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LEGAL SUPPORT FOR THE CANNABIS BUSINESS COMMUNITY SINCE 2010

Florida Medical Marijuana: Back From the Dead

Posted in Florida, Medical Marijuana
When will Florida become known for its legal cannabis too?

When will Florida become known for its legal cannabis too?

Florida first tried passing a medical marijuana constitutional amendment by a vote of the people in 2014. Things feel a little different now even though the ballot initiative will again be making its way back to the voters this year. The hype has waned, but can we expect the 4same political and legal tumult that faced Amendment 2 the first time around?

Florida’s Amendment 2 took a strange and rocky road to the ballot box the first time around. The Florida State attorney general filed a challenge to strike it down, alleging it misled the public about its true intent and effect. The Amendment 2 campaign had to go before the Florida’s Supreme Court to keep Amendment 2 alive, which it did.

I am a licensed Florida attorney and I spent much time in the state with clients during the run-up to Amendment 2 and, in my opinion, what really set so many Florida voters against Amendment 2 was the proliferation of more fly by night pot colleges, airport seminars, and self-proclaimed “medical marijuana business lawyers,” promising endless riches than I (or any of the other lawyers in my firm) have seen in any other state.

Florida also saw billionaire Sheldon Adelson pony up massive funds to fight against Amendment 2 through a well-funded group that claimed medical marijuana is the new “date-rape drug,” and that circulated a video of Amendment 2’s main financial backer and supporter, lawyer John Morgan, claiming that Morgan’s true intent was to achieve the total legalization of marijuana. In spite of all this, our firm advocated in favor of Amendment 2.

Amendment 2 made it to the ballot box but did not get the votes needed to pass. Florida requires a 60% supermajority vote for a constitutional amendment by the voters, and Amendment 2 fell short at around 57% of the vote.

In January 2015, I wrote about Amendment 2 making a comeback in 2016. The campaign for Amendment 2 has now gathered the necessary signatures for the Florida Division of Elections to certify the Amendment to go to the ballot this November, and there have so far not been any legal challenges from the state attorney general or any opposition groups.

What makes the new Use of Marijuana for Debilitating Medical Conditions ballot amendment different from Amendment 2? Frankly, not much beyond clearer language this time regarding regulation and oversight of medical marijuana businesses, qualifying patients, and caregivers.

If the new amendment passes, Florida’s Department of Health will be in charge of oversee Florida’s medical marijuana program. “Medical Marijuana Treatment Centers” (MMTC) are the entities that will grow, process, and distribute all medical marijuana. An MMTC is defined as “an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the Department [of Health].”  A “qualifying patient” will be a person diagnosed with a debilitating medical condition, who has a physician certification and a valid qualifying patient identification card  “Debilitating Medical Condition” means “cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”

This new amendment makes clear that the Florida Department of Health will issue “reasonable regulations necessary for the implementation and enforcement” of the new law so as to ensure the availability and safe use of medical marijuana by qualifying patients. The amendment makes sure that the following regulations be promulgated no later than six (6) months after the effective date of the law:

  • Procedures for issuance and annual renewal of qualifying patient identification cards to people with physician certifications and standards for renewal of such identification cards. Before issuing an identification card to a minor, the Department [of Health] must receive written consent from the minor’s parent or legal guardian, in addition to the physician certification.
  • Procedures establishing qualifications and standards for caregivers, including conducting appropriate background checks, and procedures for issuance and annual renewal of caregiver identification cards.
  • Procedures for registration of MMTCs to include issuance, renewal, suspension and revocation of registration, and standards to ensure proper security, record keeping, testing, labeling, inspection, and safety.
  • A regulation defining the amount of marijuana reasonably be presumed to be an adequate supply for qualifying patients’ medical use, based on the best available evidence. This presumption as to quantity may be overcome with evidence of a particular qualifying patient’s appropriate medical use.

We are hoping the legal and political circus that encircled Amendment 2 will be kept at bay this time around and that Florida voters will be placated by the amendment’s stronger language regarding regulation and control of Florida’s more robust medical marijuana program. In other words, we will be pushing for Florida voters to pass this new Amendment.

Do stay tuned.

Oregon Marijuana Laws: The Legislative Roundup

Posted in Medical Marijuana, Oregon, Recreational Marijuana
Oregon cannabis laws: watching the sausage get made.

Oregon cannabis laws: watching the sausage get made.

When Oregon began its short legislative session last Monday, four cannabis bills were teed up for consideration. Throughout the week, the bills competed for attention with marquee pieces of draft legislation, including proposals to raise the state minimum wage, ease its housing crisis, restrict gun sales, and help stop global warming. All bills are available for review on the Oregon State Legislature website.

Short sessions are curious affairs, first approved by Oregon voters just six years ago. The sessions are designed to permit the Legislature to address key budgetary issues and emergencies. In this session’s case, anything not signed into law within a 35-day window dies, or is tabled until the next full session. This means we will know the outcome of changes in Oregon cannabis law no later than March 6.

Any bill that was not scheduled for a committee vote by the session’s fifth day, February 5, is dead. According to the legislature’s scheduling page, it appears that two of the proposed cannabis bills, HB 4132 and SB 1511, did not make it to committee. The former bill prohibited marijuana retailers from collecting tax from medical marijuana patients and their primary caregivers. The latter bill would have: (1) allowed medical dispensaries to sell edibles, topicals and extracts into the recreational market through the end of the year; (2) allowed recreational pot licensees to produce, process and sell medical marijuana products (“co-location”); and (3) forbidden retailers from taxing sales to medical marijuana patients and their caregivers.

Because standards for edible products will be finalized soon via OHA rulemaking, and because co-location is a great idea that feels pretty much inevitable, it is disappointing that SB 1511 failed to make it through. As to the HB 4132, it was a smaller bill but guardians of the medical program will be disappointed. Still, the two remaining pot bills, HB 4014 and HB 4094 could succeed in some form or another. Below is a summary of each.

HB 4014. This is the big one. HB 4014 deals with everything from lifting crummy residency requirements for both the medical and recreational programs, to adjusting criminal sentencing laws related to controlled substances. Among other provisions, HB 4014 would also: tweak the fee structure and security requirements for licensed businesses; protect information submitted by recreational license applicants from public disclosure; allow the governor to enter into compacts with tribes who wish to grow and process pot; and even add an “open container” law for people driving with pot in their cars. Overall, we like this bill.

HB 4094. This one exempts financial institutions that service marijuana accounts from criminal prosecution under Oregon law. Though that sounds great, it seems unlikely that a state with a legal pot program would prosecute a local bank. Also, the bill does nothing to ease the near crippling complications for banks wishing to service pot accounts under federal law, or protect banks from federal liability for cannabis account servicing (each of which is beyond the state legislature’s purview, anyway). But, it’s something.

Both bills declare an emergency and both would be effective on passage. The next work session for HB 4094 is February 8 at 9:00 a.m.; for HB 4014, it is February 9 at 1:00 p.m. All meetings are streamed online at the Legislature’s web site. Typically, as bills go through committee they see a variety of changes, so assuming the pot bills pass and the governor signs them, the final versions will likely look different than what we see now. Still, HB 4014 in particular contains some very important provisions, so lets hope the legislature gets it done right.

The State of Cannabis: Kansas is “No Place Like Home” for Marijuana

Posted in States

Kansas-01

This is number five in our series ranking the fifty states on cannabis from worst to best. Alabama was last week, ranking as the fourth worst state for cannabis. This week we head to the middle of the country, where Kansas is truly flat when it comes to marijuana laws.

Kansas

Criminal Penalties. Possessing less than 450 grams of cannabis in Kansas can result in up to one year in prison and up to a $2,500 fine. Any subsequent possession offense can result in a $100,000 fine and up to 3.5 years in jail.

The Kansas State Legislature is considering a bill to reduce some of these penalties and the Kansas Senate recently approved a bill to reduce punishment for first-time possession to six months in jail and a $1,000 fine, and punish a second possession with up to a year in jail. The bill gained strong bipartisan support and has a good chance of becoming law if it passes through the Kansas House of Representatives.

But even if this bill does pass, Kansas would still have harsh penalties for possession and its harsh penalties for charges beyond possession would remain unchanged. For any amount over 450 grams, there is a rebuttable presumption that the person in possession of the marijuana has it with an intent to distribute. This means that anyone caught with more than 450 grams has the burden of proving he or she did not intend to sell it. Normally, a prosecutor must prove every element of a crime beyond a reasonable doubt. This shift makes it much more difficult to defend oneself in a Kansas court for marijuana. Possession with intent to distribute warrants a 10-42 month jail sentence and up to a $100,000 fine.

If the police catch a person selling marijuana in Kansas, he or she likely will face serious time and huge penalties, as the following illustrates:

  • Sale of less than 25 grams is punishable by 14 months probation – 51 years imprisonment and a fine up to $300,000.
  • Sale of 25-450 grams is punishable by 46 – 83 months imprisonment and a fine up to $300,000.
  • Sale of 450 grams – 30 kilograms is punishable by 92 – 144 months imprisonment and a fine up to $500,000.
  • Sale of 30 kilograms or more is punishable by 138 – 204 months imprisonment and a fine up to $500,000.

Chance of Legalization. Republicans dominate Kansas state politics and the state does not have an initiative process. That makes legalization in Kansas very unlikely. Kansas currently has no legalized marijuana; it prohibits both recreational and medical use. The lack of an initiative process is especially discouraging considering a recent poll showed that the majority of Kansas citizens actually support marijuana legalization, according to Kansas Speaks, a statewide pubic opinion survey:

When asked about marijuana policy, over two thirds of respondents favored allowing medical marijuana in Kansas, while almost as many (63%) favored decriminalizing recreational marijuana so that personal possession would only involve a fine, rather than jail time.

The bill that would reduce penalties for marijuana possession (mentioned above) originally had a provision that would have allowed some medical patients to legally access high-CBD oil, but that was removed.

Marijuana use and Parenthood. Cannabis use can render a person unfit to raise a child in Kansas and that is why Raymond Schwab, an honorably discharged veteran who traveled to Colorado for medical marijuana,  lost custody of his children. The Denver Post reports that the Gulf War Veteran lost custody of his five youngest children in April 2015 and has only seen them three times since. At that time, the state investigated whether Mr. Schwab and his wife had emotionally abused the five children. The state subsequently dismissed the allegations as unsubstantiated.

Mr. Schwab travels to Colorado to access medical marijuana. He suffers from post-traumatic stress disorder, and like many other veterans, uses marijuana to alleviate his symptoms. Now a judge in Kansas is ordering at least four months of clean urinalysis tests before Mr. Schwab can regain custody of his children.

Bottomline. Kansas has extremely harsh penalties for marijuana use. The state does not allow marijuana in any form and at least one of its judges sees no issue in forcing parents to choose between their own children and their mental health. Though the people of Kansas appear to want change, Kansas lawmakers seem just fine with ignoring those wishes. Unless and until Kansas changes, it will round out our worst five states for marijuana. Next week we write about a state known for doing things in a big way, including treating cannabis users badly.

Another Court Okays Firing an Employee for Legal Marijuana Use

Posted in Litigation, Medical Marijuana
You can get fired for cannabis. We need to get that changed.

You can get fired for cannabis. We need to get that changed.

Yet another court recently ruled that an employer may terminate an employee for his or her marijuana use that is legal under state law — this time in New Mexico. We’ve blogged on this topic before, so much so that we are starting to sound like a broken record (for just a sampling, check out Fired for Cannabis: Still Just Fine in Oregon and Alaska; Yes, You Can Get Fired for LEGALLY Smoking Marijuana; and Firing Employees for Medical Cannabis: Colorado Supreme Court Says That’s Okay).

The facts should seem familiar. Rojerio Garcia suffers from HIV/AIDS. His treatment regimen, recommended by his physicians, includes the use of medical cannabis. Garcia has a valid patient card under New Mexico’s Lynn and Erin Compassionate Use Act (“CUA”). When Garcia applied and interviewed for a management position at Tractor Supply Company, he disclosed the fact of his HIV/AIDS status and that he uses medical marijuana to alleviate the symptoms of that disease. Garcia was hired but then quickly terminated, after a drug test indicated the presence of cannabis metabolites. Garcia then brought suit against Tractor Supply, claiming the had been fired on the basis of his medical condition and his doctor-recommended cannabis use, in violation of the New Mexico Human Rights Act.

Tractor Supply promptly filed a motion to dismiss, arguing that neither the CUA nor the Human Rights Act obligated it to accommodate Garcia’s medical marijuana use. There was no question that  HIV/AIDS meets the definition of “serious medical condition” within the Human Rights Act. There was also no question the CUA did not provide Garcia with a cause of action against his employer. Rather, Garcia’s theory was that the CUA essentially embodies New Mexico public policy that medical cannabis use is accepted, and that that policy combined with HIV/AIDS’ status under the Human Rights Act creates a requirement that an employer accommodate an employee’s use. Tractor Supply contended that the CUA created no such accommodation requirement and that Garcia was not terminated because of his serious medical condition; he was terminated because he tested positive for a substance illegal under federal law.

Garcia tried to argue that because New Mexico courts have held that New Mexico’s Workers’ Compensation Act allows for reimbursement of medical marijuana, they might also conclude that medical marijuana should be a required accommodation under the Human Rights Act. The court was not persuaded however, instead giving credence to Tractor Supply’s argument that there is a big difference between requiring an insurer to reimburse for a doctor-recommended treatment and mandating an employer accommodate the same treatment. In particular, the court seemed to like Tractor Supply’s argument that, as a national company with stores in 49 states, it shouldn’t have to create a specific workplace drug policy for each state with legalized medical cannabis, especially when federal law still prohibits its use. The court was adamant that Garcia was not fired due to HIV/AIDS, and that failing the drug test was not the result of a serious medical condition. Accordingly, it dismissed Garcia’s case in its entirety.

Without express language in CUA to require employers’ accommodation of medical cannabis, Garcia’s case was undoubtedly an uphill battle. Tractor Supply didn’t do him any favors when it removed the case from state court (where Garcia had instigated his claim, and which was more likely to be friendly to Garcia) to federal court (where the court would likely be more swayed by the federal CSA). But we still think the court took a rather narrow view when disconnecting Garcia’s termination from his medical condition. True, medical cannabis use is not the result of HIV/AIDS, but in this case it was certainly related. We also think the court’s concern over the possibility that Tractor Supply would have to adapt its workplace drug policies to reflect differing marijuana laws in different states rings a little hollow — national companies like Tractor Supply or Target or Holiday Inn are always going to have to deal with states’ varying employment laws. Still, the court is correct when it says Garcia was asking the court to affirmatively oblige Tractor Supply to permit activity prohibited by the CSA. Until federal law changes, we expect more employees like Garcia to be fired for their cannabis use.

Oregon Marijuana: The Medical Program Gets Serious

Posted in Medical Marijuana, Oregon
Oregon medical marijuana: more changes coming.

Oregon medical marijuana: more changes coming.

The Oregon Health Authority (OHA) last week published 100 pages of proposed permanent rules for the medical marijuana program. Per HB 3400, the rules are supposed to take effect on March 1, and because they are such a long time coming, one might get the feeling that OHA is hoping to ram these rules through. That would be a shame, because the rules make some drastic and unexpected changes to the 18-year-old Oregon Medical Marijuana Program.

At the same time, the state legislative session began on Monday, and we expect to see the legislature preempt a few of these OHA proposals statutorily, especially given allegations from the likes of Sen. Floyd Prozanski. Mr. Prozanski, who co-vice chairs the Joint Committee on Implementing Measure 91, alleges OHA has “run amok” and begun a “direct assault” on the medical marijuana program, according to an article in the Oregonian.

On Monday, OHA circulated a memorandum to the Joint Committee, which you can find here. The memorandum walks back some of the more controversial provisions in the 100-pager, like those related to security, operating procedures and waste management, and it also promises to strip out language related to water rights and pesticide requirements (although existing state laws would still apply). In any case, it should be noted that many of the OHA changes are required under HB 3400, so the agency’s overall discretion is somewhat constrained.

For a high level summary of major changes in the proposed rules—including recordkeeping, reporting, plant count limits, grow site grandfathering, processor registration, and residency requirements—your best bet is an OHA memo titled “Medical Marijuana Changes.” The memo is broken out to cover these and other topics, most of which will form the new regime. We will be helping many of our OMMP clients transition into this regime, as quickly and painlessly as possible.

Although these rules are not yet final, the opportunity for public comment to OHA has ended. However, HB 4014, HB 4132 and SB 1511, currently under consideration in the legislature, all touch on medical marijuana to some degree (as a bonus, HB 4094 covers marijuana banking). Testimony is being taken on all of these proposed pieces of legislation as we speak, and anyone wishing to be heard should check the schedule and head down to Salem at the next opportunity.

Desperate Times Call for Desperate (Marijuana) Lawsuits, Part 2

Posted in Colorado, Litigation
Bad lawsuits are also a waste of time

Bad lawsuits are a waste of time too

Last year we wrote extensively on a pair of lawsuits instigated by Safe Streets Alliance (SSA) and business owners and individuals against Colorado officials, canna business people, and financial institutions assisting those businesses. The suit against the financial institutions has gone away (through settlement and dismissal), and the other now appears to be headed in that same direction.

Two plaintiffs, Hope and Michael Reilly, joined with SSA to bring suit against the owners and operators of a planned recreational cannabis grow facility near their 105-acre property in Rye, Colorado. This lawsuit also named local (the Pueblo County Commissioners) and state officials (Colorado’s governor, the Executive Director of the Colorado Department of Revenue, and the Director of the Marijuana Enforcement Division) as defendants. The Reillys claimed that the federal Controlled Substances Act preempts Colorado’s Amendment 64 and that state officials carrying out Colorado cannabis laws were violating the CSA and the Supremacy Clause of the U.S. Constitution. They further alleged that the owners and operators of the grow facility, along with the Pueblo Commission that had licensed the facility had formed a conspiracy to violate federal drug laws, in violation of the federal Racketeer Influenced and Corrupt Organizations Act. (More on RICO actions here). As you can probably tell, these were NIMBY-type neighbors, but the legal theory advanced by SSA and the Reillys is not your typical nuisance claim.

Back when we first posted on this case, we opined that the plaintiffs would have a hard time demonstrating standing to bring their claims, and we were partly right. The state and local government officials brought motions to dismiss plaintiffs’ “preemption claims” arguing there is no private right of action under the Supremacy Clause and that it is strictly the business of the US Department of Justice on whether (or not) to enforce the federal CSA. The court agreed, citing recent U.S. Supreme Court authority that the Supremacy Clause is a “rule of decision” for courts and is not “the source of any federal rights” and does not create a cause of action. The Court also cited the DOJ’s broad discretion to prosecute drug crimes. Importantly, the decision does not really rest on any part of the Cole Memo, which would put it on shakier grounds since the memo is only non-binding policy. The Pueblo Commission also won dismissal of all the RICO counts against it on the basis of long-settled law that RICO claims are not cognizable against municipalities because exemplary damages (one of the big draws of civil RICO) are not available against governments and governmental entities cannot form the criminal intent RICO requires. Judge Blackburn’s entire order can be viewed here.

There are a couple of takeaways here. The state and local government defendants are out, but the case can continue against the grow facility, and the plaintiffs’ attorney has promised it will. But, as we said before, RICO cases are notoriously disfavored, and my firm’s litigators see the plaintiffs having a hard time proving their damages. Still, the RICO claims have not seen much action and the case could drag on. Plaintiffs are also reportedly considering an appeal of the trial court’s decision. That very well may happen, but the trial court’s order is on solid legal footing and we do not see that being overturned.

This case provides solid precedent that state and local officials who are merely doing their jobs and implementing their state’s marijuana laws are not subject to a private suit just because their tasks may violate the CSA. But the decision is even broader than that, in that the court essentially held that you need more than the Supremacy Clause and the CSA to have a case. The court’s straightforward reasoning isn’t dependent upon any facts particular to this case, so it should be persuasive to courts in other jurisdictions, and could be relied upon by defendants facing similar claims. Yet, even as definitive as Judge Blackburn’s opinion seems to be, we are sure the more determined anti-marijuana litigants out there won’t be deterred.

This one isn’t over yet, so stay tuned for more.

Marijuana Law Webinar on February 4: Did We Tell You That’s It’s Free?

Posted in Business Basics, Events, Legal Issues

On Thursday, February 4, Canna Law Group attorneys Hilary Bricken and Robert McVay will be presenting a free Marijuana Law webinar that will focus on the following legal issues relevant to the cannabis industry:

  • Federal law enforcement policies and state law conflicts
  • State law insurance requirements
  • Enforceability of contracts in the marijuana industry
  • Marijuana business banking and associated risks
  • Real property issues for marijuana producers, processors, and retailers
  • Marijuana products liability
  • Current issues cannabis business lawyers are facing

This hour-long webinar will take place at 1pm EST/10 am PDT. For assistance or for more    information, please contact Info@LitigationConferences.com or call (484) 324-2755, extension 200.

This webinar is CLE Eligible and free of charge. Please note that those wishing to attain CLE credit must register individually. To attend, please register here.

We promise you it will be good.

Producing Cannabis Extracts in California is a Risky Business

Posted in California, Legal Issues, Medical Marijuana
We're from the DEA and we're here to burn up your hashish

We’re from the DEA and we like burning hashish

On January 28, 2016, San Diego police narcotics officers along with the San Diego Fire-Rescue Hazmat Unit raided MedWest Distribution, a California manufacturer of concentrated cannabis extracts, also commonly known in the marijuana community as “hash oil,” “honey,” “wax” or “shatter.” Cannabis extracts are produced through complicated methods of extracting cannabinoids (like THC and CBD) from the marijuana plant using solvents such as butane, carbon dioxide, alcohol and water.

The MedWest raid has received particular attention due to the company’s affiliation with Bhang Corporation, a California-based retailer of marijuana edibles and concentrates with a large presence in medical marijuana states across the country. Police are now reporting one reason for the raid was that the process MedWest used to manufacture hash oils was both dangerous and illegal. Two MedWest employees were also arrested on charges of illegal manufacturing and distribution of hash oil.

For companies currently manufacturing or thinking of producing cannabis extracts in the state of California, this raid serves as a cautionary tale. Not only is there a real danger to producing extracts that results in harsher penalties and increased scrutiny from local authorities, production of cannabis extracts through certain methods in California is still illegal under state law.

The Danger of Producing Cannabis Extracts. The methods used to produce cannabis extracts involve complicated and precise techniques and often dangerous, volatile solvents, resulting in a risk of physical harm to the manufacturers and to those around them. In recent years, butane has been the most commonly used solvent and cannabis extracts produced using this method are also known as “butane hash oil (BHO).” The major burn treatment centers at two hospitals in Northern California reported in 2015 that nearly 10 percent of severe burn cases were attributed to butane hash oil explosions, which was more than burn cases from car accidents and house fires combined. A chief burn surgeon at the hospitals stated:

Between 2007 and 2014, 101 patients with suspected or confirmed burns from butane fires were admitted to the two hospitals, most of them in the past three years.

Since there is real danger involved in manufacturing cannabis extracts, producers have a higher risk of drawing unwanted attention to themselves, especially when things go wrong and accidents lead to investigations by local fire departments and police.

Producing Cannabis Extracts Through Certain Methods is Illegal in CaliforniaUnder California Health and Safety Code section 11379.6, the manufacture of a controlled substance by chemical extraction is punishable by imprisonment of up to seven years and a fine of up to $50,000. Though the general public usually associates this law with illegal “meth labs” (thanks Breaking Bad), the language also applies to manufacturers of marijuana products using certain types of extraction methods. Marijuana is a controlled substance under both federal and California law, and section 11379.6 applies to methods of creating marijuana products using volatile chemicals which pose a danger to the public, such as butane. To make matters worse, in August of last year, California Governor Jerry Brown signed a new law that increased punishments for producing hash oil within 300 feet of a residential building.

The takeaway is that even though it is now legal in California to possess and distribute medical marijuana extracts produced under any method, it is still illegal to manufacture them using butane and other volatile solvents. In contrast, manufacturing of butane hash oil is legal and regulated in other medical marijuana states such as Colorado, Massachusetts and Rhode Island. With the passing of new legislation allowing for medical marijuana manufacturing licenses in California, and the potential for licenses for recreational marijuana to follow, the question remains whether California will choose to block this large sector of cannabis extract producers from its marijuana market.

State of Cannabis: Not-So-Sweet Home Alabama

Posted in Advocacy, Medical Marijuana, States

Marijuana and Alabama

This is number four in our series ranking the fifty states on cannabis from worst to best. This is our fourth in the series. Idaho was last week, ranking as the third worst state for cannabis. This week we head to the heart of Dixie, where good marijuana laws are severely lacking, but especially in Alabama.

Alabama

Criminal Law. Marijuana possession in Alabama is a misdemeanor with an overly harsh penalty. Alabama makes possession for personal use (any amount less than one kilogram — 2.2 pounds) a Class A misdemeanor punishable by up to one year in jail and a fine up to $6,000. Think about that for just a minute. In places like Washington, Oregon and Colorado, you can possess cannabis legally but in Alabama, even trace amounts could get you a year in jail. And it gets worse as possession of over one kilogram of marijuana or a second offense (of any amount), is a Class C felony that warrants a one to five year prison sentence and a fine of up to $15,000.

“Drug trafficking” means cultivating, selling, or distributing marijuana and those things are punished harshly in Alabama under its mandatory minimum sentences for drug trafficking, with the sentences depending on the quantity found, as follows:

  • 2.2 to 100 pounds earns a mandatory minimum sentence of 3 years and a $25,000 fine.
  • 100 to 500 pounds earns a mandatory minimum sentence of 5 years and a $50,000 fine.
  • 500 to 1,000 pounds earns a mandatory minimum sentence of 15 years and a $200,000 fine.
  • 1,000 pounds or more earns a mandatory life sentence without parole. 

Alabama obviously takes a tough stance on marijuana, remaining one of the few states with a mandatory life sentence for a cannabis offense.

To make matters worse for Alabama, its laws disproportionately impact communities of color. A 2014 New York Times article noted that Black Alabamans are 4.4 times more likely to be arrested for marijuana than Whites, even though Blacks and Whites generally use marijuana at a comparable rate.

Future of Legal Marijuana. Legalization in Alabama looks bleak. The political website Salon ranked Alabama as the least likely state to legalize marijuana. So far, every state that has legalized marijuana for recreational use has done so through the initiative process. Alabama does not have an initiative system. This means its ultra-conservative state legislature must pass a bill to legalize marijuana. This is the same state legislature that refuses to repeal life sentences for pot. Recreational marijuana is not going to happen in Alabama any time soon.

Alabama did though recently pass a very limited medical marijuana bill, known as “Carly’s Law,” to allow medicinal CBD oil in a study to treat children with severe forms of epilepsy.  Only the University of Alabama at Birmingham’s Department of Neurology may recommend the oil. The study has excluded many children with epilepsy, which recently led one mom to speak out to the state legislature:

“Parents need to be able to not worry about whether they are going to jail to try to save our children,” said Jodi Mitchell, whose son Robert was forced to leave the UAB study. “There is nothing in this world worse than watching them suffer. We need help. We need y’alls help.There is no reason I should have to consider becoming a criminal to help my child because I live in the wrong ZIP code.”

Despite these pleas, it remains difficult for epileptic children in Alabama to access medicine that could reduce their seizures.

Bottomline. Using marijuana in Alabama puts you at risk of a long jail time and its limited medical marijuana program is failing many of the children it was intended to benefit and helping pretty much nobody else. The entire State of Alabama is “the wrong ZIP code” for cannabis and until it gets its act together, marijuana users should stay away.