Election 2016 Update:
On Nov. 8, 2016, Californians passed Proposition 64, legalizing recreational use of marijuana. Non-patients cannot purchase from medical dispensaries, and business licenses will not be available until 2017 or 2018, but Californians over 21 can now legally possess up to one ounce of marijuana or eight grams of cannibis concentrate, and grow up to six plants. See “What’s legal and what isn’t after Prop 64”, California NORML, Nov. 9, 2016. The initiative allows for local regulation and taxation of marijuana, so different cities and counties may ban its growth and sale.
People with prior marijuana convictions may be able to request re-sentencing and destruction of their records. See Petitioning for Recall, Dismissal of Sentence, and Resentencing Sections in Prop. 64, California NORML.
The proposition did not affect medicinal marijuana rules.
California led the nation in legalizing medicinal marijuana. Under California law, patients who meet certain requirements can obtain and use marijuana legally with a doctor’s recommendation. Recreational use has recently been legalized in California, but all marijuana use remains illegal under federal law. If you’re thinking about using medicinal marijuana, here’s what you need to know.
California, local, and federal laws on medical marijuana
Medical use of marijuana/cannibis has been legal since Proposition 215, the “Compassionate Use Act,” passed in 1996 (Cal. Health & Safety (H&S) § 11362.5). In 2003, Senate Bill 420 (Cal. H&S § 11362.7 et. seq.) created a system of optional medical marijuana ID cards (Cal. H&S 11362.71), and established certain quantities of plants and dried marijuana as presumptively legal (these “safe harbor” amounts are 6 mature or 12 immature plants and 8 ounces of dried cannabis). Finally, it established guidelines for collective and cooperative cultivation (dispensaries) (Cal. H&S § 11362.768), and confirmed the rights of local governments to regulate such businesses.
2015 saw the creation of a complex licensing system for commercial production and sales of medicinal marijuana, the California Medical Marijuana Regulation and Safety Act (MMRSA) (which includes three bills, AB 266, AB 243, and SB 643.) The Department of Consumer Affairs, the Department of Food and Agriculture, and the State Department of Public Health all have authority to regulate aspects of the industry, and many other agencies are given roles. Regulations and procedures are still being developed; licenses are expected to become available in 2018.
These rules will permit and regulate for-profit cultivation, distribution, manufacturing, testing, dispensary, and transportation. Cities and counties can still regulate cultivation and sales within their borders.
For the most part, these rules will not affect individual patients, as long as they cultivate solely for personal medical use and limit their growing area to 100 square feet. Primary caregivers can cultivate up to 500 square feet for the personal medical use of up to five patients without falling under the new rules.
City and County Laws
Many cities and counties prohibit or regulate dispensaries and the cultivation of marijuana. Any county or city may have its own unique ordinances. Most are available on the internet.
Due to the passage of the MMRSA, and the ongoing debates over medicinal marijuana, many local governments are currently revising their ordinances and placing tax and other measures before their voters. To review current ordinances, visit the California NORML web page on “Local Medical Marijuana Cultivation & Possession Guidelines in California” (http://bit.ly/1g10noy) or check the most recent ordinances in your area by contacting your city or county.
Marijuana use, possession, and distribution is illegal under federal law. 21 U.S.C. § 801 et seq. There is no exception or special treatment for medical use, and California law cannot override federal law.
However, federal prosecutors are to consider whether a marijuana case is located in a state with a “strong and effective regulatory and enforcement system” for legalized marijuana when deciding whether to prosecute. U.S. Department of Justice, “Guidance Regarding Marijuana Enforcement” (Aug. 29, 2013) p. 3 (http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf). This prosecutorial discretion means that law-abiding patients and distributors in such states will generally be ignored by the federal government.
It is important to note that Attorney General Jeff Sessions has ordered federal prosecutors to pursue maximum sentences in all drug-related cases, and has expressed disapproval of marijuana legalization. The 2013 guidance is apparently still in place, but it is likely that it will change under the Trump administration.
Common questions about medical marijuana
How do patients get medical marijuana recommendations?
Doctors do not “prescribe” marijuana. Federal law specifically prohibits prescription of Schedule I drugs, including marijuana. Instead, doctors can “recommend” marijuana for appropriate conditions. Patients who are living with “cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief” are mentioned in Prop. 215. Physicians have recommended marijuana for numerous other conditions, including insomnia, depression, anxiety, PTSD, and many more.
Most medicinal marijuana recommendations are made by doctors who specialize in evaluating patients for recommendation, rather than the patients’ usual physician. The recommending doctor should review patients’ existing medical records before making a recommendation, including reviewing any other medications the patients are already using.
How do patients acquire marijuana, and how much can they possess?
Senate Bill 420 authorizes individual patients (and their caregivers) to possess up to six mature or 12 immature plants and eight ounces of dried cannabis. (These amounts are much larger than permitted under the new recreational use law.) Patients can grow their own marijuana (limited to 100 square feet for an individual), or purchase it from nonprofit collectives and cooperatives (usually storefront dispensaries).
Cities and counties may raise the limits on quantity and growing space if they choose (although more than 100 square feet would subject the individual to the new licensing requirements.) They can also impose zoning restrictions preventing dispensaries or prohibiting outdoor cultivation, so check local codes.
What is a Medical Marijuana ID card, and how do patients get one?
A Medical Marijuana ID card is optional—patients do not need to get one to use medical marijuana legally. However, it can be very useful. If a patient is stopped by California law enforcement with a permissible amount of marijuana, the ID card prevents the officer from arresting the patient. While patients may also display their doctors’ recommendation, the ID card may be accepted more easily, and is easier to carry.
Cards are issued by county Departments of Public Health. There is a charge for the card; currently the fee is $166 annually in Sacramento County (“Medical Marijuana Identification Card – Frequently Asked Questions,” Sacramento County Department of Health and Human Services).
Return of marijuana seized during a police stop or arrest
Law enforcement officers sometimes confiscate (seize) marijuana during investigations, whether or not they arrest the patient. The patient is entitled to the return of the property, but in some cases, it is not as easy as just requesting it back.
If the police department will not return the marijuana upon request, the patient can file a motion for return of property. Information and samples for doing this are available at the Law Library or on the website of Americans for Safe Access (ASA). This website also has information on patients’ legal rights when dealing with law enforcement as well as practical tips on growing and using medicinal marijuana.
Local area ordinances
These laws are being reconsidered by many cities and counties. Check the current status of the law by visiting the city or county code directly.
Sacramento County – unincorporated areas
- Indoor permitted; limited to single-family dwelling, residence of patient or caregiver, maximum 9 plants. Sacramento County Code (Sac. County Code) § 6.89.050 (SCC Ord. No. 1563 § 1, 2014)
- Outdoor prohibited. County Code 6.88.050 (SCC Ord. No. 1561 § 1, 2014)
- Dispensaries are not a permitted use and can subject operators to code enforcement penalties.
- Public consumption of medical marijuana prohibited. County Code 6.87.030 (SCC Ord. No. 1106 § 1, 1998.)
City of Sacramento
- Outdoor prohibited. Sacramento City Code (Sac. City Code) § 8.132.030(A)(1) (Ord. 2012-045 § 2)
- Indoor residential permitted; limited to residence of patient or caregiver, no more than 400 square feet, and other requirements. Sac. City Code § 8.132.030(A)(2)-(3) (Ord. 2012-045 § 2)
- Indoor commercial permitted; requires city permit, limited to 22,000 square feet, and other requirements. Sac. City Code § 17.228.127 (Ord. 2016-006)
- Dispensaries permitted; requires city permit (Sac. City Code § 5.150 & SCC § 17.228.700 (Ord. 2016-008)); special city tax on marijuana businesses (Sac. City Code § 3.08.205 (Ord. 2010-020 § 5)).
- Public consumption of medical marijuana prohibited. City Code § 9.08.020 (Ord. 2015-0008 § 4)
- Outdoor cultivation prohibited. Citrus Heights Code (CHC) § 50-702 (Ord. No. 2013-007, § 1, 7-11-2013), CHC 23.27.020 (zoning)
- Indoor cultivation permitted in residential buildings with many restrictions. CHC § 50-702 (Ord. No. 2013-007, § 1, 7-11-2013)
- Dispensaries prohibited. CHC § 47-3 (Ord. No. 2012-003, § 2, 2-25-2012); CHC § 106.42.120 (Ord. No. 2012-004, § 3, 2-25-2012)
- Dispensaries prohibited. Elk Grove Municipal Code (EGMC) § 9.31.030 (Ord. 19-2010 § 1, eff. 10-8-2010)
- Public consumption of medical marijuana EGMC § 9.28.030 (Ord. 20-2010 § 2, eff. 10-8-2010)
- Cultivation prohibited. Folsom Municipal Code (FMC) § 114.030 (Ord. 1251 § 3 (part), 2016)
- Dispensaries prohibited. FMC § 112.020 (Ord. 1059 § 2 (part), 2006)
- Public consumption of medical marijuana prohibited. FMC § 95.020 (Ord. 881 § 2 (part), 1997)
- Cultivation prohibited. Galt Municipal Code (GMC) 18.58.050 (Ord. 2015-05)
- Dispensaries prohibited. GMC 18.28.050 (Downtown zoning district land uses and permit requirements) (Ord. 2015-05)
- Cultivation prohibited. Isleton Journal “City Council Notes,” C.A. Giacoma, Staff Writer, March 23, 2016. (http://rivernewsherald.com/isleton-city-council-notes-3-23-2016/)
- Outdoor cultivation prohibited. Rancho Cordova Municipal Code (RCMC) 6.90.030 [Ord. 1-2015 § 2; Ord. 17-2010 § 2].
- Indoor cultivation permitted in single-family homes by resident patients or caregivers, with restrictions on square foot and a permit required. RCMC 6.90.040. Permit required, tax imposed. RCMC § 3.85 (Ord. 19-2010 § 1).
- Dispensaries prohibited. RCMC 9.102.030 (Ord. 16-2013 § 2; Ord. 15-2013 § 4); § 23.925.020 (zoning)
- Public consumption of medical marijuana RCMC § 6.87.030 (Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4)