W
ith every court ruling, safe access becomes harder to figure out. A prime example is City of Lake Forest v. Evergreen Holistic Collective, issued on February 29, 2012 by the California Court of Appeal, Fourth District. Though many had hoped the ruling would clarify the complex interaction of medical marijuana and zoning laws, instead the ruling created as many questions as it answered.Addressing the issue of cities regulating medical cannabis collectives, in Lake Forest the justices ruled that cities and counties must allow storefront collectives, that all cultivation must be on-site and must be essentially the sole source of medicine for the entire membership. The decision also discusses collective transportation of medical cannabis. Specifically, the justices ruled that collective members do not have an affirmative defense to transport more than their personal amount of medical marijuana to and from a cultivation site.
Meanwhile, one week before on February 22, 2012, the California Court of Appeal, Second District, issued a unanimous opinion in People v. Colvin. Addressing criminal law and the collective affirmative defenses afforded to managers, directors, employees, or cultivators, these justices ruled that to comply with California law, a storefront collective does not have to require all members to physically participate in the cultivation of medical marijuana. However, where the Lake Forrest and Colvin decisions differed, the Colvin opinion held that a member of a collective can transport medical cannabis in larger than personal-use amounts on behalf of a collective to and from a cultivation site. The Colvin justices also ruled that a lawful collective can cultivate medicine off-site, so long as the medicine is being cultivated by and for members of the collective.
Are you confused yet? That is okay; so is everyone else.
Lake Forest tackled two big-ticket questions in medical marijuana law: one, can municipalities ban all storefront collectives, and two, what is the definition of a lawful, storefront collective? The answer to question one was good news to medical marijuana advocates: municipalities cannot ban lawful, storefront collectives, solely for being medical cannabis collectives. But, in the bad news column, the Lake Forest court ruled that to be a lawful storefront collective, the collective must cultivate on-site – and essentially obtain all of its medicine for the membership from that on-site cultivation. If a storefront collective fails to meet these requirements, they are not lawful, and municipalities can shutter them.
To justify requiring storefront collectives to obtain essentially all of their medical marijuana from an on-site grow, the justices in Lake Forrest tried to pin the blame on the California Legislature Senate Bill 420, also known as the Medical Marijuana Program Act. However, the Court’s claim that the California Legislature has tied its hands falls apart when the Court crafts its own definition of lawful, collective transportation of medical marijuana. Though the Court acknowledges that qualified patients and primary caregivers can cultivate medical marijuana as a group to meet the needs of all the members of a collective, the Court then arrives at a conclusion at which no other court has ever arrived: individual qualified patients and primary caregivers can lawfully transport only their personal, individual amounts of medical marijuana to and from a cultivation site. However, individuals cannot legally transport larger amounts of medical marijuana on behalf of collectives to and from a cultivation site.
Therefore, when the California Legislature stated in Health and Safety Code section 11362.775 that individuals who collectively cultivate medical marijuana have an affirmative defense to Health and Safety Code section 11360, transportation of marijuana, the Legislature intended that people could legally move medical marijuana around the actual cultivation site, but not to and from it. Or rather, a storefront collective that cultivates medicine at different locations, or entrusts members to cultivate on behalf of the collective at their homes, is illegal.
Currently, few storefront collectives fully comply with Lake Forest’s definition of a legal collective. Most collectives cultivate medicine off-site, or receive regular contributions from trusted members who cultivate on behalf of the membership. Those collectives are not lawful, according to Lake Forest – and as such, cities and counties can ban them. Thus, most storefront collectives that currently operate or have previously operated in hostile cities and counties in Southern California are out of luck. Equally worrisome, the ruling casts doubt on whether licensed storefront collectives in cities and counties beyond the Fourth District in Southern California are complying with California law, if they do not cultivate essentially all of their medicine at their storefront.
With Lake Forest, the Fourth District has created new rules that please nearly no one. Most medical marijuana collectives, advocates, and attorneys believe the justices erred both by essentially eliminating an affirmative defense for collective transportation of medical marijuana, and by reading in a requirement that collectives must cultivate on-site – and obtain nearly all of their medicine that way. Cities and counties that wish to ban all medical cannabis collectives will fight any ruling that forces them to accommodate any type of storefront collective. Even cities and counties in other appellate districts that currently allow storefront collectives, but do not require them to meet the Lake Forest criteria, will want the ruling appealed, for this ruling may place their ordinances in legal jeopardy. The justices in Lake Forest have created a split between themselves and their fellow justices in the Fourth District. Those justices ruled last fall in City of Riverside v. Inland Empire Patient’s Health and Wellness Center, Inc. et al. that cities and counties can ban – but they did not put forth such a restrictive definition of a legal collective. Given that all of these groups will ask the California Supreme Court to take Lake Forest up on appeal, the California Supreme Court will almost certainly grant review.
Another case that may wind up at the California Supreme Court is People v. Colvin. A unanimous opinion issued by the Second District, Colvin offers more support for medical marijuana collectives and advocates than Lake Forest by setting forth a more liberal definition of a lawful collective and of collective transportation. This is surprising, considering that these same justices decided Pack v. City of Long Beach last year. Pack is the now-notorious case in which the court held that federal law preempted much of the City of Long Beach’s restrictive permitting scheme for storefront collectives. The ruling sent cities and counties across California into a panic, with hostile municipalities passing bans, and supportive municipalities wondering if their ordinances put them at risk of federal prosecution.
And yet, this same panel just produced one of the strongest rulings in California jurisprudence, supporting that qualified patients and primary caregivers are entitled to collective, affirmative defenses when facing state criminal prosecution.
In 2009, William Colvin, a manager of two storefront collectives in Los Angeles, was stopped by police while transporting a little over one pound of cannabis from one collective to another. Colvin explained that he worked for a collective and was transporting medical marijuana on behalf of a collective. Colvin was charged with felony transportation of marijuana and possession of concentrated cannabis. At trial, the court concluded that Colvin had been running a “‘legitimate’” collective, complying with the Attorney General’s Guidelines and using the fees paid by members to offset the collective’s expenses. About fourteen members helped cultivate for the membership. Some grew at the collective’s grow room, and others off-site including several members who cultivated in Humboldt County, bringing the cannabis to Los Angeles.
However, despite Colvin’s excellent, lawful management of the collectives, the trial court denied him a collective, affirmative defense for felony transportation of marijuana, arguing, “the transportation [in the case] had nothing to do with the cultivation process.” Colvin did not get a collective affirmative defense for transportation because the trial court did not believe that an individual could legally transport more than his or her own personal amount of medical marijuana – a view similar to that of the Lake Forest court.
The appellate court disagreed, reversing the trial court. The justices concluded that Colvin should have received a collective, affirmative defense for felony transportation, because people can transport medical marijuana on behalf of a lawful collective. As for what is a lawful collective, the court held that to be lawful, a collective need not require every single member to participate in the physical cultivation of medical marijuana. Rather, some members can cultivate on behalf of the whole membership.
However, this is where the agreement between Lake Forest and Colvin ends. Disagreeing with the Fourth District ruling in Lake Forest, the Second District held in Colvin that a collective can be lawful – and thus, its members, managers, directors, and cultivators can receive an affirmative defense in criminal court for actions performed on behalf of the collective, regardless of whether the collective or its members grow medical marijuana off-site, or if members transport medical marijuana in their cars to and from cultivation sites on behalf of the collective. As a result, the Colvin court concluded that the trial court had erred and that Colvin had been entitled to present a collective, affirmative defense to the charges of felony transportation of marijuana and possession of concentrated cannabis.
Though Colvin addressed criminal affirmative defenses rather than civil regulation of storefront collectives by municipalities, Colvin disagrees with Lake Forest on the definition of a legal storefront collective and collective transportation of medical marijuana. To resolve this split between the Second District and the Fourth District, the California Supreme Court will likely take Colvin up on appeal.
However, answers will not come quickly. If the California Supreme Court grants review of Colvin and Lake Forest, they join a docket already crowded with medical marijuana cases. Most likely, the California Supreme Court will not rule on any of these cases for at least eighteen months. In the meantime, the medical marijuana community is left more confused about how to provide safe access. With every ruling, the courts make it clearer and clearer that the medical marijuana community cannot afford to wait for the courts to clean up California’s medical marijuana laws. If the medical marijuana community wants to clean up the mess of confusing rulings, it needs to draft and promote new legislation, statewide and local.
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The Law Offices of Jessica C. McElfresh focuses on medical cannabis law in San Diego. For more information, email Jessica at
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