Wednesday, January 28, 2015

Expert: You Don't Have to Be a State Resident to Get Medical Marijuana In California Right Now

By David Downs
Wed, Jan 28, 2015 at 12:53 PM

Potentially tens of thousands of visitors to California come here for medical reasons, but are being denied medical cannabis because of a widespread misinterpretation of state law, said San Francisco lawyer Lauren Vazquez.

Almost every physician’s clinic as well as collective or dispensary mandates that customers be California residents, but they are throwing away business, she said. There is nothing in state medical marijuana law requiring patients be residents.

The entire industry supports the residency rule, mainly because each new business copies what the other one is doing, she said.

Vazquez was the keynote speaker at a meet-up for cannabis entrepreneurs in downtown San Francisco last week. The canna-business lawyer structured her remarks around three big red flags that indicate when a medical cannabis company does not understand state law. 

Canna-brands will often incorrectly label their products with the wrong statute, violate food labeling laws, and play semantic games with the word “donation” versus a sale. Vazquez then dropped a bomb about residency.

“Another really big issue in California is the residency issue — you don’t have to be a resident to be a patient in California or to participate in collectives or join a dispensary, but you may have visited the doctor’s office or the dispensary and seen the big sign that says ‘Must Have California ID.’ That’s not true. There’s no residency requirement in California. I can’t tell you a law that doesn’t exist.”

click to enlarge Not just for California patients. - DAVID DOWNS FOR LEGALIZATION NATION
  • David Downs for Legalization Nation
  • Not just for California patients.


The preface to the 1996 Compassionate Use Act mentions the word “Californians,” but the preamble is not legally binding. (For example, the California Supreme Court in 2013 completely disregarded the preamble to the CUA when it ruled that Californians had no intrinsic right to grow, use, or access medical marijuana.)

But early operators adopted the CUA’s preamble and began enforcing residency rules. The rules were then widely adopted.

“One of the most frustrating things about the cannabis industry … A lot of people are copying what other people are doing, but what other people are doing is not right because they’re just copying another person who’s doing it, and nobody ever stopped to get actual advice or information on what it is that you should actually be doing,” Vazquez said. 

“It’s just one of those things that somebody did and it got copied and everybody started doing it and now people are turning away a sizable percentage of their customers and patient base for no good reason.”

Vazquez also cited a public meeting five years ago in San Jose with a district attorney’s representative who was also the head of San Jose’s narcotics task force at the time. Vazquez said she asked him publicly about the residency rule in front of a room of fifty operators.

“The DA was like, ‘Residency requirement. No, no, no — there’s nothing like that.'

“There have never been any prosecutions based [solely] on the fact that someone wasn’t a resident in California,” she added.

Yet it is extremely hard for an out-of-state patient — often in the Bay Area for cancer treatment — to find a doctor who will recommend cannabis or a dispensary that will provide it. You can always call a clinic ahead of time and ask if it will, Vazquez said.

“The residency requirement is a big bummer at the doctor's because there are a lot of people that come to California for medical treatment who could use cannabis while they are here — especially in the Bay with UCSF and Stanford and all the great facilities we have here. But then on top of it, the dispensaries are following suit.

“It does really hurt," she continued. "Of course there’s tourists who want to consume when they visit, but there are actual sick people who come here temporarily and need that option while they are here.”

Vazquez was able to help a surgery patient at Stanford not only find a dispensary but one that would deliver to him. “That’s just one person. There’s just so many more people who are legally entitled to access this medicine. … That’s a big, big bummer. We got to work on that one.”

The residency requirement kicks only if you want a voluntary California State Medical Marijuana ID Card — which provides immunity from arrest for possession of reasonably necessary amounts of medical pot, and is useful in anti-MMJ counties like Fresno. “That’s voluntary, you don’t need to get the state ID card.”

We’ll have more legal analysis and an estimate on many out-of-state patients might be under-served in future updates.

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