By I. smiley G. Calderón | firstname.lastname@example.org
Happy New Year! They say hindsight is 2020, but so is our new year. As we usher in the “Roaring Twenties” of our 21st century, what can we say we have learned about the cannabis condition in our Central Valley communities?
Well, yes, we still know that cannabis (often called “marijuana”) remains federally illegal – that hasn’t changed any, unfortunately. It was branded a “Schedule I” drug a few decades ago “with no currently accepted medical use and a high potential for abuse” by the Controlled Substances Act of 1970. And it has been held hostage there ever since. 50 dark years and counting.
Many organizations are currently lobbying to change our federal prohibition of cannabis, but it’s an uphill battle. When I spoke with Matt Simon, Legislative Analyst at Marijuana Policy Project (MPP) about this struggle, he put it in a national context. He reminded me that in some parts of the country, possession of cannabis is still a felony. “The struggle is real,” Matt told me. According to MPP, someone is arrested for a “marijuana offense” in the U.S. every 48 seconds. To think in our modern era – within the same “united” nation – that one state offers a safe haven for something that another state finds so offensive that it criminalizes possession as a felony is staggering. And egregious. This whole mess is nationally confusing and unfair. But, Matt reminded me: the key is to keep fighting, to continue lobbying and pushing for progressive cannabis legislation. And he’s right. After all, MPP’s motto is, “We change laws.” Focusing on sensible cannabis laws is critical.
And, thanks to our nation’s confusing hierarchy and structure of laws, individual progressive states have legally been able to circumvent them and slip through the cracks by enacting their own pro-cannabis laws and ordinances, in direct opposition to the Feds. This has been great news for pro-cannabis Californians benefitting from some of the most progressive cannabis laws in the country and the world.
It all started with California’s 1996 “Compassionate Use Act,” Proposition 215. And, although this is old news in light of more recent legal developments, this “Medical Marijuana” law is still active. It provides some essential legal protections for medical cannabis users that nonmedical users can’t benefit from.
But, let’s be clear here: cannabis is cannabis – whether we call it “medical” or “recreational” does not make it any less of a medicine. It’s the same stuff. (Okay, typically those strains with increased CBD content or higher percentages of THC – are called “medical” – but that’s just marketing tactics). Really, the only difference between “medical” and “nonmedical” is found in the status of the user. So, if a user has a “Medical Marijuana License” – a physician’s recommendation for cannabis – this user is legally considered a patient. On the other hand, up until the recent passage of Proposition 64 in 2016, “The Adult Use of Marijuana Act,” (AUMA), if a user was caught with cannabis without a physician’s recommendation, he or she would just be another drug-using criminal in California.
With the contentious U.S. history of cannabis legislation in mind, it’s nice for nonmedical cannabis users to finally be treated like adults in the golden state. But are they really?
THE REGION AND COUNTY
With the passage of Prop 64, it became legal for Californians over 21 anywhere in the state to possess, process, transport, and even give away for free (to other adults over 21) up to an ounce of cannabis. And now, adults can cultivate up to six cannabis plants at their residence for personal use, too.
But, Central Valley county government officials have also taken clever advantage of the loopholes within this Act. It affords local governments the freedom to “enact and enforce reasonable regulations to reasonably regulate” how and even if residents can grow their voter-approved, California-sanctioned six cannabis plants.
And Fresno County is not innocent of these governmental games, either. It reminds residents on its website that AUMA affirms “that cities and counties may completely prohibit outdoor planting and cultivation of marijuana” and that “cities and counties may completely prohibit the establishment or operation of businesses engaged in commercial nonmedical marijuana activity.” And with this notice, Fresno County declares: “The establishment or operation of a business engaged in commercial marijuana activity is prohibited in all Zone Districts of the unincorporated territory of Fresno County.” They make it clear: “Possession, planting, cultivation, harvesting, drying, or processing outdoors on the grounds of a private residence is prohibited in all Zone Districts of the unincorporated territory of Fresno County.” According to Fresno County, medical marijuana dispensaries are also illegal, and medical marijuana users are not permitted to cultivate their own cannabis within the county, either.
It’s confusing to be sure, as the distinction between commercial, personal, and medicinal is unclear. So, what does the state law really say?
As mentioned above, Prop 64 made possession of up to an ounce of cannabis legal for adults over 21 anywhere in California. Specifically, section 11362.1(a) of the Health and Safety Code reads: “It shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to 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 [one ounce] of marijuana…and not more than 8 grams of marijuana in the form of concentrated cannabis…” It also states that it is lawful to “possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants.”
So, how can Fresno County apparently prohibit the state-sanctioned cultivation of cannabis for its residents over 21?
Well, the next section of the Health and Safety Code, section 11362.2(a), sheds some light: “Personal cultivation of marijuana under paragraph (3) of subdivision (a) of Section 11362.1 is subject to the following restrictions: (1) A person shall plant, cultivate, harvest, dry, or process plants in accordance with local ordinances…”
“In accordance with local ordinances…” How convenient.
But the next part of the section, paragraph (2), provides some guidelines: “The living plants and any marijuana produced by the plants in excess of 28.5 grams are kept within the person’s private residence, or upon the grounds of that private residence (e.g., in an outdoor garden area), are in a locked space, and are not visible by normal unaided vision from a public place.
So, this is one of the sections of the Adult Use of Marijuana Act that Fresno County is using to justify its prohibition of cannabis cultivation. When certain counties declare that cannabis “possession, planting, cultivation, harvesting, drying, or processing outdoors on the grounds of a private residence is prohibited in all Zone Districts,” they cleverly forget to mention that the critical word justifying their prohibition is “outdoors.” That is, some counties want cannabis users to believe that any cannabis activity on the grounds of a private residence within their jurisdiction is illegal. But, this is simply not true. Lawful cannabis activity under Proposition 64 is entirely legal inside a private home. Outside is a different matter.
Let’s go back to the text of AUMA for clarification. Section 11362.2(b), paragraph 2, states: “Notwithstanding paragraph (1) [A city, county, or city and county may enact and enforce reasonable regulations to reasonably regulate]…no city, county, or city and county may completely prohibit persons engaging in the actions and conduct of subdivision (a) of Section 11362.1 [possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants] 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.”
Clearly, Prop 64 gives Central Valley adults over 21 the right to possess and cultivate their personal cannabis inside their private residences even within Fresno County.
Not only that, but this same section of the Act’s text also clarifies that local governments must equally allow cannabis cultivation inside “an accessory structure to a private residence…that is fully enclosed and secure.” Greenhouse, anyone? As long as it’s out of public view, it’s legal.
Unfortunately, however, this antagonistic, backward-thinking Central Valley county still bullheadedly at war with cannabis on some fabricated justification of “health and safety concerns for their residents” do have the law behind them when it comes to prohibiting cannabis cultivation outdoors – even at a private residence on private grounds. Their justification is found in paragraph 3 of the same 11362.2(b) section: “Notwithstanding paragraph (3) of subdivision (a) of Section11362.1 [the right to possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants], a city, county, or city and county may completely prohibit persons from engaging in actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1 [the right to possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants] outdoors upon the grounds of a private residence.” There it is, another loophole.
But, keep in mind, this prohibition is only for outdoor cannabis cultivation that is not “inside an accessory structure to a private residence.” Once again, as long as it’s inside something, it’s legal.
It’s sad to know that when our Central Valley county officials are given the right and duty to “enact and enforce reasonable regulations to reasonably regulate” lawful outdoor personal cannabis cultivation at a private residence, they choose the most extreme option of prohibition. And, they make it appear that their local prohibition ordinances trump state law. They cleverly cite state law to justify and defend their limited right to prohibition and to make their residents believe that California state law doesn’t matter in the Central Valley when it comes to cannabis. How shamefully shady.
Which is why I love the next paragraph of section 11362.2(b). Article 4 states: “Paragraph (3) of this subdivision shall become inoperative upon a determination by the California Attorney General that nonmedical use of marijuana is lawful in the State of California under federal law, and an act taken by a city, county, or city and county under paragraph (3) shall be deemed repealed upon the date of such determination by the California Attorney General.” Which is to say, if the federal government were to make cannabis legal, Prop 64 ensures that Fresno County’s prohibition on lawful outdoor cannabis cultivation at private residences (as allowed for in paragraph 3) would become inoperative and repealed. How about that for progressive, forward-thinking!
And forward-thinking is what is needed in these backward times.
Prop 64 is a step forward for California, but more steps are needed. Change happens at the grueling grassroots level. For example, California’s branch of the National Organization for the Reform of Marijuana Laws (NORML), a non-profit membership organization dedicated to reforming cannabis laws, has been working to change cannabis laws since the 1970s when it successfully lobbied the state legislature to pass the Moscone Act, a landmark law that essentially decriminalized cannabis possession (of less than an ounce) from a felony to a misdemeanor, with a maximum fine of $100. Some 20 years later, NORML spearheaded California’s first real successful cannabis reform with the passage of Prop 215 for medical users. And, some 20 years after that, in 2016, NORML worked to help advance California cannabis freedom for all (adults over 21) with the passage of AUMA. The fine folks at NORML have been putting in the work – and reaping positive change. Despite the successes, however, NORML understands that more is needed: “Prop 64 will not be the last word on marijuana reform; further changes in state and federal law will be needed to guarantee affordable medical access, protect employment and housing rights, facilitate banking and allow interstate commerce.” One step at a time.
The big news at the end of 2019 was the surprise veto on Monday, December 23rd, by City of Fresno’s lame-duck, Mayor Lee Brand. He vetoed the Cannabis Retail Business and Commercial Cannabis Business City Ordinance that had passed over a year ago as Bill No. B-66, but which, among other changes, has undergone a few critical social equity reforms, some of which the mayor apparently did not agree with.
I talked with a city council member about this stunt. What a weird time to veto such a controversial and much-anticipated city ordinance, I mentioned. Holiday season veto? Or maybe it was done just in time to meet a city deadline. In any matter, Mayor Brand made a symbolic point against the City of Fresno’s new green era. Unfortunately, now, it’s back to the drawing board for the council on this ordinance. But, with a few adjustments and compromises with the mayor, hopefully, it will get back on track. Mayor Brand objected to four items in the ordinance, one simply being the number of days that cannabis shops should keep their security video footage on file. Hopefully, that’s an easy fix.
But, another objection that the mayor had was with one of the new social equity components of the ordinance. The proposed law would’ve mandated social policy employee criteria for cannabis businesses that would require hiring former foster youths, veterans, or those convicted of a cannabis-related crime. The mayor felt that social equity cannabis business applicants would not be able to run their businesses as well as non-social equity applicants, citing the ordinance’s employee mandates as too demanding.
There is plenty of time for city officials to hammer out the details and fix whatever is necessary to get the mayor on board if, in fact, his objections are ones that he’s looking to compromise on. The city is still in the process of its mandatory environmental review before the ordinance would be put into effect, and the first legal cannabis dispensary storefront is opened. That’s likely many months away anyway.
But the vital part in knowing about this veto is that it doesn’t veto the right of any adult over 21 to possess or consume up to one ounce of cannabis in the city of Fresno. Although that might have been the intended perception, or message – to scare or fool residents into believing their right to cannabis has somehow been revoked – the truth is that the veto is only a speed bump for cannabis businesses who are fighting for a big piece of the lucrative pie. This market share – the consumers of cannabis in Fresno – remain protected by Props 215 and 64, despite Mayor Brand’s veto.
THE FINAL WORD
This whole marijuana marketplace and cannabis condition here in the Fresno area can get pretty damn complicated. I wanted to make sense of all of this so, I turned to the best: The Pot Brothers at Law – California’s award-winning marijuana business and criminal defense lawyers – brothers Craig and Marc Wasserman. I had seen their popular social media posts online (www.potbrothersatlaw.com). They are something of celebrities in the cannabis community and known for their “no bullshit” approach to giving crucial legal advice. And, the brothers are the only marijuana attorneys that will publicly smoke cannabis and medicate. So, in addition to being legal sharpshooters, they’re intimately connected to the fight as well. According to their website, they “are on a journey to end Cannabis Prohibition and educate all U.S. Citizens about their constitutional rights when dealing with law enforcement.” So, I thought, what the hell, let me reach out to them and see if they even respond.
And Marc did. I was shocked.
With over a half a million social media followers (and counting), a thriving law firm to manage, podcasts, and an exciting upcoming cannabis radio talk show, among many other ventures, I was fortunate to secure a telephone interview with the very busy renaissance man himself, Mr. Marc Wasserman.
Our interview went great.
I explained to him the frustration and confusion with the Fresno County ordinances. How Fresno County appears to have successfully outlawed all nonmedical cannabis despite state law. So, Mr. Wasserman went over state law with me. He told me that it wasn’t uncommon for rural counties to continue to oppose cannabis legalization despite the passage of Props 215 and 64. He said certain counties and cities employ scare tactics to keep their residents in the dark about their cannabis rights and freedoms. His remedy: “Initiate a recall on those numskulls!” And Mr. Wasserman is right – “You have to push back!” – if local elected officials got enough heat from their constituents and received enough letters and phone calls in opposition to their frivolous cannabis prohibition ordinances, they would certainly get with the program and adhere to the spirit of Props 215 and 64 – or get replaced by someone who will.
We also discussed the practical differences between both Propositions. For example, Prop 64 users – nonmedical consumers – can only consume their cannabis at a private residence, whereas Prop 215 users – medical consumers (with a valid physician’s recommendation) can consume their cannabis virtually anywhere tobacco smoke is permitted. Mr. Wasserman explained that Medical cannabis users do not need to be trapped at home to medicate like nonmedical users. It is legally okay for medical users to light up practically anywhere. Medical users can even legally smoke in their car if it is not being operated, and when on a boat, they can also consume their medicine so long as they are not the ones running it. Cannabis is not something to be ashamed of, and Mr. Wasserman is convinced that there is no such thing as a “lazy stoner” – just lazy people who make cannabis look unproductive, harmful, or immoral. Over the years, it’s been his personal mission to destigmatize cannabis and prove wrong the stereotypes of its users.
Another big difference between Props 215 and 64 is the amount of cannabis that medical and nonmedical users can possess or cultivate. As already mentioned above, Prop 64 allows for possession of up to one ounce of cannabis and cultivation of up to six plants. Prop 215, on the other hand, provides for whatever the prescribing physician recommends for treatment, typically no more than eight ounces of cannabis and cultivation of six mature or twelve immature plants at any given time.
Clearly, as Mr. Wasserman hinted, becoming a medical cannabis user is still the best option for maximum protection and freedom in these crazy, contradictory Cannafornication times. Cannabis, both simultaneously forbidden and much desired, must stand the test of time into a new era.