February 2016

The Future of Cannabis Cultivation in a Banned County.

The story is so often repeated in my ears that it’s become a mantra for the vast majority of the cannabis growers these days: “I want to be in compliance. I want to do things right.”  The laws that define what it means to be in “compliance,” however, recently underwent a dramatic shift with the new regulations passed in Sacramento last October, the Medical Marijuana Regulation and Safety Act (“MMRSA”).  MMRSA abolishes the old-school “collective/cooperative” model in about three years, which fundamentally changes the game.  This article is dedicated to what laws will be affecting NorCal growers during that interim period before MMRSA becomes mandated and the old collective/cooperative model is abolished.
To fully understand the transition into these new regulations, I must paint an overview of the laws relating to cannabis cultivation.  Currently, there are three distinct tiers of law that all growers should be aware of in this changing legal landscape; (1) civil/land-use ordinances,  (2) state law, and (3) federal law.  It looks like this:
Fed Law
State Law
County/City Civil Ordinance Law
Tier 1, Civil Land Use
The first tier is the land-use ordinances that are set by the locality (City and/or County) and are civil in nature.  The closer one is to the land, the more authority the government has to regulate the use of that land. So when it comes to the particular uses of particular land, City ordinances generally trump County, County ordinances trump State, and the State trumps the Feds.  That system makes sense, of course, because we don’t want Los Angeles telling us how to regulate the use of the North San Juan Ridge, nor do we want the Feds telling Nevada City what kind of businesses are acceptable downtown.  The most important thing to note about local ordinances is that they are civil, and thus violations are non-arrestable public nuisances, for now.  Cops can seize your plants, they can charge you extravagant fines, but they cannot cage you.  
Tier 2, State Law
The second tier is State Law, and is comprised of Prop 215, the Medical Marijuana Program, and now MMRSA.  A violation of the State Law is a felony criminal offense, which means they can cage you for violating these laws.  There is no “misdemeanor” cultivation crime in California: its either 100% a felony or 100% legal.   Currently under California law, there are three and only three ways any cannabis cultivation-related conduct is legal: if the cultivation is occurring (1) for your own personal use, (2) for the use of someone for whom you are their nurse or primary caretaker, and (3) on the behalf of a valid collective or cooperative.   The new MMRSA laws abolish this third category, the collective/cooperative, one year from the date the State licenses start being issued.  The State has said they expect to issue licenses in early 2018, which means collectives/cooperatives will protect you only until early 2019.  If you are operating in what I call a “ban county,” you better stay tuned for that date.  Know this!
​MMRSA fundamentally changes the game in that it, in essence, requires everyone have a state license for any and all commercial cannabis-related activity. Additionally, it also mandates they have permission from their local City or County as a prerequisite to obtaining the state license.  That means, before you can even ask the State of California for a license to cultivate cannabis, you must prove that your City or County has given you a permit or other authorization.  
Let me repeat this last sentence again:  Before you can even ask the State of California for a license to cultivate cannabis, you must prove that your City or County has given you a permit or other authorization.  
As we are all aware, the enactment of MMRSA catapulted many City Attorneys and County Counsels around the State to thoughtlessly enact full-scale bans.  Thus, once MMRSA abolishes the collectives and cooperatives, you wont be able to be arrested for violations of the local ban, but you won’t be able to get your state license either.  And without a state license, any and all cultivation activity will be a straight up felony.   Yes, MMRSA does give you about three years to get your state license but, if you live or work in a “ban county,” you will not be able to get that license.  So if you are in a “ban county” when collectives/cooperatives die out, your choices are simple: stop growing, move, or be a felon.  It’s that simple.  
Additionally, folks in “ban counties” must be aware that law enforcement will not be happy to find out that you are operating in spite of a civil ban.  Thus, presume they will seek you out with vigor (and we know the Nevada County Sheriff will do so because he already doubled his helicopter budget) and, when they find you, they will be trying hard to arrest you to build up their anti-cannabis campaign.  So please don’t give them that pleasure: (1) be kind, but say nothing, (2) do not consent to searches, (3) hand them your collective/cooperative papers that you had ready and waiting for them, (4) make sure that your attorney’s business cards are handy. 
Tier 3, Federal Law
The third tier is Federal Law, under which the cultivation of cannabis has no medical defense and carries decade-long mandatory minimums as penalties.   In August of 2013, the Feds said they would hold off prosecutions in States that have enacted a robust “regulatory scheme,” such as MMRSA.  However, it must also be noted here that the Feds will continue to prosecute cases where money from the sale of marijuana goes to “criminal enterprises,” even in California.  Thus, if you cannot get a local permit under MMRSA, any cannabis cultivation for financial gain is now a “criminal enterprise” that could bring one under the federal government’s criminal purview as well as the State.
So yes, it’s a huge risk to work in a City or County that bans cultivation after the collective/cooperative defense is abolished.  Maybe not today, but it will certainly be illegal to continue on in usual fashion once the dust from MMRSA settles over the next three years.  And since the legalization initiative expected to be on the November 2016 ballot does little to help the situation, this is the world we are living in for perhaps decades to come, particularly if your County votes to uphold a ban (making it bulletproof), as well as if the Feds keep cannabis a Schedule I drug (#feelthebern). 
Please note that a good attorney cannot advise you to violate even a civil ordinance.  We can only advise you what your risks are, so that your decision is appropriately informed, but the choice to engage in cannabis-related conduct in spite of local, state and federal prohibition, is on you.   One thing is for sure, if you live in a “ban county,” but you don’t vote or donate to the groups working towards cannabis regulations, your County will continue to stay a “ban county,” soon bringing your conduct under State and Federal criminal law. 
In closing, I must say that I sometimes feel a bit tricked by MMRSA.  Growers were asked to come out of the cannabis “closet,” and then the government shut the door behind them, forever locking them inside this new world.  But, as I’ve said before and I’ll say again, it’s time to accept what now is, and work to shape it for the better.  Righteous cultivators are the foremothers and forefathers of a new era for a medicine that can cure cancer and eradicate plastics.  Our heavy work has only just begun.  If indeed you have chosen cannabis cultivation as your life’s work, you must adapt or be left behind.  
As always, I end my post with a musical meditation, which today is Lauryn Hill’s “Lost Ones.”  ​