Marijuana Legalization is Coming to California, But What Path Will it Take?

A breakdown of the initiatives in the state

By Chris Conrad / The Leaf Online

With four marijuana legalization initiatives vying for the California ballot, one thing is clear: All four sets of reforms are better than the state’s current prohibition. The initials and names are confusing, but the core question is, which one or ones will voters get to vote on?

The California Cannabis Hemp Initiative (CCHI) has been gathering signatures the longest. TheMarijuana Control, Legalization and Regulation (MCLR) is the longest and took in the greatest amount of direct input from the public. A third version was drafted by a group of long-time reform activists, including remnants of the unsuccessful 2010 Prop 19 campaign. None of these has visible financial backing to make the ballot.

The fourth and most likely candidate to emerge came out of left field with funding from the late philanthropist and cannabis reformer, Peter Lewis. As a farewell gift to California before he died last year, Lewis and the Drug Policy Alliance (DPA) had an initiative drawn up that protects medical marijuana laws, puts the Department of Alcoholic Beverage Control (ABC) in charge of commercial licensing but not home grows, attempts to correct mistakes made in Washington State, addresses the recent federal policy outlined by the Obama administration and searches for middle ground between the reform community and the more mainstream voters who may not know much about cannabis but do hold the electoral balance in their hands. The Control, Regulate and Tax Marijuana Act (CRTM) was filed December 18, 2013.

Predictably, in its effort to soothe the Feds and centrist voters, the initiative does not meet the most far-reaching or even some of the more moderate and attainable demands of the cannabis community. For a few examples, it does not repeal the existing laws, reduce penalties on the existing statutes or require that every locality allow marijuana sales to adults. It creates an excise tax of 25%, not including sales taxes, and divvies up the money among state and local coffers, as a financial incentive for localities to license cannabis businesses.

The language repeatedly seeks to protect existing medical marijuana laws and licenses and would make it legal for adults 21 and older to carry or give away an ounce of bud at any given time and grow up to six plants and store the harvest in their home. People with greater need will still need to get a doctor’s note. The ABC will handle the licensing process and regulations statewide while localities will be able to control zoning, hours of operation, etc. Local governments could not ban personal possession or cultivation. They could ban commercial production and sales, but they can’t interfere with state licensed activities, such as transportation. It limits property seizures and adds new civil protections for cannabis consumers. It broadens and incorporates the state’s hemp farming law directly into the text of the initiative.

David Bronner, President of Dr. Bronner’s Magic Soap, the state’s largest consumer of industrial hempseed oil, has already voiced his support for the effort. Bronner is confident that the initiative will be a big step forward for industrial hemp. “Our movement should not let the good be the enemy of the perfect,” he wrote. “If major movement funders are willing to throw down the resources required to pass marijuana reform in California in 2014 via DPA’s measure, versus some other version or waiting for 2016, we should celebrate and do what we can to help make it happen.”

Likewise Attorney Joe Elford, former counsel for Americans for Safe Access, told theLeafOnline.com that the initiative would at least put an end to efforts to ban personal medical marijuana grows around the state and would open the door for more affordable access for patients who henceforth would not even need a doctor’s approval unless their personal need exceeds six plants and one ounce of medicine.

The authors heard the complaints from activists in Washington. The I-502 marijuana legalization bill voters passed there in 2012 banned home grows, set “per se” limits for driving under the influence and set up a taxation scheme that essentially doubles the cost of the end product to the consumers. Seeing the acrimony those provisions caused, Lewis steered back towards the activist community on all those issues: No local bans on personal gardens, no per se driving limits, and a much lower excise tax.

The language as originally filed came as a surprise to California activists, who protested that it would have interfered with the new state hemp law, capped gardens at four plants and set a 1,000-foot distance barrier between commercial facilities and schools. To their credit, the authors responded to criticism and promptly revised the text. Now it incorporates a recently passed state hemp law that was supported by Vote Hemp, allows six plants per household, similar to the Medical Marijuana Program Act, and makes the 1,000-foot rule discretionary rather than mandatory.

It’s no secret that the most onerous of its policies, such as the 1,000-foot rule, were adopted simply avoid problems with the Federal government. That in itself angers some activists, who fought in the California state legislature to get that number reduced to 600 feet. They’ve also seen the Obama administration make a similar promise about allowing medical use — then attack the medical marijuana distribution network with more force than Presidents Clinton and Bush combined. We can’t trust Obama, activists argue, and California should stand up to the Feds rather than formalize bad federal policy through a voter initiative.

Many reformers, including California NORML, think it would be better to hold off on an initiative until 2016 when they see a younger and more favorable voter pool passing a stronger reform that repeals cannabis prohibition and provides better access statewide with less local control over the industry. There had been a consensus among a number of activist groups and interested parties, including DPA and the Marijuana Policy Project, that the 2016 Presidential election would be the optimum time for a more progressive legalization initiative that was already being drafted by the Coalition for Cannabis Policy Reform (CCPR).

One of the reasons that 2016 was targeted was to be a show of unity. The 2014 efforts were left to two grassroots efforts. The CCHI is a broadly written law that legalizes the plant, frees marijuana prisoners and fits onto a single page, while the more detailed “open-source” MCLR seeks to address a multitude of foreseeable circumstances. Both of those efforts are ongoing, and a fourth initiative has been filed since the Lewis initiative, this one drawn from the CCPR draft, revised and filed by author Ed Rosenthal. The fact that at least three of these efforts have told theLeafOnline.com that they intend to file again for the 2016 election suggests that the hope of a unified front is probably unattainable.

This is where the momentum that has been building since 2010 and a sudden surge in support for legalization in the 2013 polls came into play. The question was repeatedly raised at the DPA-sponsored International Drug Policy Reform Conference last October: Is it time to dab while the titanium is hot? If 2014 is a winnable year that does see legalization in several other states, having California weigh in with a successful, albeit imperfect law, could have a tremendous impact on 2016 votes elsewhere.

Lewis and his crew apparently decided it’s better to risk chafing the activists than the Obama administration, which oversaw the arrest and prosecution of more medical marijuana operations in one year in the state of Montana alone than had occurred in the entire US during the eight-year Bush era. By placing some restrictions within the discretion of the ABC, the authors sought to appease the activists and the White House and to accommodate existing California law that gives local governments broad control over commercial activities within defined boundaries. The ABC would be flexible to adjust to evolving circumstances and could ultimately be a strong advocate for the cannabis industry before the state legislature.

Lewis’ commitment to reform was profound. He funneled millions of dollars into the hemp industries through the Ohio Hempery throughout the 1990s. During the 2000s, he handed out millions more to small reform activist groups and projects around the US via the MPP grant program. More recently he had been active with the ACLU and in forming his new organization. His decades of work with the political reform process are visible in the language that was filed after his death.

To summarize its key elements: The initiative sets an age of consent at 21 to possess an ounce of marijuana bud and an eighth-ounce of resin, cultivate six cannabis plants per household, and assigns commercial oversight authority to the state Department of Alcoholic Beverage Control. It retains existing laws on medical marijuana; patients who have a current doctor’s approval will still have their “reasonable” quantity and collective garden defenses. It does not repeal existing prohibition laws or reduce penalties for non-medical offenses. In other words, if a person steps outside its framework, the criminal charges and legal consequences will be just as severe as ever. Local governments could regulate or ban commercial activity but not personal cultivation and possession. It retains current laws regarding the workplace and driving. There is no per-se DUI limit in the measure. It seeks to comply with the August 29, 2013 Cole memo from the Obama administration, but makes some provisions discretionary. It adds new civil rights and asset forfeiture protection but bans public consumption. It incorporates and expands existing state laws on industrial hemp.

The bill is designed to go into effect without any action by the legislature but it does rely on the legislature to reduce penalties and repeal obsolete statutes. Likewise they are aware that it won’t get anyone out of jail and the transition will be painful to many who fall outside of its scope before the prohibition-inspired felony and misdemeanor penalties are removed.

State growers, while not enamored of the six-plant garden, have for the most part learned to live with that rule as long as they have access to starter plants, collective grows and a medical use defense for larger amounts. Many will see six plants as better than a local ban on home gardens. Moreover, most cannabis consumers will simply live within the law and buy from their local shop. Most don’t need to carry around or give away more than an ounce at a time and probably won’t grow even six plants, especially if they are renters. Four adults together could have four ounces, when one is simply not enough. People will figure it out.

The main premise of such an incremental change, however, is that once use is legal and normal, the stigma against people who use marijuana will fade. The costly burdens of enforcement and drug testing will not survive long when people see how pointless they are. In an age of cutting costs, marijuana prohibition is one of the most burdensome wastes of money facing both the government and society.

Some key language of interest from the initiative is excerpted below.

Intention: (r) Not affect state and local laws concerning the Compassionate Use Act of 1996 and its implementing laws and regulations.

11362.2 Personal use of Marijuana

(a) Notwithstanding any other provision of law, it is lawful under state and local law, and shall not be a violation of state or local law, for persons 21years or older to:

(1) Possess, use, process, transport, purchase, obtain, smoke, ingest, or give away to a person 21years of age or older one ounce or less of marijuana other than concentrated cannabis, or one-eighth of an ounce or less of concentrated cannabis.

(2) Possess, grow, or process six or fewer marijuana plants and the marijuana produced by the plants, provided that: ·

(A) The plants and any marijuana produced by the plants in excess of one ounce are kept at the person’s home or other private residence, or upon the grounds of that home or private residence, and are secure from access by a person younger than 21years of age, and are not visible by normal unaided vision from a public place; and

(B) Not more than six plants may be possessed, grown, or processed at a single home or private residence, or upon the grounds of that home or private residence, at one time.

(3) Assist another person who is 21 years of age or older, or allow property to be used, in any of the actions or conduct permitted under subdivision (a).

26020 (c) The [regulatory] Department shall have no power to license or otherwise regulate or restrict actions or conduct that is permitted under Sections 11362.2 and 11362.3 of the Health and Safety Code or under the Compassionate Use Act of 1996 and its implementing laws and regulations.

34070 (b) The tax imposed by Section 34020 does not apply to marijuana distributed pursuant to the Compassionate Use Act of 1996 [Prop 215] and its implementing laws and regulations.

11362.4. Penalties, Seizure, and Forfeiture.

(a) Notwithstanding any other provision of law, no state or local government agency shall impose any criminal, civil or administrative penalty on any person who is 21years o f age or older solely for actions or conduct permitted under Sections 11362.2 or 11362.3.

(b) Notwithstanding any other provision of law, the actions and conduct permitted under Sections 11362.2 and I1362.3 shall not be a basis for the seizure or forfeiture of any products, materials, equipment, property, or assets under state or local law.

26070. Protections for Licensees.

(a) Actions and conduct by a licensee, its employees, and its agents that are permitted pursuant to a valid license issued by the Department, and by those who allow property to be used by a licensee, its employees, or its agents as permitted pursuant to a valid license issued by the Department, are lawful under state and local law, and shall not be a violation of state or local law.

(b) No state or local government agency shall impose any criminal, civil or administrative penalty on any licensee, its employees, or its agents, or on those who allow property to be used by a licensee, its employees, or its agents, solely for actions or conduct permitted pursuant to a valid license issued by the Department.

34040. Distribution of Funds.

(b) By July 15 of each fiscal year, the Controller shall disburse monies deposited in the Fund during the prior fiscal year as follows:

(1) Fifty-five percent (55%) shall be deposited in the Education Account.

(2) Thirty percent (30%) shall be deposited in the Treatment and Prevention Account.

(3) Ten percent (10%) shall be deposited in the Local Government Account.

(4) Five percent (5%) shall be deposited in the Environmental Restoration Account.