Attorney Panzer’s reply to Dragonfly

By William G. Panzer, attorney at law.

I am aware of Dragonfly de la Luz’s online blog that makes numerous inaccurate claims about California Proposition 64, the Adult Use of Marijuana Act. Here’s some of the responses I’ve written in various communications with her on the subject, to attempt to set the record straight.

First, a point by point response to latest post.  Following it are responses I previously wrote that are referenced in the Dragonfly response from a previous email thread initiated at the request of Chris Conrad. I have found that many of the cannabis people opposing Prop. 64 just oppose it without any real understanding of what it actually provides.  They will continue to oppose it and make ill informed, inaccurate, and illogical arguments against it no matter what. — William G. Panzer, Attorney at Law.

1. No, Proposition 64 does not “overrule” 215.  See my theLeafOnline piece.

2. No, Prop. 64 does not repeal the 4th Amendment of the U.S. Constitution and allow warrantless searches 24/7.

3.  No, Prop. 64 does not criminalize any cannabis activity that is currently legal.

4.  Prop. 215 patients may grow and possess “an amount reasonably related to current medical need”.  Nothing in Prop. 64 changes this.  Again, see my LeafOnline piece.

5.  Yes, Prop. 64 does impose rules and regulations, just like in most other industries, including pharmaceuticals, alcohol, food, etc. Any changes by the legislature must be in the spirit of and consistent with the purposes of 64.  Some changes require a majority vote, some require a 2/3 majority vote, and some aspects cannot be changed by the legislature.

6.  Under current law, possession of less than an ounce is an infraction with a $100 fine.  Possession of more than an ounce is a misdemeanor, punishable by up to six months and a $500 fine. Prop. 64 legalizes up to one ounce and doesn’t change the law for possession of over an ounce.  Currently any non-medical cultivation, even one plant, is a felony, punishable by up to 3 years incarceration. Prop. 64 legalizes non-medical, non-commercial cultivation of six plants per person.  You can legally possess all of the yield from those six plants within your residence.  Commercial cultivation becomes legal with rules and regulations, like most other industries.  I guess some people consider this “corporatizing”.  Many current growers prefer it to remain illegal – with the attendant artificially inflated prohibition pricing – with “benevolent enforcement”, as it increases profits.

7.  In my opinion, Mr. Hike’s interpretation is not accurate.  Again, see the LeafOnline piece.

8.  Nothing in Prop. 64 mandates a change in 215 in 2018, or at any other time.

9,10,11,&12.  I’ve answered all of these in previous emails, see below.

From Other Posts:

AUMA’s effect on criminal law:

AUMA reduces most cannabis felonies to misdemeanors for the first two offenses.  AUMA provides that those serving felony sentences have the absolute right to have the court change their sentences to misdemeanor sentences with a maximum of six months in jail (which means 3 actual months with half-time credits).  These are facts, not opinions.  For example, if AUMA passes, anyone currently serving a felony sentence under H&S §11358 (cultivation – 16 months, 2 years, or 3 years in prison), §11359 (possession with intent to sell – 16/2/3), or §11360 (distribution or transportation for sale – 2,3, or 4 years), will have a right to have their sentence changed to a maximum of six months.  If they have already served at least three actual months without any violations, they will be released from custody.  That is how AUMA is written.

You state that California deserves better than AUMA.  You might be surprised to hear that, to a great extent, I agree with you.  However, something “better than AUMA” does not appear to be an option.  To become law, an initiative doesn’t only need to be better than AUMA, it needs at least $2 million to get on the ballot in the first place, and at least another $10 million to run a successful campaign.  No matter how wonderful another initiative may be, it doesn’t help anyone if it isn’t financed.  You aren’t going to pass an Initiative on a write-in ballot.  If the California cannabis reform movement has proven anything over the last 20 years, it is that the movement just won’t put its money where its mouth is.  The real choice isn’t between AUMA and some imagined future initiative.  The real choice we are faced with, and will be faced with in the near future, is between AUMA and the status quo.   Unfortunately that is the stark reality that has convinced me to, somewhat reluctantly, support AUMA.

And the fact is that far less people would be in jail or under the control of the criminal justice system under AUMA than under the status quo.

RE:  Local bans on cultivation:

The rules on local bans do change under AUMA.  Local communities will be required to allow six plant indoor personal grows.  As we implement, the battle ground in court will be the extent to which local communities can regulate indoor growing.  AUMA allows local communities to implement “reasonable regulations” on indoor cultivation, but they must allow six plants.

As to “current constitutional plant limits”, courts have currently found that local communities may ban cultivation outright.  The only constitutional issue was the finding of the Kelly court that SB420 amended Prop 215 and that such amendment violated a state constitutional provision.  Thus a city can currently completely ban a patient from any cultivation, whatsoever.  Under AUMA, the city would, at a minimum, be required to allow six plants indoors, subject to “reasonable regulations”, whatever that means.

Distribution of Tax Money:

As for the tax money, the claim that “taxes go mostly to law enforcement” is inaccurate.  Section 7 of AUMA amends the Revenue and Taxation Code.  The new §34018 , (AUMA page 45), creates the California Marijuana Tax Fund in the State Treasury, separate and distinct form the General Fund.  §34019, (found on page 46 of AUMA),  controls the distribution of money from the Marijuana Tax Fund.  It provides as follows:

First, money will be disbursed to pay for the collection and administration of the taxes – up to 4% of all tax revenues.

Next, money will be disbursed to the following agencies to cover their reasonable costs in administering AUMA:

Dept. of Consumer Affairs
Dept. of Food & Agriculture
Dept. of Public Health
Dept. of Fish & Wildlife
State Resources Control Board
Dept. of Pesticide Regulation
State Controller
State Auditor
Legislative Analyst Office
Division of Labor Standards Enforcement and Occupational Safety and Health within the Dept. of Industrial Relations
Employment Development Dept.

After these expenses are paid, the next $10 million goes to public universities in California to research and evaluate the implementation and effect of AUMA

Then $3 million goes to the CHP to establish and adopt protocols for impaired driving under the influence of cannabis.

The next $10 million, (and an additional $10 million/yr up to $50 million), goes to the Governor’s Office of Business and Economic Development, in consultation with the Labor and Workforce Development Agency and the Dept. of Social Services to administer a Community Reinvestment grants program.

Next, $2 million goes to  U.C. San Diego Center for Medicinal Cannabis Research.

After this, 60% of the remaining tax money is deposited in the Youth Education, Prevention, Early Intervention and Treatment Account to be disbursed by the Controller to the Dept. of Health Care Services

20% of the remaining money goes into the Environmental Restoration and Protection Account

The remaining 20% is deposited in the State and Local Law Enforcement Account with at least $10 million going to the CHP for DUI (including alcohol and other drugs) training, and at least $40 million to fund CHP programs and grants to qualified non-profit organizations an local governments for education, prevention, and enforcement of DUI laws, including alcohol and other drugs.