plants may be possessed.15 If a person claims patient or primary caregiver status, and possesses more than this amount of marijuana, he or she can be prosecuted for drug possession.
<br />The qualifying individuals may also cultivate, plant, harvest, dry, and/or process marijuana, but only while still strictly observing the permitted amount of the drug. The statute may
<br />also provide a limited affirmative defense for possessing marijuana for sale, transporting it, giving it away, maintaining a marijuana house, knowingly providing a space where marijuana
<br />can be accessed, and creating a narcotic nuisance. 16 However, for anyone who cannot lay claim to the appropriate status under the statutes, all instances of marijuana possession, cultivation,
<br />planting, harvesting, drying, processing, possession for the purposes of sales, completed sales, giving away, administration, transportation, maintaining of marijuana houses, knowingly
<br />providing a space for marijuana activity, and creating a narcotic nuisance continue to be illegal under California law.
<br />© 2009 California Police Chiefs Assn. 4 All Rights Reserved 2. Patients and Cardholders A dispensary obviously is not a patient or cardholder. A “qualified patient” is an individual
<br />with a physician’s recommendation that indicates marijuana will benefit the treatment of a qualifying illness. (Cal. H&S Code secs. 11362.5(b)(1)(A) and 11362.7(f).) Qualified illnesses
<br />include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.17 A physician’s recommendation that
<br />indicates medical marijuana will benefit the treatment of an illness is required before a person can claim to be a medical marijuana patient. Accordingly, such proof is also necessary
<br />before a medical marijuana affirmative defense can be claimed. A “person with an identification card” means an individual who is a qualified patient who has applied for and received
<br />a valid identification card issued by the State Department of Health Services. (Cal. H&S Code secs. 11362.7(c) and 11362.7(g).) 3. Primary Caregivers The only person or entity authorized
<br />to receive compensation for services provided to patients and cardholders is a primary caregiver. (Cal. H&S Code sec. 11362.77(c).) However, nothing in the law authorizes any individual
<br />or group to cultivate or distribute marijuana for profit. (Cal. H&S Code sec. 11362.765(a).) It is important to note that it is almost impossible for a storefront marijuana business
<br />to gain true primary caregiver status. Businesses that call themselves “cooperatives,” but function like storefront dispensaries, suffer this same fate. In People v. Mower, the court
<br />was very clear that the defendant had to prove he was a primary caregiver in order to raise the medical marijuana affirmative defense. Mr. Mower was prosecuted for supplying two people
<br />with marijuana.18 He claimed he was their primary caregiver under the medical marijuana statutes. This claim required him to prove he “consistently had assumed responsibility for either
<br />one’s housing, health, or safety” before he could assert the defense.19 (Emphasis added.) The key to being a primary caregiver is not simply that marijuana is provided for a patient’s
<br />health; the responsibility for the health must be consistent; it must be independent of merely providing marijuana for a qualified person; and such a primary caregiver-patient relationship
<br />must begin before or contemporaneously with the time of assumption of responsibility for assisting the individual with marijuana. (People v. Mentch (2008) 45 Cal.4th 274, 283.) Any relationship
<br />a storefront marijuana business has with a patient is much more likely to be transitory than consistent, and to be wholly lacking in providing for a patient’s health needs beyond just
<br />supplying him or her with marijuana. A “primary caregiver” is an individual or facility that has “consistently assumed responsibility for the housing, health, or safety of a patient”
<br />over time. (Cal. H&S Code sec. 11362.5(e).) “Consistency” is the key to meeting this definition. A patient can elect to patronize any dispensary that he or she chooses. The patient can
<br />visit different dispensaries on a single day or any subsequent day. The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices.
<br />But, in light of the holding in People v. Mentch, supra, to qualify as a primary caregiver, more aid to a person’s health must occur beyond merely dispensing marijuana to a given customer.
<br />Additionally, if more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. And, in most circumstances the primary
<br />caregiver must be at least 18 years of age.
<br />© 2009 California Police Chiefs Assn. 5 All Rights Reserved The courts have found that the act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily
<br />make that person one. (See People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1390: “One maintaining a source of marijuana supply, from which all members of the public qualified
<br />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,
<br />or safety’ of that purchaser as section 11362.5(e) requires.”) The California Legislature had the opportunity to legalize the existence of dispensaries when setting forth what types
<br />of facilities could qualify as “primary caregivers.” Those included in the list clearly show the Legislature’s intent to restrict the definition to one involving a significant and long-term
<br />commitment to the patient’s health, safety, and welfare. The only facilities which the Legislature authorized to serve as “primary caregivers” are clinics, health care facilities, residential
<br />care facilities, home health agencies, and hospices which actually provide medical care or supportive services to qualified patients. (Cal. H&S Code sec. 11362.7(d)(1).) Any business
<br />that cannot prove that its relationship with the patient meets these requirements is not a primary caregiver. Functionally, the business is a drug dealer and is subject to prosecution
<br />as such. 4. Cooperatives and Collectives According to the California Attorney General’s recently issued Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use,
<br />unless they meet stringent requirements, dispensaries also cannot reasonably claim to be cooperatives or collectives. In passing the Medical Marijuana Program Act, the Legislature sought,
<br />in part, to enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation programs. (People v. Urziceanu (2005) 132 Cal.App.4th 747,
<br />881.) The Act added section 11362.775, which provides that “Patients and caregivers who associate within the State of California in order collectively or cooperatively to cultivate marijuana
<br />for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions” for the crimes of marijuana possession, possession for sale, transportation,
<br />sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana. However, there is no authorization for any individual or group to cultivate or
<br />distribute marijuana for profit. (Cal. H&S Code sec. 11362.77(a).) If a dispensary is only a storefront distribution operation open to the general public, and there is no indication
<br />that it has been involved with growing or cultivating marijuana for the benefit of members as a non-profit enterprise, it will not qualify as a cooperative to exempt it from criminal
<br />penalties under California’s marijuana laws. Further, the common dictionary definition of “collectives” is that they are organizations jointly managed by those using its facilities or
<br />services. Legally recognized cooperatives generally possess “the following features: control and ownership of each member is substantially equal; members are limited to those who will
<br />avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return;
<br />economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association
<br />in the absence of a direct undertaking or authorization by them; death, bankruptcy, or withdrawal of one or more members does not terminate the association; and [the] services of the
<br />association are furnished primarily for the use of the members.”20 Marijuana businesses, of any kind, do not normally meet this legal definition.
<br />© 2009 California Police Chiefs Assn. 6 All Rights Reserved Based on the foregoing, it is clear that virtually all marijuana dispensaries are not legal enterprises under either federal
<br />or state law. LAWS IN OTHER STATES Besides California, at the time of publication of this White Paper, thirteen other states have enacted medical marijuana laws on their books, whereby
<br />to some degree marijuana recommended or prescribed by a physician to a specified patient may be legally possessed. These states are Alaska, Colorado, Hawaii, Maine, Maryland, Michigan,
<br />Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington. And, possession of marijuana under one ounce has now been decriminalized in Massachusetts.21 STOREFRONT MARIJUANA
<br />DISPENSARIES AND COOPERATIVES Since the passage of the Compassionate Use Act of 1996, many storefront marijuana businesses have opened in California.22 Some are referred to as dispensaries,
<br />and some as cooperatives; but it is how they operate that removes them from any umbrella of legal protection. These facilities operate as if they are pharmacies. Most offer different
<br />types and grades of marijuana. Some offer baked goods that contain marijuana.23 Monetary donations are collected from the patient or primary caregiver when marijuana or food items are
<br />received. The items are not technically sold since that would be a criminal violation of the statutes.24 These facilities are able to operate because they apply for and receive business
<br />licenses from cities and counties. Federally, all existing storefront marijuana businesses are subject to search and closure since they violate federal law.25 Their mere existence violates
<br />federal law. Consequently, they have no right to exist or operate, and arguably cities and counties in California have no authority to sanction them. Similarly, in California there is
<br />no apparent authority for the existence of these storefront marijuana businesses. The Medical Marijuana Program Act of 2004 allows patients and primary caregivers to grow and cultivate
<br />cultivate marijuana, and no one else.26 Although California Health and Safety Code section 11362.775 offers some state legal protection for true collectives and cooperatives, no parallel
<br />protection exists in the statute for any storefront business providing any narcotic. The common dictionary definition of collectives is that they are organizations jointly managed by
<br />those using its facilities or services. Legally recognized cooperatives generally possess “the following features: control and ownership of each member is substantially equal; members
<br />are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either
<br />no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally
<br />liable for obligations of the association in the absence of a direct undertaking or authorization by by them; death, bankruptcy or withdrawal of one or more members does not terminate
<br />the association; and [the] services of the association are furnished primarily for the use of the members.”27 Marijuana businesses, of any kind, do not meet this legal definition. Actual
<br />medical dispensaries are commonly defined as offices in hospitals, schools, or other institutions from which medical supplies, preparations, and treatments are dispensed. Hospitals,
<br />hospices, home health care agencies, and the like are specifically included in the code as primary caregivers as long as they have “consistently assumed responsibility for the housing,
<br />health, or safety” of a patient.28 Clearly, it is doubtful that any of the storefront marijuana businesses currently
<br />© 2009 California Police Chiefs Assn. 7 All Rights Reserved existing in California can claim that status. Consequently, they are not primary caregivers and are subject to prosecution
<br />under both California and federal laws. HOW EXISTING DISPENSARIES OPERATE Despite their clear illegality, some cities do have existing and operational dispensaries. Assuming, arguendo,
<br />that they may operate, it may be helpful to review the mechanics of the business. The former Green Cross dispensary in San Francisco illustrates how a typical marijuana dispensary works.29
<br />A guard or employee may check for medical marijuana cards or physician recommendations at the entrance. Many types and grades of marijuana are usually available. Although employees are
<br />neither pharmacists nor doctors, sales clerks will probably make recommendations about what type of marijuana will best relieve a given medical symptom. Baked goods containing marijuana
<br />may be available and sold, although there is usually no health permit to sell baked goods. The The dispensary will give the patient a form to sign declaring that the dispensary is their
<br />“primary caregiver” (a process fraught with legal difficulties). The patient then selects the marijuana desired and is told what the “contribution” will be for the product. The California
<br />Health & Safety Code specifically prohibits the sale of marijuana to a patient, so “contributions” are made to reimburse the dispensary for its time and care in making “product” available.
<br />However, if a calculation is made based on the available evidence, it is clear that these “contributions” can easily add up to millions of dollars per year. That is a very large cash
<br />flow for a “non-profit” organization denying any participation in the retail sale of narcotics. Before its application to renew its business license was denied by the City of San Francisco,
<br />there were single days that Green Cross sold $45,000 worth of marijuana. On Saturdays, Green Cross could sell marijuana to forty-three patients an hour. The marijuana sold at the dispensary
<br />was obtained from growers who brought it to the store in backpacks. A mediumsized backpack would hold approximately $16,000 worth of marijuana. Green Cross used many different marijuana
<br />growers. It is clear that dispensaries are running as if they are businesses, not legally valid cooperatives. Additionally, they claim to be the “primary caregivers” of patients. This
<br />is a spurious claim. As discussed above, the term “primary caregiver” has a very specific meaning and defined legal qualifications. A primary caregiver is an individual who has “consistently
<br />assumed responsibility for the housing, health, or safety of a patient.” 30 The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices.
<br />If more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. In most circumstances the primary caregiver must
<br />be at least 18 years of age. It is almost impossible for a storefront marijuana marijuana business to gain true primary caregiver status. A business would have to prove that it “consistently
<br />had assumed responsibility for [a patient’s] housing, health, or safety.”31 The key to being a primary caregiver is not simply that marijuana is provided for a patient’s health: the
<br />responsibility for the patient’s health must be consistent. As seen in the Green Cross example, a storefront marijuana business’s relationship with a patient is most likely transitory.
<br />In order to provide a qualified patient with marijuana, a storefront marijuana business must create an instant “primary caregiver” relationship with him. The very fact that the relationship
<br />is instant belies any consistency in their relationship and the requirement that housing, health, or safety is consistently provided. Courts have found that a patient’s act of signing
<br />a piece of paper declaring that someone is a primary caregiver does not necessarily make that person one. The
<br />© 2009 California Police Chiefs Assn. 8 All Rights Reserved consistent relationship demanded by the statute is mere fiction if it can be achieved between an individual and a business
<br />that functions like a narcotic retail store. ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILIARLY OPERATING COOPERATIVES Of great concern are the adverse secondary effects
<br />of these dispensaries and storefront cooperatives. They are many. Besides flouting federal law by selling a prohibited Schedule I drug under the Controlled Substances Act, marijuana
<br />dispensaries attract or cause numerous ancillary social problems as byproducts of their operation. The most glaring of these are other criminal acts. ANCILLARY CRIMES A. ARMED ROBBERIES
<br />AND MURDERS Throughout California, many violent crimes have been committed that can be traced to the proliferation of marijuana dispensaries. These include armed robberies and murders.
<br />For example, as far back as 2002, two home occupants were shot in Willits, California in the course of a homeinvasion robbery targeting medical marijuana.32 And, a series of four armed
<br />robberies of a marijuana dispensary in Santa Barbara, California occurred through August 10, 2006, in which thirty dollars and fifteen baggies filled with marijuana on display were taken
<br />by force and removed from the premises in the latest holdup. The owner said he failed to report the first three robberies because “medical marijuana is such a controversial issue.” 33
<br />On February 25, 2004, in Mendocino County two masked thugs committed a home invasion robbery to steal medical marijuana. They held a knife to a 65-year-old man’s throat, and though he
<br />fought back, managed to get away with large amounts of marijuana. They were soon caught, and one of the men received a sentence of six years in state prison.34 And, on August 19, 2005,
<br />18-year-old Demarco Lowrey was “shot in the stomach” and “bled to death” during a gunfight with the business owner when he and his friends attempted a takeover robbery of a storefront
<br />marijuana business in the City of San Leandro, California. The owner fought back with the hooded home invaders, and a gun battle ensued. Demarco Lowery was hit by gunfire and “dumped
<br />outside the emergency entrance of Children’s Hospital Oakland” after the shootout.35 He did not survive.36 Near Hayward, California, on September 2, 2005, upon leaving a marijuana dispensary,
<br />a patron of the CCA Cannabis Club had a gun put to his head as he was relieved of over $250 worth of pot. Three weeks later, another break-in occurred at the Garden of Eden Cannabis
<br />Club in September of 2005.37 Another known marijuana-dispensary-related murder occurred on November 19, 2005. Approximately six gun-and bat-wielding burglars broke into Les Crane’s home
<br />in Laytonville, California while yelling, “This is a raid.” Les Crane, who owned two storefront marijuana businesses, was at home and shot to death. He received gunshot wounds to his
<br />head, arm, and abdomen.38 Another man present at the time was beaten with a baseball bat. The murderers left the home after taking an unknown sum of U.S. currency and a stash of processed
<br />marijuana.39 Then, on January 9, 2007, marijuana plant cultivator Rex Farrance was shot once in the chest and killed in his own home after four masked intruders broke in and demanded
<br />money. When the homeowner ran to fetch a firearm, he was shot dead. The robbers escaped with a small amount of
<br />© 2009 California Police Chiefs Assn. 9 All Rights Reserved cash and handguns. Investigating officers counted 109 marijuana plants in various phases of cultivation inside the house,
<br />along with two digital scales and just under 4 pounds of cultivated marijuana.40 More recently in Colorado, Ken Gorman, a former gubernatorial candidate and dispenser of marijuana who
<br />had been previously robbed over twelve times at his home in Denver, was found murdered by gunshot inside his home. He was a prominent proponent of medical marijuana and the legalization
<br />of marijuana.41 B. BURGLARIES In June of 2007, after two burglarizing youths in Bellflower, California were caught by the homeowner trying to steal the fruits of his indoor marijuana
<br />grow, he shot one who was running away, and killed him.42 And, again in January of 2007, Claremont Councilman Corey Calaycay went on record calling marijuana dispensaries “crime magnets”
<br />after a burglary occurred in one in Claremont, California.43 On July 17, 2006, the El Cerrito City Council voted to ban all such marijuana facilities. It did so after reviewing a nineteen-page
<br />report that detailed a rise in crime near these storefront dispensaries in other cities. The crimes included robberies, assaults, burglaries, murders, and attempted murders.44 Even though
<br />marijuana storefront businesses do not currently exist in the City of Monterey Park, California, it issued a moratorium on them after studying the issue in August of 2006.45 After allowing
<br />these establishments to operate within its borders, the City of West Hollywood, California passed a similar moratorium. The moratorium was “prompted by incidents of armed burglary at
<br />some of the city’s eight existing pot stores and complaints from neighbors about increased pedestrian and vehicle traffic and noise . . . .”46 C. TRAFFIC, NOISE, AND DRUG DEALING Increased
<br />noise and pedestrian traffic, including nonresidents in pursuit of marijuana, and out of area criminals in search of prey, are commonly encountered just outside marijuana dispensaries,47
<br />as well as drug-related offenses in the vicinity—like resales of products just obtained inside—since these marijuana centers regularly attract marijuana growers, drug users, and drug
<br />traffickers.48 Sharing just purchased marijuana outside dispensaries also regularly takes place.49 Rather than the “seriously ill,” for whom medical marijuana was expressly intended,50
<br />“’perfectly healthy’ young people frequenting dispensaries” are a much more common sight.51 Patient records seized by law enforcement officers from dispensaries during raids in San Diego
<br />County, California in December of 2005 “showed that 72 percent of patients were between 17 and 40 years old . . . .”52 Said one admitted marijuana trafficker, “The people I deal with
<br />are the same faces I was dealing with 12 years ago but now, because of Senate Bill 420, they are supposedly legit. I can totally see why cops are bummed.”53 Reportedly, a security guard
<br />sold half a pound of marijuana to an undercover officer just outside a dispensary in Morro Bay, California.54 And, the mere presence of marijuana dispensaries encourages illegal growers
<br />to plant, cultivate, and transport ever more marijuana, in order to supply and sell their crops to these storefront operators in the thriving medical marijuana dispensary market, so
<br />that the national domestic marijuana yield has been estimated to be 35.8 billion dollars, of which a 13.8 billion dollar share is California grown.55 It is a big business. And, although
<br />the operators of some dispensaries will claim that they only accept monetary contributions for the products they
<br />© 2009 California Police Chiefs Assn. 10 All Rights Reserved dispense, and do not sell marijuana, a patron will not receive any marijuana until an amount of money acceptable to the dispensary
<br />has changed hands. D. ORGANIZED CRIME, MONEY LAUNDERING, AND FIREARMS VIOLATIONS Increasingly, reports have been surfacing about organized crime involvement in the ownership and operation
<br />of marijuana dispensaries, including Asian and other criminal street gangs and at least one member of the Armenian Mafia.56 The dispensaries or “pot clubs” are often used as a front
<br />by organized crime gangs to traffic in drugs and launder money. One such gang whose territory included San Francisco and Oakland, California reportedly ran a multi-million dollar business
<br />operating ten warehouses in which vast amounts of marijuana plants were grown.57 Besides seizing over 9,000 marijuana plants during surprise raids on this criminal enterprise’s storage
<br />facilities, federal officers also confiscated three firearms,58 which seem to go hand in hand with medical marijuana cultivation and dispensaries.59 Marijuana storefront businesses have
<br />allowed criminals to flourish in California. In the summer of 2007, the City of San Diego cooperated with federal authorities and served search warrants on several marijuana dispensary
<br />locations. In addition to marijuana, many weapons were recovered, including a stolen handgun and an M-16 assault rifle.60 The National Drug Intelligence Center reports that marijuana
<br />growers are employing armed guards, using explosive booby traps, and murdering people to shield their crops. Street gangs of all national origins are involved in transporting and distributing
<br />marijuana to meet the ever increasing demand for the drug.61 Active Asian gangs have included members of Vietnamese organized crime syndicates who have migrated from Canada to buy homes
<br />throughout the United States to use as grow houses.62 Some or all of the processed harvest of marijuana plants nurtured in these homes then wind up at storefront marijuana dispensaries
<br />owned and operated by these gangs. Storefront marijuana businesses are very dangerous enterprises that thrive on ancillary grow operations. Besides fueling marijuana dispensaries, some
<br />monetary proceeds from the sale of harvested marijuana derived from plants grown inside houses are being used by organized crime syndicates to fund other legitimate businesses for profit
<br />and the laundering of money, and to conduct illegal business operations like prostitution, extortion, and drug trafficking.63 Money from residential grow operations is also sometimes
<br />traded by criminal gang members for firearms, and used to buy drugs, personal vehicles, and additional houses for more grow operations,64 and along with the illegal income derived from
<br />large-scale organized crime-related marijuana production operations comes widespread income tax evasion.65 E. POISONINGS Another social problem somewhat unique to marijuana dispensaries
<br />is poisonings, both intentional and unintentional. On August 16, 2006, the Los Angeles Police Department received two such reports. One involved a security guard who ate a piece of cake
<br />extended to him from an operator of a marijuana clinic as a “gift,” and soon afterward felt dizzy and disoriented.66 The second incident concerned a UPS driver who experienced similar
<br />symptoms after accepting and eating a cookie given to him by an operator of a different marijuana clinic.67
<br />© 2009 California Police Chiefs Assn. 11 All Rights Reserved OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES Other adverse secondary impacts from the operation
<br />of marijuana dispensaries include street dealers lurking about dispensaries to offer a lower price for marijuana to arriving patrons; marijuana smoking in public and in front of children
<br />in the vicinity of dispensaries; loitering and nuisances; acquiring marijuana and/or money by means of robbery of patrons going to or leaving dispensaries; an increase in burglaries
<br />at or near dispensaries; a loss of trade for other commercial businesses located near dispensaries; the sale at dispensaries of other illegal drugs besides marijuana; an increase in
<br />traffic accidents and driving under the influence arrests in which marijuana is implicated; and the failure of marijuana dispensary operators to report robberies to police.68 SECONDARY
<br />ADVERSE IMPACTS IN THE COMMUNITY AT LARGE A. UNJUSTIFIED AND FICTITIOUS PHYSICIAN RECOMMENDATIONS California’s legal requirement under California Health and Safety Code section 11362.5
<br />that a physician’s recommendation is required for a patient or caregiver to possess medical marijuana has resulted in other undesirable outcomes: wholesale issuance of recommendations
<br />by unscrupulous physicians seeking a quick buck, and the proliferation of forged or fictitious physician recommendations. Some doctors link up with a marijuana dispensary and take up
<br />temporary residence in
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