A former South Bay lawmaker who authored the state’s medical marijuana framework says state officials have misunderstood, or perhaps twisted for their own ends, a crucial section of that law dealing with whether dispensaries can operate on a for-profit basis.
It’s been the state’s contention for years that for-profit dispensaries aren’t allowed. But former state Sen. John Vasconcellos, D-Santa Clara, issued an open letter earlier his month saying that’s not at all what his SB 420 of 2003 said. Here’s the operative part of that letter:
It was certainly true that one side wanted to outlaw any profit-making, while the other side did not and would not. So right there and then – in order not to lose our coherence as a working team hoping for a broadly supported result and to hold our coalition together – we took the openly deliberated, fully appreciated compromise way out: We catered to neither side on this issue. Instead the Task Force crafted the language that appears in Health and Safety Code section 1 1362.765(a) as follows: “…. nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit.”
It was so carefully crafted that neither side could claim victory. In effect that issue was entirely left to whatever otherwise is the status of that issue in California law.
Although certain members of our Task Force did advocate for a prohibition on profit-making, that position was firmly rejected by the Task Force in favor of the above compromise language.
The language we fashioned means nothing more – nor less – than what it explicitly says. Nothing in that section prohibits profit. Nothing in that section explicitly authorizes profit, either. But I must point out that nobody is required to obtain an “authorization” from the Legislature to make a profit in California.
In fact, it would have been utterly incongruous for us constituting that A.G.’s Task Force, to have come up with such a ban on profit, which could not readily be interpreted or found to be explicitly or implicitly in support of implementing Proposition 215’s intention to allow patients to obtain and use marijuana for medical purposes.
In short, the language in question, which was painstakingly crafted as a result of careful give-and- take from all sides, simply restates a self-evident fact about what is not in that section, but the language does not in any respect purport to prohibit profit – if that had been the intent, the language would have so stated clearly. It obviously does no such thing.
This made my head hurt a little, so I called Oakland attorney Robert Raich, who has argued a medical marijuana case to the U.S. Supreme Court and was part of the task force that drafted SB 420. He broke it down for me: This language was a sop to the cops.
“We needed to throw a bone to them to make them happy so they wouldn’t completely oppose it and walk away from the table altogether,” he said. “But you don’t really need authorization from the Legislature to make a profit. … The fact that it says it doesn’t authorize profit doesn’t mean it prohibits it.”
Raich said he explained it to one of his Oaksterdam University students thusly: The student can say he doesn’t authorize his girlfriend to use his car, and if the girlfriend then drives it, she has run afoul of his lack of authorization. But if the student says he doesn’t authorize Raich to drive Raich’s car, there’s no real effect because the student never had authority over Raich’s car to begin with.
Attorney General Kamala Harris’ office declined to comment on Vasconcellos’ letter.
But, having covered California’s medical marijuana policy since 1997, I’m guessing the state isn’t impressed. I think its lawyers would note all marijuana cultivation and distribution was illegal before voters approved certain narrow exceptions in Proposition 215 of 1996, the Compassionate Use Act; that ballot measure certainly didn’t create a right to profitable sales. Vasconcellos’ 2003 law also didn’t alter that status quo: The section dealing with collective/cooperative cultivation is silent on it, and the section Vasconcellos cites, dealing with primary caregivers, made it clear the Legislature wasn’t authorizing such sales.
So I’d be willing to bet that if someone presents Vasconcellos’ letter in court, the state would argue that such a radical departure from existing law isn’t something the Legislature would have left to implication or conjecture. But I also think the state would argue that Vasconcellos’ letter doesn’t fit within the rules that courts use for determining legislative history and intent, and so is moot anyway.