Reporting from the City of San Diego Medical Marijuana Task Force (March 2010)

By Kim Twolan –Task Force Collective Director Representative

MMJ TASK FORCE February 2010 Report
The Medical Marijuana (MMJ) Task Force presented to the City Council our recommendations that were published in last months Nug Magazine.  The City Council requested action is to accept the report and pass it to the Land Use and Housing (LU&H) Committee that is chaired by Councilmember Todd Gloria. The LU&H Committee will have the opportunity to properly study the recommendations and report back to the City Council.
I would like to communicate an enormous appreciation and respect to the Assistant Chief of the San Diego Police Department (SDPD) Cesar Solis and Narcotics Unit Captain Guy Swanger for their time and effort at the Task Force meeting in January 21, 2010.  We sincerely appreciate all the hard work the SDPD is doing.
Assistant Chief Solis spoke about procedures and followed up to the Task Force with the SDPD Procedures for marijuana.  The SDPD Procedures 3.28 Investigations Memo on Medical Marijuana Enforcement Procedures dated 6/19/2006 briefly describes that its purpose is to establish guidelines on the enforcement of narcotics violations related to medical marijuana use, and in scope it includes all sworn members of the Police Department.
The background describes the Compassionate Use Act (CUA) and how Proposition 215 was codified as Health & Safety Code Section 11362.5.  It further describes a patient and a caregiver.  Enforcement Procedures indicate that it is the detainee/arrestee’s obligation to assert the defense, not the officer’s duty to inquire.  The officer is instructed after an affirmative medical defense is presented, to notify SDPD Narcotics Section.  A Narcotics Section Sergeant will evaluate the information and determine the appropriate level of response.
SDPD uses the guidelines of one pound per Patient and 2 pounds per Primary Caregiver or the amount consistent with the physician’s recommendation, whichever is less.  According to the memo, a medical patient can possess a maximum of 24 unharvested plants in a growing area no larger than 64 square feet.  A Primary Caregiver may posses a total of 48 plants in a growing area not to exceed 94 square feet.
Officers are instructed that after discovering a person is eligible to use the affirmative defense, the officer should return any marijuana and release the person.  Officers will complete a “Detention Only” report detailing the circumstance of the encounter, the amount found and the facts that led to the conclusion that the person was eligible to use a medical defense.  The SDPD personnel will not knowingly participate in any federal operation or investigation that conflict with established policies and procedures concerning medical marijuana.  The officer is instructed to fill out a questionnaire to assist in determining if the person qualifies for a medical defense.  If a person being detained refuses to provide the information or the facts are not consistent with a medical defense then the officer will proceed with a citation or arrest.  The entire memo can be found on San Diego Americans for Safe Access website
At our meeting on February 5, 2010, the Task Force bantered around the People v. Kelly decision. There were three attorneys at the task force meeting and all three had diverse interpretations of the decision and its future.  The California Supreme Court issued a unanimous published decision in People v. Kelly, striking down what it considered unconstitutional legislative limits on how much medical marijuana patients can possess and cultivate. The decision also affirms protection from arrest and prosecution for patients who both possess a state-issued identification card and comply with state or local personal use guidelines.

Even though the court affirmed that qualified patients and their primary caregivers retain “all the rights afforded by the Compassionate Use Act (CUA) of 1996”, law enforcement can still arrest and prosecute if probable cause exists. In keeping with the CUA, qualified patients and their primary caregivers will still have an affirmative defense in court.  A Department of Health and Safety state card, while intended to prevent arrest, will not necessarily achieve that result if you possess more than the 11362.77 limits or if the police suspect fraud.

It was decided that an ad hoc group comprising of four of the task force members (Doctor Rep, Patient Rep, Co-op Rep, and Police Rep) will review existing ordinances regarding limits and bring back recommendations to the group in two weeks.

The agenda item is to provide and verify evidence of a “non-profit/ not for profit” status led to a rather lively discussion.  However, the item was continued until our next meeting on 2/19. Several of us raised the fact that there are agencies already in place to evaluate these claims. The IRS conducts audits, and this determination is up to the business owner/Director, CEO, CFO or accountant and the IRS.  Too much time was spent on details that are business dependant and not safe access focused.  The Attorney General’s guidelines for MMJ collectives offer no path to operating as a corporation, only as a nonprofit.

Alex Kreit, task force chairman and a law professor, reviewed the Franchise Tax Board (FTB) interpretation and concluded, “The medical-marijuana law does not require collectives to obtain official nonprofit status, only that they do not turn a profit…. So, even if a collective does not have tax-exempt status, they can still operate within the law on a nonprofit basis and within the regulations the Task Force has recommended.”

Please come out and support the Medical Marijuana Task Force as we work together to provide safe access in San Diego.  The next meetings are March 5th and March 19th on the 12th floor of City Hall, 202 C St., San Diego.

bringing you that fire! stay tune for more posts.

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