Medical Marijuana Political Struggle

Urziceanu Ruling Protects Sales, Distribution
By Pebbles Trippet

Voters passed Prop 215 in 1996, establishing the explicit right to grow or obtain medical cannabis with a doctor’s authorization —but not to sell or distribute it. SB 420 expanded the protections to include sales and distribution by means of “collective cooperative cultivation projects.” This is the gist of a unanimous ruling in September 2005 by the 3rd District California Court of Appeals in People v. Urziceanu (132-CalApp4th747).

Michael Urziceanu (Ur-zi-see-on-oo), a qualified patient (and former corrections officer), was the founder of FloraCare, a dispensary in Citrus Heights, near Sacramento. He and partner Susan Rodger enlisted several hundred medical-cannabis users in what they defined as a cooperative. Urziceanu and staff grew cannabis and occasionally bought pounds from other growers to meet members’ demand. Members reimbursed FloraCare by making “suggested donations.”

FloraCare was first raided Sept. 18, 2001. It reopened and was raided again.

A jury trial in Sacramento Superior court in Fall 2003 resulted in acquittal for Urziceanu on marijuana cultivation and sales charges but a conviction for conspiracy to sell. He received a three-year sentence.

The Appeals Court reversed and remanded for a new trial on improper jury instructions on conspiracy and mistake of law, as well as search and seizure procedures. The ruling stated (page 49):

“This new law (SB420) represents a dramatic change in the prohibitions on the use, distribution and cultivation of marijuana for persons who are qualified patients or primary caregivers. Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and their services provided in conjunction with the provision of that marijuana.

“ Contrary to the People’s argument, this law (SB420) did abrogate the limits expressed in (previous) cases... which took a restrictive view of the activities allowed by the Compassionate Use Act.”

The Urziceanu court negated its own “restrictive views of the activities allowed” under Prop 215. It clarified the meaning of “primary caregiver” for qualified patients.And it laid out a detailed legal alternative to the club model of medical access, based on “collective cooperative cultivation projects” (as per SB420) rather than profit.

SB420 provides no definition of “collective,” or “cooperative,” but legal cooperatives have financial disclosure requirements that collectives do not.

The court lists seven statutory exemptions, not just the two stated in Prop 215 (possession and cultivation) and a series of principles and protections for primary caregivers who form voluntary associations using a state ID in compliance with SB420.

The Medical Marijuana Program Act (SB 420) contains section 11362.775, which states, “Qualified patients... and the designated primary caregivers of qualified patients... who associate within California in order to collectively or cooperatively cultivate marijuana for medical purposes, shall not solely on that basis be subject to state criminal sanctions under sections 11357, 511358, 11359, 11360, 13366, 11366.5, or 11570...

“This section extends the protections of the Compassionate Use Act tothe additional crimes related to marijuana: possession for sale (11359), transportation or furnishing marijuana (11360), maintaining a location for unlawfully selling, giving away or using controlled substances (11366), managing a location for the storage or distribution of any controlled substance for sale (11366.5) and the provisions declaring a building used for reselling, storing, manufacturing and distributing a controlled substance to be a nuisance (11570).”

Senate Bill 420, as unanimously interpreted by the Urziceanu judges, went beyond the right of Prop 215 patients to a defense at trial —a minimalist approach. It applies to the medical access process as a whole and acknowledges that that SB420 allows for expenses, provision of medicine and related services, including salaries:

“ This section thus allows a primary caregiver to receive compensation for actual expenses and reasonable compensation for services rendered to an eligible qualified patient, i.e., conduct that would constitute sale under other circumstances...

“ The Medical Marijuana Program Act (420) expressly expands the scope of the Compassionate Use Act (215) beyond the qualified defense to cultivation and possession of marijuana...

“ This section extends the protections of the Compassionate Use Act to additional crimes related to marijuana: possession for sale, transportation, furnishing, maintaining a location for selling... managing a location for distribution.”

There is no limit on the total number of patients who can authorize a primary caregiver to cultivate for them and provide their medicine, as long as there are sufficient physician recommendations to cover the quantity and as long as the medicine-providing processes are collectively or cooperatively organized.

Since it is generally estimated that 90-95 % of cannabis patients are unable to grow for themselves, primary caregivers are the key to true medical access in the future.

The California courts are leading the way, building bridges to safe, affordable medicine, delivering what the voters intended —that marijuana for medical purposes not be a crime but rather a health matter between doctor and patient and a statutory “right” under state law.

The California Supreme Court ruled in Mower (2002) that people who use marijuana for medical purpose are “no more criminal than” (exactly equal to) people who use prescription medicines.

The Urziceanu Appeals Court (2005) applied the Mower principle and medicalized the entire production and distribution process —from cultivating, trimming and transporting to selling, distributing and managing a warehouse for storage and distribution.

If properly used and if not overturned, the Urziceanu ruling fulfills the rights of cannabis patients and caregivers to due process and medical access. A rational future is now visible, with protections for cannabis patients that were largely unthinkable 10 years ago and are now the law of the state.

A new group, Healing Alternatives Association (HAA), consisting of cannabis patients and caregivers organized collectively or cooperatively, has formed. If you would like to get more information, including the by-laws, contact HAA, po box 2555, Mendocino CA 95460, or call the Medical Marijuana Patients Union at 707-964-YESS.

The Urziceanu ruling protects primary caregivers as follows:
1) Two or more people (patients and/or caregivers)
2) Can engage in “collective cooperative cultivation” of marijuana for medical purposes and not for profit.
3) State law allows “reimbursement” for expenses and services related to provision of medicine (including reasonable salaries).
4) If the primary caregiver is providing for more than one patient (there is no limit to the number of patients a caregiver may provide for), the number of doctor approvals has to be sufficient to authorize the quantity being grown or otherwise provided.
5) The collective or cooperative or their representative registers the garden with the California Medical Marijuana Program Act, which issues ID cards through county health departments, thus extending SB420 protections to that patient or primary caregiver.