How does Prop 64 impact Prop 215? Please explain what changed for a medical only person. Thx
In a nutshell, Prop. 64 is extremely – and deliberately – convoluted, written to create the
appearance of protection for patients, but in actuality, destroying them. For example – and this language is often quoted by Prop. 64 promoters out of context – one section says: “
Nothing in this section shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996 [Prop. 215].” Based on that sentence, it almost sounds like Prop. 64 leaves Prop. 215 intact. But context is everything. Look closely. That sentence
does not say, “Nothing in this
initiative shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996”; it says, “Nothing in this
section…” And the section where this disclaimer appears is
11362.3 – a section that refers
only to where persons may use and possess – not cultivate:
11362.3
(a) Nothing in Section 11362.1 shall be construed to permit any person to:
(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Section 26200 of the Business and Professions Code.
(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.
…etc.
This section goes on to list a total of eight items, all related to
consumption – in public, in cars, on boats, etc. At the end of that section, the disclaimer is found:
(f) Nothing in this section shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996.
To reiterate, this protected section,
11362.3, only covers the rights to consume and possess. So the restrictions on smoking in public, for example, would not apply to patients, who currently may legally consume anywhere tobacco smoking is allowed. Duly noted. Now let’s get to the cultivation section.
11362.1
(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants…
And here is where proponents of Prop. 64 make the misguided claim that patients would be exempt from this six-plant cultivation limit:
11362.45
Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt: …(i) Laws pertaining to the Compassionate Use Act of 1996.
But they are wrong. This part is crucial: Despite what appears to be a blanket exemption for patients,
Section 11362.1 is itself governed by, or “subject to,” another section – 11362.2 – “notwithstanding [regardless of] any other provision of law.” This is the deception. This is the section that overrides and ultimately governs 11362.1 (and by extension, Prop. 215). It can be read as: “Regardless of any other provision of law” — and that includes Prop. 215 — :
11362.2
(a) Personal cultivation of marijuana under paragraph (3) of subdivision (a) of Section 11362.1 is subject to the following restrictions:
(1) A person shall plant, cultivate, harvest, dry, or process plants in accordance with local ordinances, if any, adopted in accordance with subdivision (b) of this section.
[This means that, in order to be exempt from the plant limits in 11362.1, a patient must adhere to local law. Therefore, if your city or county bans cultivation – and according to NORML,
nearly 75 percent of localities either already have or are considering bans– then you cannot lawfully cultivate, regardless of what 11362.1 says.]
(2) The living plants and any marijuana produced by the plants in excess of 28.5 grams are kept within the person’s private residence, or upon the grounds of that private residence (e.g., in an outdoor garden area), are in a locked space, and are not visible by normal unaided vision from a public place.
(3) Not more than six living plants may be planted,cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, at one time. [Bingo. The evidence you’ve been waiting for.]
(b)(1) A city, county, or city and county may enact and enforce reasonable regulations to reasonably regulate the actions and conduct in paragraph (3) of subdivision (a) of Section 11362.1.
(2) Notwithstanding paragraph (1), no city, county, or city and county may completely prohibit persons engaging in the actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1 inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure.
(3) Notwithstanding paragraph (3) of subdivision (a) of Section 11362.1, a city, county, or city and county may completely prohibit persons from engaging in actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1 outdoors upon the grounds of a private residence.
While literally anyone can throw a seed outside and let Mother Nature do the rest,
Prop. 64 does not grant the right to simply plant a seed in the ground and let it grow. In fact, since Prop. 64 gives cities and counties the right to ban outdoor growing, the majority of Californians will only have the option to grow indoor. But indoor cultivation requires careful attention to every minute detail – from temperature, to humidity, to nutrients, to pests; not to mention sophisticated knowledge of horticulture. And growing indoors requires a dedicated space and carries with it high potential of creating mold. Under these circumstances, few patients or, in fact, Californians as a whole, would be able to take advantage of the highly-restrictive privilege to grow their own.
Once and for all, this is the proof we’ve all been seeking. It is now apparent that Prop. 64
does notprotect a patient’s most hard-won right: the right to cultivate their own medicine in quantities necessary for their particular ailments.
