Recreational pot measure would affect several aspects of state law
September 2, 2016
The Adult Use of Marijuana Act is big — literally and figuratively.
The California measure, if passed in November by voters, would legalize the recreational use of marijuana by adults who are at least 21 years old. California would follow in the steps of four other states that already have permitted recreational pot — Colorado, Washington, Oregon and Alaska — as well as Washington, D.C.
Clocking in with more than 39 million residents, California has more people than all the areas of the nation that currently allow recreational marijuana.
Proposition 64, called AUMA, comes with more than 60 pages of law ready to be enacted upon its passage. It details changes to business licenses, grow allowances and criminal charges.
“It would be an uncontrolled supply chain. It’s liquor distribution 2.0.” Hezekiah Allen
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"It is a very big initiative," said Hezekiah Allen, executive director of the California Growers Association. "It's 60-plus pages. It does a lot of things."
One to grow on
The change that affects the most people is the fact that adults would be able to legally possess, transport, purchase or give away an ounce of marijuana to someone who's at least 21 years old.
They would be able to grow a maximum of six marijuana plants. Local governments could create reasonable regulations about those grows, but couldn't completely restrict them, the measure states.
Allen expects someone will challenge that aspect of the measure in the court system.
The biggest change that AUMA would bring, perhaps, is the fact that adults would be able to legally smoke or ingest marijuana for recreational purposes.
"Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest," the measure states.
The measure, if passed Nov. 8, would become effective Jan. 1. People would be allowed to possess and use marijuana starting in 2017, though they wouldn't yet be able to buy it in a store.
Licenses are set to become available on Jan. 1, 2018 — the same day licenses are scheduled to be ready under the Medical Marijuana Regulation and Safety Act, signed by Gov. Brown in October 2015.
Local control remains in place under both MMRSA and AUMA. A dispensary that has a state license but no local license can't legally operate. Nevada County and all its cities currently prohibit medical marijuana dispensaries, though delivery services — a legally gray area — do operate here.
AUMA also would allow businesses that permit marijuana use in them. Again, local permits are needed. If Nevada City or Grass Valley forbid cafes that permit customers to smoke recreational marijuana, such a business can't exist in those cities.
According to Allen, his members are sharply divided over AUMA. He said MMRSA builds upon protections in the marketplace, limiting the size of cultivations and number of license types someone can have.
Current law allows a business to have two different license types. They could cultivate and manufacture, but couldn't sell directly to the public. That means a third-party distributor would be involved and provide tax accountability and an assurance that the product is sold to qualified adults.
Prop. 64 would remove that requirement, which Allen said would allow for large-scale commercialization.
"It would be an uncontrolled supply chain," he added. "It's liquor distribution 2.0."
Attorney Melissa Sanchez, who represents some Nevada County marijuana growers, said Prop 64 could hurt smaller scale growers, who would be pushed out by larger companies.
"It would open the door a lot more," Sanchez said.
Attorney Heather Burke, a Nevada County defense attorney with a focus on cannabis-related offenses, pointed to a massive change in the law that would affect criminal penalties assessed against those who violate the new law.
According to Burke, someone who grows more than the six plants allowed under AUMA faces a misdemeanor for the first offense, a maximum of six months in jail and a $500 fine.
The amount of plants over six doesn't matter; the offense would still be a misdemeanor.
The same is true if someone sells marijuana in violation of the measure.
"They all become misdemeanors if it's their first time," Burke said.
Additionally, any existing felony cases that fall into those categories would become misdemeanors, barring any circumstance that would keep them as felonies, she added.
Burke emphasized that different laws exist alongside each other. Someone can comply with one and violate the other at the same time.
For example, federal law prohibits any use of marijuana — a law reinforced this week with the Drug Enforcement Administration's announcement that pot would remain a Schedule I drug.
California law, however, has allowed the medical use of marijuana since 1996. MMRSA, passed last year, created new regulations for medicinal marijuana. However, its use remains illegal under federal law.
Current U.S. Department of Justice policy advocates a hands-off approach in many cases toward states that have allowed medicinal marijuana.
Local governments have land-use control over where and how much marijuana can be grown. The Nevada County Board of Supervisors last month passed new grow regulations that limit gardens by zoning and acreage. Grows that comply with the local ordinance still violate federal laws.
AUMA would add yet another set of rules to existing federal, state and local law.
"We've got a lot of time in front of us where things are going to be hazy," Burke said.
To contact Staff Writer Alan Riquelmy, email email@example.com or call 530-477-4239.