News » Proposition 19 Series: Blow-by-Blow of the Legislation Itself





Early this month, we began a series on Proposition 19. We started with an introduction to who I am and where I come from in regards to this historic legislation, then looked at the false claims made by the Yes on 19 crowd and the No on 19 crowd. Now, we are going to finish this series with a hard, line-by-line, blow-by-blow look at the text of the legislation itself.

Before we get started, you as a reader need to do two things, which I hoped the first installments of this series would set in motion. First, you should put aside all of the hearsay claims made by the various proponents and detractors of the proposition. What they’ve told you may or may not be true. Remember, if it’s not written in the legislation, it’s not going to happen.

Second, I want you to think about the world around you and how it may or may not change if this legislation passes in November. Some things will change for certain, others are only speculative. For example, we know for sure that changes from the recent passage of SB 1449 will largely become nullified with Proposition 19 and we know that the State of California will not bring in a dime’s worth of taxes from marijuana’s legalization. We, however, do not know if more people will use pot, whether the Mexican drug cartels will lose substantial income, or even whether local jurisdictions will have a higher tax income or how long it will take for each of them to decide on their rules for controlling MJ in their jurisdictions – many areas took years, once medical marijuana was legalized, to finally get around to creating regulations for it.

So let’s get started. We will be referring to the full text of the legislation known as Proposition 19, as given by the California Voter’s Guide on CA.gov. This analysis will go section by section through the six columns (3 pages) of text. Text will not fully be reproduced here, but is often excerpted, to save space. It’s recommended that you open the original for reference.

Proposition 19 – The Regulate, Control and Tax Cannabis Act of 2010

Section 1 names the proposition, which is how it will be known both on the ballot and, if it passes, in future discussion of the legislation. For instance, a litigator will not reference “Prop 19″ five years from now in a courtroom. Instead, the lawyer will reference “The Regulate, Control and Tax Cannabis Act of 2010.”

Section 2. Findings, Intent and Purposes.

This section gives the findings and statement of intent and the declared purpose of the Act. The majority of commentary around the Web seems to focus on this section of the legislation despite the fact that it is of only secondary importance to the law as a whole. Proposition 19 will make actual changes to the State Code (the law) while this section of the Act will only come into play should the newly-changed Code itself come under question.

For the purpose of clarity and because of its secondary importance to the law, we will skip Section 2 and reference it, as it might be used in court, as we consider Sections 3-6 of the Act.

Section 3.

Article 5 (commencing with Section 11300) is added to Chapter 5 of Division 10 of the Health and Safety Code, to read:

Division 10 of the HSC is the portion created by the Uniform Controlled Substances Act, which covers controlled substances both legal and illegal for use in medicine. Chapter 5 of that is the Use of Controlled Substances section which currently has four Articles (sub-sections) numbered 11210-11256. These deal with controlled substances that are considered illegal, but used medically for the treatment of addicts, animals, and the rules for sales without prescription. Section 3 of Prop 19 adds a new section, numbered 11300+, to this part of the Code, so all of Section 3 of the Proposition is new text adding to existing code, rather than amending it.

Article 5. Lawful Activities

11300. Personal Regulation and Controls.

(a) Notwithstanding any other provision of law, it is lawful and shall not be a public offense under California law for any person 21 years of age or older to:

A lot has been said about the term “notwithstanding” here. It’s a relatively common legal term used in legislation to declare a law dominant over all preceding laws that might be related or effected by the new law. In case law, this term usually means that the law has changed and if previous laws before it banned or encouraged an activity, those laws are now subordinate to the new law.

In the case of 11300 here, this means all laws pertaining to the possession, cultivation, processing, sharing, or consuming of marijuana. The trouble here is that it may or may not affect current medical marijuana statutes. Remember, medical marijuana is in a different Chapter of the code, but so are the offenses and penalties (both in Chapter 6) for possession and use of cannabis.

The question of how it will affect HSC Chapter 6 in regards to punishments (all held in HSC 11357-11362.9) is generally answered by the wording of those codes, which use the term “except as authorized by law” or similar. This means, obviously, that the new additions to Chapter 5 by Proposition 19 will rescind or change how these sections of Chapter 6 are applied.

Medical Marijuana, however, is a little different. In Article 2.5 of Chapter 6 (HSC 11362.7-11362.83, created by SB 420 in 2003), California’s current MMJ program is codified. The legalization of medical cannabis, however, is covered in HSC 11362.5. That falls under the penalties (Article 2) section, being created by the Compassionate Use Act of 1996.

11362.5 is ambiguous in its wording and because it came before the changes made by The Regulate, Control and Tax Cannabis Act of 2010, it is subordinate to it. This means anything “notwithstanding” in Prop 19 could affect the MMJ codes. There has been much debate over this with some questioning whether it would or wouldn’t change the existing medical cannabis rules. Looking back to Section 2, Part C Intent, we see that 11362 is not mentioned in either the laws the Act intends to limit or not limit. This leaves the effect of Prop 19 on medical marijuana codes open to interpretation.

Whether or not a court will include Section 2, Part B, #7 – which is the only part of the Act that explicitly references current MMJ laws – is questionable since this section begins “Ensure, if a city decides not to tax and regulate the sale of cannabis…” This could be read to mean that the exemptions for MMJ only apply if a city has not elected to allow commercial sales of marijuana. In other words, if a city allows the commercial sale of marijuana, all restrictions or changes made to personal use and consumption via Proposition 19 could be interpreted as including medical cannabis. Keep that in mind as we continue.

(1) Personally possess, process, share, or transport not more than one ounce of cannabis, solely for that individual’s personal consumption, and not for sale.

(2) Cultivate, on private property by the owner, lawful occupant, or other lawful resident or guest of the private property owner or lawful occupant, cannabis plants for personal consumption only, in an area of not more than 25 square feet per private residence or, in the absence of any residence, the parcel. Cultivation on leased or rented property may be subject to approval from the owner of the property. Provided that, nothing in this section shall permit unlawful or unlicensed cultivation of cannabis on any public lands.

(3) Possess on the premises where grown the living and harvested plants and results of any harvest and processing of plants lawfully cultivated pursuant to paragraph (2), for personal consumption.

(4) Possess objects, items, tools, equipment, products, and materials associated with activities permitted under this subdivision.

(b) “Personal consumption” shall include, but is not limited to, possession and consumption, in any form, of cannabis in a residence or other nonpublic place, and shall include licensed premises open to the public authorized to permit on-premises consumption of cannabis by a local government pursuant to Section 11301.

(c) “Personal consumption” shall not include, and nothing in this act shall permit, cannabis:

(1) Possession for sale regardless of amount, except by a person who is licensed or permitted to do so under the terms of an ordinance adopted pursuant to Section 11301.

(2) Consumption in public or in a public place.

(3) Consumption by the operator of any vehicle, boat, or aircraft while it is being operated, or that impairs the operator.

(4) Smoking cannabis in any space while minors are present.

This section is the meat of the matter. It’s the personal use half of the major portion of the proposition. Parts 1 through 3 are fairly straight forward. These allow anyone over the age of 21 to possess, process, share, and transport up to one ounce of cannabis so long as it is for personal consumption only (not to be sold). They allow that person to cultivate up to 25 square feet of plants per property or parcel – meaning roommates would have to share a 5×5 area and landlords may have a veto option to keep tenants from growing. It also allows for the possession of an unstated amount (meaning unlimited) of marijuana and cannabis under process (see definitions, below, 11304(d)(4)(B)) to become usable marijuana, again so long as it is for personal use. It also allows paraphernalia (pipes, bongs, etc.) and hints at the next section, in which commercial sales and cultivation are codified.

A question brought up here is how, exactly, the grow areas are to be enforced. They are defined, but no enforcement is mentioned. Local jurisdictions may be allowed to create “Pot Police” who would be tasked with inspecting these personal gardens. Police can currently receive electronic warrants to search a premises without need of appearing before a judge – they do this at traffic stops when they suspect (with or without proof) that someone has been drinking and driving and Family Services has done so on mere suspicion of child neglect or abuse, without substantiation. So although not likely, it may be possible and would have some precedent. It would also give a job to all of those former narcotics officers who spent their time before the Proposition hunting for marijuana users and sellers. We’ll talk more about child services and this law later.

Lastly, this section defines what the various terms are to mean. Public consumption is not allowed, and consumption while operating vehicles is also not allowed. See the No on 19 arguments for a rebuttal as to why this section is not over-ambiguous in this regard.

The last definition, number 4, should be noted because it specifically says “smoking.” This means that eating pot brownies, drinking MJ tea, or other acts of consuming marijuana without smoking it would not be punishable when done in front of a minor. Remember that as we later consider the changes being made to existing codes regarding punishments for using marijuana outside of the permits above.

11301. Commercial Regulations and Controls.

Notwithstanding any other provision of state or local law, a local government may adopt ordinances, regulations, or other acts having the force of law to control, license, regulate, permit, or otherwise authorize, with conditions, the following:

This portion creates the rules by which local jurisdictions may regulate and control commercial cannabis growing, selling, etc. Communities may use these regulations to prohibit the commercial cultivation and sale, though this would also remove their potential to tax those sales.

Note that the State of California has no powers under The Regulate, Control and Tax Cannabis Act of 2010 to do any of the named activities, and so would not receive any tax revenue from the sale of marijuana. This was likely done in order to avoid conflicts between the state and the federal government, which would surely invite a direct challenge to the law in federal court. Although President Obama’s administration has been asked to sue California should Proposition 19 pass, they would have a somewhat rougher row to hoe because of this omission. Most likely the lawsuit would center around the personal use allowances of 11300 rather than this section.

The commercial section (11301) creates several new, possible business regulations for cities and counties. These are fairly self-explanatory by the Act’s wording:

(a) The cultivation, processing, distribution, safe and secure transportation, and sale and possession for sale, of cannabis, but only by persons and in amounts lawfully authorized.

(b) The retail sale of not more than one ounce per transaction, in licensed premises, to persons 21 years or older, for personal consumption and not for resale.

(c) Appropriate controls on cultivation, transportation, sales, and consumption of cannabis to strictly prohibit access to cannabis by persons under the age of 21.

(d) Age limits and controls to ensure that all persons present in, employed by, or in any way involved in the operation of, any such licensed premises are 21 or older.

(e) Consumption of cannabis within licensed premises.

(f) The safe and secure transportation of cannabis from a licensed premises for cultivation or processing, to a licensed premises for sale or on-premises consumption of cannabis.

This makes it possible for businesses, if authorized by the city or county (depending on jurisdiction) to cultivate, process, distribute, transport, possess, and sell cannabis. It then provides rules for these businesses, starting with the retail end. These are pretty straight forward. Workers must be 21 or over. Rules can be made to keep cannabis from getting into the hands of minors, provisions for bistros or Amsterdam-style coffee shops, and the ability to transport commercial cannabis, even through areas that do not allow it. This way you don’t have to, say, exit from I-5 to go around Stockton because they might have prohibitions on commercial marijuana.

(g) Prohibit and punish through civil fines or other remedies the possession, sale, possession for sale, cultivation, processing, or transportation of cannabis that was not obtained lawfully from a person pursuant to this section or Section 11300.

This one is worth separating from the others. It appears to be, rather ambiguously, creating a sort of marijuana tax stamp. Given that businesses cannot sell more than an ounce to a person on the street and normal people cannot be in walking possession of more than an ounce, it would probably not affect the average Joe.

It does, however, appear to create the need for some kind of registration or verification system for commercially-grown cannabis. So if you work for Cannabis Growers Inc. and are transporting fifty pounds to Cannabis Retail Co., you would likely need some kind of registration for the marijuana you’re hauling.

There are thousands of ways this could be done and they’re all up to the individual cities and counties, not the State of California, so it’s doubtful that a one size fits all solution would be met or even that one jurisdiction would recognize the “stamp” of another. It’s quite obvious that this could become a serious boondoggle.

The last portion of it, “lawfully from a person pursuant to this section or Section 11300″ might be read to open this up to personal ownership except for one thing. Section 11300 creates an active defense for those possessing marijuana, meaning that law enforcement has to have some sort of proof to prosecute someone for having marijuana on their person. This is further reinforced and stated explicitly later, in definitions. So, just having it is not proof of anything, unless there is too much at once on their person. In other words, you will not be required to have “proof” that you “legally” purchased whatever weed you have in your pocket, so long as it is one ounce or less in total.

For comparison, this would be similar to having a pack of cigarettes on your person. You’re not required to have the tax stamp for those smokes because it is assumed that you lawfully purchased and will consume them (see Revenue and Taxation Code Section 30101+).

This active defense is created by the creates of parts 1 and 4b of Article 3, Section 11300. It should be noted that the current medical marijuana law in California is not an active defense, as you are required to show proof that you can legally possess the marijuana you have when asked to do so.

(h) Appropriate controls on licensed premises for sale, cultivation, processing, or sale and on-premises consumption of cannabis, including limits on zoning and land use, locations, size, hours of operation, occupancy, protection of adjoining and nearby properties and persons from unwanted exposure, advertising, signs, and displays, and other controls necessary for protection of the public health and welfare.

(i) Appropriate environmental and public health controls to ensure that any licensed premises minimizes any harm to the environment, adjoining and nearby landowners, and persons passing by.

(j) Appropriate controls to restrict public displays or public consumption of cannabis.

(k) Appropriate taxes or fees pursuant to Section 11302.

(l) Such larger amounts as the local authority deems appropriate and proper under local circumstances, than those established under subdivision (a) of Section 11300 for personal possession and cultivation, or under this section for commercial cultivation, processing, transportation, and sale by persons authorized to do so under this section.

(m) Any other appropriate controls necessary for protection of the public health and welfare.

These are more guidelines given for local governments to regulate cannabis-related businesses. There is also a hint that local governments could loosen the 1 ounce rule.

11302. Imposition and Collection of Taxes and Fees.

This section creates the ability for local governments to impose taxes and fees on cannabis-related businesses.

(a) Any ordinance, regulation, or other act adopted pursuant to Section 11301 may include the imposition of appropriate general, special or excise, transfer or transaction taxes, benefit assessments, or fees, on any activity authorized pursuant to that enactment, in order to permit the local government to raise revenue, or to recoup any direct or indirect costs associated with the authorized activity, or the permitting or licensing scheme, including without limitation: administration; applications and issuance of licenses or permits;

inspection of licensed premises; and other enforcement of ordinances adopted under Section 11301, including enforcement against unauthorized activities.

(b) Any licensed premises shall be responsible for paying all federal, state, and local taxes, fees, fines, penalties, or other financial responsibility imposed on all or similarly situated businesses, facilities, or premises, including without limitation income taxes, business taxes, license fees, and property taxes, without regard to or identification of the business or items or services sold.

Simply put, this details the types of taxes/fees available to cities and counties and says that all businesses operating as commercial cannabis operations (inside Section 11301) are responsible for the normal licensing requirements of all businesses: tax, fees, etc.

11303. Seizure.

Notwithstanding Sections 11470 and 11479 of this code or any other provision of law, no state or local law enforcement agency or official shall attempt to, threaten to, or in fact seize or destroy any cannabis plant, cannabis seeds, or cannabis that is lawfully cultivated, processed, transported, possessed, possessed for sale, sold, or used in compliance with this act or any local government ordinance, law, or regulation adopted pursuant to this act.

Pretty simply put. Someone will have to read this part to Sheriff Lee Baca in LA County.

11304. Effect of Act and Definitions.

This section is where the intended effects of the Act as well as definitions for terms used within it are given.

(a) This act shall not be construed to affect, limit, or amend any statute that forbids impairment while engaging in dangerous activities such as driving, or that penalizes bringing cannabis to a school enrolling pupils in any grade from kindergarten through 12, inclusive.

This means that Prop 19 does not change ordinances already in effect which prohibit things like operating heavy machinery, driving, shooting at a gun range, etc. while impaired. It also specifically exempts the once ounce on your person rule if you are at a school teaching any grade from kindergarten through twelve. Note that this does not include preschools or colleges/universities.

(b) Nothing in this act shall be construed or interpreted to permit interstate or international transportation of cannabis. This act shall be construed to permit a person to transport cannabis in a safe and secure manner from a licensed premises in one city or county to a licensed premises in another city or county pursuant to any ordinances adopted in such cities or counties, notwithstanding any other state law or the lack of any such ordinance in the intervening cities or counties.

Again, very straight forward. The Regulate, Control and Tax Cannabis Act of 2010 does not allow anyone to take cannabis out of the State of California nor (by implication) does it allow the importation of cannabis. It does allow intrastate (in-state) transport of cannabis, as mentioned earlier.

(c) No person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this act or authorized pursuant to Section 11301. Provided, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.

This single paragraph has received a lot of attention. It will, no doubt, lead to court decisions based on its wording. Someone, somewhere, will sue an employer because he or she was fired after testing positive on a urine test. Despite that, most of the power will still remain in the employers’ hands. This was explained thoroughly in the No on 19 analysis published on CannaCentral on October 8.

(d) Definitions. For purposes of this act:

(1) “Marijuana” and “cannabis” are interchangeable terms that mean all parts of the plant Genus Cannabis, whether growing or not; the resin extracted from any part of the plant; concentrated cannabis; edible products containing same; and every active

compound, manufacture, derivative, or preparation of the plant, or resin.

(2) “One ounce” means 28.5 grams.

(3) For purposes of paragraph (2) of subdivision (a) of Section 11300, “cannabis plant” means all parts of a living cannabis plant.

The definitions for marijuana and cannabis are given as is the measurement of an ounce (the word “ounce” has more than one weight definition).

(4) In determining whether an amount of cannabis is or is not in excess of the amounts permitted by this act, the following shall apply:

(A) Only the active amount of the cannabis in an edible cannabis product shall be included.

(B) Living and harvested cannabis plants shall be assessed by square footage, not by weight, in determining the amounts set forth in subdivision (a) of Section 11300.

(C) In a criminal proceeding, a person accused of violating a limitation in this act shall have the right to an affirmative defense that the cannabis was reasonably related to his or her personal consumption.

These are very specific definitions made to carefully define the amounts of cannabis allowed. They make the one ounce (28.5 grams) mean only the actual, active cannabis (buds/resin) in a product. So three pounds of brownies containing less than an ounce of actual bud would not be measured by brownie weight, but by the amount of cannabis in them.

Part B gives the definition for how assessments of cannabis plants are to be made. Any intact plants (living or harvested) are measured by their total area in square footage, rather than by weight or number. So, as an example, a person growing dwarf plants could have 8 in that 25 square foot space while a person growing tall, bushy sativa plants may only have 4 or 5 of them.

Note that the common misconception that harvested plants do not count towards the total allowed is false, but given that cuttings or “sprouts” take up so little space individually, it’s still feasible to have several new plants started while the latest harvest is curing.

Finally, the last part, C, says point blank that the Act gives an affirmative defense for personal consumption.

(5) “Residence” means a dwelling or structure, whether permanent or temporary, on private or public property, intended for occupation by a person or persons for residential purposes, and includes that portion of any structure intended for both commercial and residential purposes.

This defines a residence for the purpose of growing for personal consumption. Since the law would apply to residences rather than per capita adults, it must be defined. Note again that tenants of apartment complexes, rental properties, etc. are not guaranteed a right to grow on that property and that roommates or those living in multiple dwellings may only be allowed a collective growing area rather than individual plots.

(6) “Local government” means a city, county, or city and county.

This defines the term “local government,” used throughout the Act (along with the word “city”). This could mean, as with medical marijuana, that some county laws could conflict or override laws in municipal cities. Normally, city law is in lieu of county law when speaking of business or commercial regulation, though they do often mutually coexist. It is a potential for conflict, but given the example of medical marijuana and how it’s been handled, it may not be likely.

(7) “Licensed premises” is any commercial business, facility, building, land, or area that has a license, permit or is otherwise authorized to cultivate, process, transport, sell, or permit on-premises consumption of cannabis pursuant to any ordinance or regulation adopted by a local government pursuant to Section 11301, or any subsequently enacted state statute or regulation.

Again, an up-front definition of what a “licensed premises” refers to.

Section 4

Section 11361 of the Health and Safety Code is amended to read:

Some of this (which we will skip herein) is re-iterating what is already encapsulated within the HSC, Section 11361. This section has several parts, all of which deal with marijuana and minors (those under 18). It adds a new title to the section, which was previously untitled: Prohibition on Furnishing Marijuana to Minors. It then leaves the first two paragraphs of the section intact and adds:

(c) Every person 21 years of age or over who knowingly furnishes, administers, or gives, or offers to furnish, administer, or give, any marijuana to a person aged 18 years or older, but younger than 21 years of age, shall be punished by imprisonment in the county jail for a period of up to six months and be fined up to one thousand dollars ($1,000) for each offense.

This creates a previously non-existent group of people who are quasi-adults, aged 18 to 21, and gives penalties for selling, giving, or helping to use marijuana. It creates a new misdemeanor offense and punishment as well. This is an obvious attempt to make marijuana equitable with alcohol in how it’s treated.

It also could effect medical marijuana patients aged 18-20 and their cooperatives if the new laws in Proposition 19 are seen to supercede the current MMJ regulations.

(d) In addition to the penalties above, any person who is licensed, permitted, or authorized to perform any act pursuant to Section 11301, who while so licensed, permitted, or authorized, negligently furnishes, administers, gives, or sells, or offers to furnish, administer, give, or sell, any marijuana to any person

younger than 21 years of age shall not be permitted to own, operate, be employed by, assist, or enter any licensed premises authorized under Section 11301 for a period of one year.

This creates another new punishment for the sale of marijuana to a minor. Again, very much like those created for cigarettes and alochol, though tougher as many cigarette sales to minors incur only a fine.

Section 5 Amendment.

This section creates the guidelines under which the California State Legislature may change the Act in the future. Many popular referendums proposed to the public on a ballot will include these so that the popularly-voted law will not be negated by the legislature with a simple vote at the next session. This has happened when popular laws are enacted that the governing bodies do not like.

This section limits the legislature to specific changes or additions, prohibiting them from altering the Act itself to lower or abolish its standards. In other words, the legislature can make the rules less stringent, but cannot make them more so.

This section also specifically gives the idea of allowing California to regulate marijuana on a state-wide level, using the proposition as a guideline. It also, interestingly, includes the suggestion of authorizing the production of hemp or “nonactive cannabis” for horticultural and industrial purposes. Much has been said about this part, since it’s known that bioengineering companies like Monsanto have been investigating non-active hemp in Europe.

Section 6 Severability.

This small paragraph merely makes it possible for any of the Act to be removed, without affecting the rest of the Act, should it be found to be invalid in specific court cases, applications of law, etc. Again, standard fare for propositions on the California ballot.

Looking at The Regulate, Control and Tax Cannabis Act of 2010 Wargaming

Now that we’ve looked at the entire Act, as written, and understand how it will actually function as law, let’s consider how it might be interpreted. Often, the best-laid groundwork that might appear hard-and-fast to many can be manipulated to incorporate things never considered. The U.S. Constitution is a good example of that. So how could Proposition 19 create unintended consequences?

To answer that, let’s wargame some simplistic scenarios that lead to an alternative interpretation by police or the courts, changing what Prop 19 was intended to do.

Scenario 1: The Underage Medical Marijuana Patient

Patty is a medical marijuana patient, aged 19, who has an MMJ card authorized by her physician to treat an illness. She lives in an apartment with four roommates and cannot easily grow her own cannabis, so she relies on a dispensary. After Proposition 19 becomes law, her life changes.

Police interpret the new rules as trumping the old ones and arrest Patty and the caregiver at her dispensary. Patty is arrested for illegal possession while the caregiver is arrested for selling marijuana to a minor.

The police and the district attorney both agree that Patty is violating HSC 11300 (see Article 5, above). They also agree that pursuant to that, her caregiver has violated HSC 11361 (see Section 4, above) and is therefore subject to both a misdemeanor offense and the loss of his license to sell for a year.

In court, Patty’s lawyer argues that Section 2 of The Regulate, Control and Tax Cannabis Act of 2010 clearly gives the Act’s intent to not include medical marijuana. The prosecutor counters by stating that Section 2 does not specifically say that medical marijuana regulations are exempt from the changes made by the Act.

The defense reads Section 2, Part B (Purposes):

“6. Provide easier, safer access for patients who need cannabis for medical purposes.

7. Ensure, if a city decides not to tax and regulate the sale of cannabis, that buying and selling cannabis within the city’s limits remains illegal, but that the city’s citizens still have the right to possess and consume small amounts, except as permitted under Sections 11362.5 and 11362.7 through 11362.9 of the Health and Safety Code.”

The prosecution then argues that Item 6 does not include any language regarding changes made to HSC 11361 and marijuana possessors under the age of 21. Further, Item 7 applies only to cities in which commercial marijuana has been legalized, as is the case in the city in which Patty was arrested.

The court, hearing the arguments, decides against the defense, declaring all medical marijuana users under age 21 and their suppliers in the city to be breaking the law.

Scenario 2: Licensed Commercial Growers Transporting Through Cities and Counties

Bob and Cindy are licensed, commercial growers with a greenhouse in Fresno. After processing, they sell to, among others, licensed stores in both Oakland and Redding.

When transporting from Fresno to Oakland, they must pass through several cities including Madera, Modesto, and Stockton. Madera does not have commercial marijuana laws, prohibiting it. Modesto has commercial marijuana regulations, but only taxes at the retail point. Stockton has commercial marijuana regulations and taxes all marijuana in its jurisdiction. Fresno also taxes all wholesale sales of marijuana, requiring a tax stamp for each quarter ounce produced.

Bob and Cindy pay the Fresno tax by pre-purchasing 1/2oz stamps to affix to half ounce packages they sell at wholesale to retail establishments. When passing through Stockton, their delivery driver must stop at the city’s police department and present his manifest so that Bob and Cindy can be taxed for their transported marijuana. The driver is also subject to random searches and drug testing, per the County’s rules for cannabis transport.

When traveling all the way to Redding, he passes through half a dozen similar facilities where he must either present tax stamps for that jurisdiction or be subject to random search and testing.

In this scenario, we see that the transport of marijuana could, because of the mish-mash of rules, lead to a real problem. This is a possible outcome of the localization under 11301.

Lori’s Garden

Lori grows marijuana in her home in a five by five area, as required by law. She has six plants, all potted, and placed variously throughout her home. Since the plants are near maturity, she also has six cutting starting in small cups. She’s carefully measured to be sure she’s under the 25 square foot rule.

Her friend, Stan, stops by to visit and she proudly shows him her grow operation and they enjoy a hit of some of her latest cuts. Both are over 21 and giving it to your friends and enjoying it in your home is within the law.

A few days later, Stan is detained by police for possible driving under the influence. He has a bag of weed on him and the cop’s scales show it to be well over an ounce – more than 40 grams. Stan is arrested for possession of more than an ounce of marijuana.

When detectives question him, he asks for a deal. He tells them he knows someone who is growing more than 25 square feet and tells them about Lori. Based on his “tip,” the police get a warrant to search Lori’s home.

At 3am, they kick in the door and conduct a raid, dragging her from bed and putting her in handcuffs. They present their warrant and begin tearing her home apart, gathering all of the marijuana plants they can find into one area. They then measure them, finding she has about 24 square feet of plants. They uncuff her, hand her the warrant, and leave.

Her home is a shambles, her plants are probably going to die, and she’s been frightened half to death. Of course, because the raid was “legitimate,” she has no recourse and must pay for the replacement of the front door and frame, the ruined carpet, to fix the scuffs their tools and boots made on her hardwood floors, and a couple of broken cabinet doors.

Unrealistic? It’s one way they would continue their current Drug War tactics to enforce the 25 square foot rule. At least Stan didn’t tell them that he’d gotten all 40 ounces from Lori.

Conclusion

Proposition 19, The Regulate, Control and Tax Cannabis Act of 2010 is not perfectly-written and it will not create a utopia of cannabis legalization in California.

Whatever your views on whether Proposition 19 is a step forward or backwards is up to you to decide on November 2. Remember that “steps in the right direction” don’t always stay on the path intended for them and that the “foot in the door” might get smashed when the door is closed. More than a few unintended consequences have been the result of this baby step approach.

The Department of Homeland Security, created in 2002, was supposed to be a way for the various law enforcement and intelligence arms of the government to work together. Instead, it’s becoming the largest agency of the federal government and is being criticized for it’s huge size, inefficiency, and inability to coordinate the various participants.

Before that, the federal tariff on imported sugar was meant to protect sugar beet and sweet potato farmers in the U.S. from cheaper foreign competition. Instead, it’s raised costs for all of us, created a market need for unhealthy alternatives like high fructose corn syrup, and created an industry that exists only because of government intervention on their behalf.

More recently, the financial crisis of 2008 lead to bailouts by both Presidents Bush and Obama, to the tune of more than a trillion dollars combined. Meanwhile, the national debt soars well past the ten trillion mark and the debt of many states, including California, becomes unmanageable. The entire manure pile of bailouts is blamed on need created by “toxic mortgages,” yet none of the bailout money actually paid to keep homes out of foreclosure or relieve the sudden value losses when the nose diving economy destroyed the real estate market.

California voters must decide next week whether an “incremental approach” is really going to get them to their goals. Yes, it’s a step in the right direction, but if it’s challenged by the federal courts or if the federal government decides to make their Drug War more intense in California to counter the law, what will become of this incremental step? Will the problems that Prop 19 creates be worth it?

We may find out starting November 3rd.

Tags: legalize, Prop 19, Proposition 19