cultivation of six cannabis plants indoors [3], which no jurisdiction can infringe upon [4], and the home possession of all the marijuana harvested from those plants.

Prop 64 will legalize the licensure of buildings and festivals where adults may consume marijuana [5].

Prop 64 will legalize the cultivation, processing, and retailing of marijuana to adults [6].

None of those activities are currently legal in the state of California.

Prop 64 will also allow for retroactive resentencing [7] and expungement for persons convicted of marijuana felonies or misdemeanors that are reduced or legalized by the Act.

So why would any pot smoker in their right mind decide to vote with the police, prosecutors, prison guards, and other prohibition profiteers to reject marijuana legalization in California for the second time in six years? Let’s take a look at their excuses for enabling prohibition to continue in California.

MYTH #1:

“PROP 64 ISN’T NECESSARY; IT’S ALREADY LEGAL NOW UNDER PROP 215!”

FACT: MARIJUANA IS STILL CONTRABAND UNDER PROP 215

Prop 215, the 1996 California medical marijuana act, does not remove a single criminal penalty for the possession or cultivation of marijuana. It provides an immunity to prosecution on charges of possession or cultivation of marijuana.

What’s the difference? Under Prop 215, marijuana is still illegal. Because it is still criminal, the evidence of marijuana is reason enough to detain you, search you and your belongings, and seize your marijuana. Recommendation or not, you can still be ticketed, fined, and/or arrested. If you have a recommendation, you can then present that in court as a defense to the charges filed against you[8].

Prop 64 makes marijuana LEGAL. That means most of the ways cops are allowed to hassle you over weed disappear. The sight of stems and a roach in your ashtray, the cop’s claim that he can smell marijuana, the anonymous tip that you’re growing cannabis, and the drug dog’s alert on your car’s trunk are no longer valid reasons for police to detain you.

MYTH #2:

“PROP 64 KILLS OFF MEDICAL MARIJUANA!”

FACT: PROP 64 PROTECTS AND STRENGTHENS MEDICAL MARIJUANA

Pot-smoking opponents of this legalization initiative swear that it brings an end to medical marijuana in California, yet they cannot point to the text in Prop 64 where that repeal happens, except to note the Amendments section that allows legislative changes by majority vote to portions of Prop 64.

But those portions concern only the new medical marijuana additions within Prop 64 [9], not the text of Prop 215 that protects patients’ possession and cultivation rights, and concern modifications to nonmedical regulations [10], tax rates (after 2028) [11], and any reduction in penalties [12] or increase in limits (a reduction in penalty for greater amounts). Anything else the legislature wants to modify requires a two-thirds majority [13] and it must comport with Prop 64’s purpose and intent to tax and regulate nonmedical marijuana [14] and allow personal possession and cultivation rights [15].

In fact, Prop 64 explicitly protects and enhances Prop 215 in a number of ways, including child custody protection for patients [16], $100 cap on ID cards [17] with free cards for the indigent [18], medical records privacy [19], and explicit guarantees that the new limits [20], regulations [21], and licensing [22] applied to non-medical marijuana do not apply to Prop 215 patients.

Most of what Prop 64’s pot-smoking opponents complain about is the elimination of the collective/cooperative model that made up their quasi-legal dispensary system. But Prop 64 doesn’t do that; the Medical Cannabis Regulation & Safety Act (MCRSA) signed into law last year did that. (One of Prop 215’s authors, attorney Bill Panzer, explains exactly how Prop 64 does not affect Prop 215 in this article.)

MYTH #3:

“PROP 64 ‘LOCKS IN’ MCRSA SO IT CAN’T BE OVERTURNED!”

FACT: MCRSA IS THE LAW NOW AND IT’S COMPATIBLE WITH PROP 215

In response, they’ll tell you that Prop 64 “locks in” the MCRSA. The theory is that MCRSA is a legislative statute and Prop 215 is a citizen initiative, which holds greater status under California’s constitution. They believe that any day now, a lawsuit will claim MCRSA violates the intent of Prop 215, the courts will concur, MCRSA will be rendered invalid, and California goes back to the halcyon days of unregulated “Wild West” style medical marijuana collectives that are banned throughout may parts of the state. But if we pass Prop 64, a citizen initiative, that somehow “elevates” MCRSA into something that courts cannot find incompatible with Prop 215.

Seriously. They want you to reject legalization for at least four years on the crackpot theory that a lawsuit might be filed that might win and might overturn recent laws so we might go back to the exact lack of regulation that started this mess.

In reality, they’re pinning their hopes on a fantasy based on misunderstanding. The People v. Kelly case determined that Prop 215 only protects the right of patients to personally possess and cultivate marijuana without fixed limitation by statute [23]. The unregulated collectives [24] they long for were established by Senate Bill 420, which MCRSA has superseded [25]. MCRSA can’t violate Prop 215 whether Prop 64 passes or not, since MCRSA doesn’t infringe on possession and cultivation in Prop 215 or set any fixed personal limits unapproved by voters, it just regulates the commercial medical market it replaced in SB 420.

MYTH #4: “PROP 64 KILLS SMALL BUSINESSES, CREATES HUGE MONOPOLY!”

FACT: PROP 64 HAS STRONG ANTI-MONOPOLY PROTECTIONS AND FAVORS EXISTING PROVIDERS

Other objections to legalization include those who feel Prop 64 sets up the cannabis market to be taken over exclusively by large corporate interests. Some point to the donations by George Soros, the billionaire philanthropist, and his stock holdings in agriculture behemoth Monsanto, as evidence of Prop 64’s ulterior motives.

Oddly, though, these Prop 64 haters who are defending Prop 215 from George Soros forget that it was George Soros who ponied up the money necessary to rescue Prop 215 from the brink of electoral failure in 1996. Even stranger, the other legalization initiatives they favored (CCHI [26] and MCLR [27]), which perennially fail to make the ballot, have far fewer protections against corporations dominating the weed market than Prop 64 has, and instead trust the same legislature with establishing fair and equitable licensing procedures that they fear will abuse Prop 64.

Prop 64’s encouragement of small business begins with the licensing, which will be given first to the existing medical marijuana businesses [28] until 2020. During the licensing process, regulators have discretion to deny licenses if they’d lead to unfair competition [29] or monopolistic practices [30].

Prop 64 also removes a requirement that distributors be independent and allows “vertical integration” [31] and “microbusiness” licenses [32] that allow a small farmer to be his own processor and retailer. Prop 64 adds a residency requirement [33] through 2019 and removes the restriction against licensing folks who’ve gotten previous marijuana or some drug felonies [34].

MYTH #5: “PROP 64’S IMMORAL TAXES WILL INFLATE MARIJUANA PRICES!”

FACT: LEGAL MARIJUANA STATES’ PRICES ARE FAR LOWER, EVEN WITH TAXES

Pot-smoking opponents of Prop 64 lament that it establishes a 15 percent excise tax [35] and a $9.25-per-ounce cultivation tax [36], and even medical marijuana patients will have to pay it. On the subject of morality, I agree. It is wrong for governments to balance budgets by taxing people’s medicine.

However, as a practical matter, it is more immoral to maintain the prohibition that creates a risk tax on medicine just as bad as a pharmaceutical corporation’s obscene markup on cheap pills.

In Washington state, where the worst marijuana legalization is in effect, where consumers have no home-grow rights, where statewide production canopy is artificially capped, and where the excise tax is 37 percent, the average retail price of marijuana is around $9 per gram, with tax included. This is down from a previous high of $25 per gram in recreational and $12 per gram in medical outlets.

In Colorado, they are down below $7 per gram and had 4/20 specials in the $5 per gram range, and that’s down from the $8 per gram range. Oregon is experiencing a similar dramatic drop in price. Legalization increases supply and competition while reducing difficulty and risk – the legal production cost of a pound could be less than what they’re charging for an ounce in California dispensaries [37].

So yes, if a $300 ounce gets $9.25 plus another 15 percent tacked on, that ounce ($355.64) becomes 18.5 percent more expensive in the short run. But as competition and increased production drop that ounce down to $200, the added taxes still leave the patient paying 19.8 percent less ($240.64) than the untaxed medical $300 ounce in the long run.

But a $200 ounce is still a high estimate. RAND Corporation studied the matter and concluded that legalization in California makes $100-to-$150 ounces realistic and prices as low as $38 an ounce within the realm of possibility.

Besides, if Prop 64 gave an effective 18.5 percent tax break to patients, California’s nearly non-existent recommendation requirements would lead to every pot smoker being a patient and California raising no tax revenue. That, in turn, would motivate the legislature to make it much harder to get a recommendation so more tokers are pushed into the taxed market. Paying your taxes, therefore, is the price of not having to collect years of medical records, submit to annual exams, and have some objectively verifiable condition aside from Arrest Anxiety Syndrome or Wannapotshopitis to get your medical card

Footnotes below.

Friday: Part two of the Top Ten Myths About California’s Prop 64.

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For all of High Times’ legalization coverage, click here.

And click right here for all of our dispatches on the Prop 64 race in California. 

 

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[1] §11362.1(a) [it shall be lawful… for persons 21 years of age or older to:] (1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;

[2] §11362.1(a) [it shall be lawful… for persons 21 years of age or older to:] (2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products;

[3] §11362.1(a) [it shall be lawful… for persons 21 years of age or older to:] (3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;

[4] §11362.2(b)(2) Notwithstanding paragraph (1) no city, county, or city and county may completely prohibit persons engaging in the actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1. [Personal Possession & Cultivation] inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure.

[5] §26200(d) Notwithstanding paragraph (1) of subdivision (a) of Section 11362.3. [Personal Use Restrictions] of the Health and Safety Code, a local jurisdiction may allow for the smoking, vaporizing, and ingesting of marijuana or marijuana products on the premises of a retailer or microbusiness licensed under this division if: (1) Access to the area where marijuana consumption is allowed is restricted to persons 21 years of age and older; (2) Marijuana consumption is not visible from any public place or non-age restricted area; and (3) Sale or consumption of alcohol or tobacco is not allowed on the premises.

[6] §26000(a) The purpose and intent of this division is to establish a comprehensive system to control and regulate the cultivation, distribution, transport, storage, manufacturing, processing, and sale of nonmedical marijuana and marijuana products for adults 21 years of age and over.

[7] §11361.8(a) A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with Sections 11357. Possession, 11358. Planting, harvesting, or processing, 11359. Possession for sale, 11360. Unlawful transportation, importation, sale, or gift, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by this Act.

[8] People v. Mower decision “established a two-step process for patients who are arrested. First, they are entitled to a pretrial hearing, where they can have their cases dismissed if they show a ‘preponderance of evidence’ that they are legal patients. Afterwards, if they are brought to trial, they need only raise a ‘reasonable doubt’ to prove their innocence.” [Source: California NORML]

[9] SECTION 10: This Act shall be broadly construed to accomplish its purposes and intent as stated in Section 3 PURPOSE AND INTENT. The Legislature may by majority vote amend the provisions of this Act contained in Sections 5 USE OF MARIJUANA FOR MEDICAL PURPOSES….

[10] SECTION 10: … and 6 MARIJUANA REGULATION AND SAFETY. to implement the substantive provisions of those sections…

[11] §34019(h) Effective July 1, 2028, the Legislature may amend this section by majority vote to further the purposes of the Control, Regulate and Tax Adult Use of Marijuana Act, including allocating funds to programs other than those specified in subdivisions (d) and (f) of this section…

[12] SECTION 10: … The Legislature may by majority vote amend, add, or repeal any provisions to further reduce the penalties for any of the offenses addressed by this Act. …

[13] SECTION 10: … Except as otherwise provided, the provisions of the Act may be amended by a two-thirds vote of the Legislature to further the purposes and intent of the Act.

[14] SECTION 3: The purpose of the Adult Use of Marijuana Act is to establish a comprehensive system to legalize, control and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical marijuana, including marijuana products, for use by adults 21 years and older, and to tax the commercial growth and retail sale of marijuana.

[15] SECTION 3(l) Permit adults 21 years and older to use, possess, purchase and grow nonmedical marijuana within defined limits for use by adults 21 years and older as set forth in this Act.

[16] §11362.84 The status and conduct of a qualified patient who acts in accordance with the Compassionate Use Act shall not, by itself, be used to restrict or abridge custodial or parental rights to minor children in any action or proceeding under the jurisdiction of family or juvenile court.

[17] §11362.755(b) In no event shall the amount of the fee charged by a county health department exceed $100 per application or renewal.

[18] §11362.755(d) Upon satisfactory proof that a qualified patient, or the legal guardian of a qualified patient under the age of 18, is a medically indigent adult who is eligible for and participates in the County Medical Services Program, the fee established pursuant to this section shall be waived.

[19] §11362.713(a) Information identifying the names, addresses, or social security numbers of patients, their medical conditions, or the names of their primary caregivers, received and contained in the records of the Department of Public Health and by any county public health department are hereby deemed “medical information” within the meaning of the Confidentiality of Medical Information Act (Civil Code § 56, et seq.) and shall not be disclosed by the Department or by any county public health department except in accordance with the restrictions on disclosure of individually identifiable information under the Confidentiality of Medical Information Act.

[20] §11362.3(f) Nothing in this section shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996.

[21] §11362.45(i) [Nothing in section 11362.1. [Personal Possession & Cultivation] shall be construed or interpreted to amend, repeal, affect, restrict, or preempt:] Laws pertaining to the Compassionate Use Act of 1996.

[22] §26067(1) This section does not apply to the cultivation of marijuana in accordance with Section 11362.1. [Personal Possession & Cultivation] of the Health and Safety Code or the Compassionate Use Act.

[23] People v. Kelly decision: “The prosecutor’s argument was improper. It was improper because the CUA [Compassionate Use Act] can only be amended with voters’ approval. Voters, however, did not approve the eight-ounce limit and other caps in section 11362.77 [of SB420]; hence, section 11362.77 unconstitutionally amends the CUA.”

[24] Senate Bill 420 “Recognizes the right of patients and caregivers to associate to collectively or cooperatively to cultivate medical marijuana.” [Source: California NORML]

[25] MCRSA, not Prop 64, ended collectives by establishing: “The provision in SB 420 affording legal protection to patient collectives and cooperatives, HSC 11362.775, shall sunset one year after the Bureau posts a notice on its website that licenses have commenced being issued. After that date, all cannabis collectives will have to be licensed, except for individual patient and caregiver gardens serving no more than five patients.”

[26] CCHI §III(a) Within 6 months of the passage of this Act, the legislature is required upon thorough investigation, to enact legislation using reasonable standards which are compatible with the provisions of this Act to: 1.(A) license concessionary establishments to distribute cannabis hemp euphoric products in a manner analogous to California’s beer and wine industry model.

[27] MCLR §27400. Implementation. It shall be the responsibility of the Legislature to implement any regulations necessary for this Act.

[28] §26054.2(a) A licensing authority shall give priority in issuing licenses under this division to applicants that can demonstrate to the authority’s satisfaction that the applicant operated in compliance with the Compassionate Use Act and its implementing laws before September 1, 2016, or currently operates in compliance with Chapter 3.5 of Division 8.

[29] §26052(a) No licensee shall perform any of the following acts, or permit any such acts to be performed by any employee, agent, or contractor of such licensee: (3) Make a sale or contract for the sale of marijuana or marijuana products, or to fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement or understanding that the consumer or purchaser thereof shall not use or deal in the goods, merchandise, machinery, supplies, commodities, or services of a competitor or competitors of such seller, where the effect of such sale, contract, condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in any line of trade or commerce;

[30] §26051(a) In determining whether to grant, deny, or renew a license authorized under this division, a licensing authority shall consider factors reasonably related to the determination, including, but not limited to, whether it is reasonably foreseeable that issuance, denial, or renewal of the license could: (1) allow unreasonable restrains on competition by creation or maintenance of unlawful monopoly power;

[31] §26053(c) Except as provided in subdivision (b), a person or entity may apply for and be issued more than one license under this division.

[32] §26070(3) “Microbusiness,” for the cultivation of marijuana on an area less than 10,000 square feet and to act as a licensed distributor, Level 1 manufacturer, and retailer under this division…

[33] §26054.1(a) No licensing authority shall issue or renew a license to any person that cannot demonstrate continuous California residency from or before January 1, 2015. In the case of an applicant or licensee that is an entity, the entity shall not be considered a resident if any person controlling the entity cannot demonstrate continuous California residency from and before January 1, 2015. (b) Subdivision (a) shall cease to be operable on December 31, 2019 unless reenacted prior thereto by the Legislature.

[34] §26057(5) Except as provided in subparagraphs (D) and (E) of paragraph (4) and notwithstanding Chapter 2 of Division 1.5, a prior conviction, where the sentence, including any term of probation, incarceration, or supervised release, is completed, for possession of, possession for sale, sale, manufacture, transportation, or cultivation of a controlled substance is not considered substantially related, and shall not be the sole ground for denial of a license. Conviction for any controlled substance felony subsequent to licensure shall be grounds for revocation of a license or denial of the renewal of a license.

[35] §34011(a) Effective January 1, 2018, a marijuana excise tax shall be imposed upon purchasers of marijuana or marijuana products sold in this state at the rate of fifteen percent (15%) of the gross receipts of any retail sale by a dispensary or other person required to be licensed pursuant to Chapter 3.5 of Division 8 of the Business and Professions Code or a retailer, microbusiness, nonprofit, or other person required to be licensed pursuant to Division 10. Marijuana of the Business and Professions Code to sell marijuana and marijuana products directly to a purchaser.

[36] §34012(a) Effective January 1, 2018, there is hereby imposed a cultivation tax on all harvested marijuana that enters the commercial market upon all persons required to be licensed to cultivate marijuana pursuant to Chapter 3.5 of Division 8 of the Business and Professions Code or Division 10. Marijuana of the Business and Professions Code. The tax shall be due after the marijuana is harvested. (1) The tax for marijuana flowers shall be nine dollars and twenty-five cents ($9.25) per dry­weight ounce.

[37] RAND Study on Estimated Cost of Production for Legalized Cannabis: “In such circumstances we would estimate production costs for sinsemilla of $200 – $400 per pound, plus another $20 – $35 per pound for harvesting and processing. Such costs are roughly comparable to current prices per ounce, and are about a factor of ten lower than the current pound price for sinsemilla in the U.S.”

 

 

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