Advice from a Lawyer About Medical Marijuana
Tuesday, May 31, is the next day on which the U.S. Supreme Court’s ruling in Ashcroft v. Raich could come down. The current mood of uncertainty in the medical cannabis industry can be inferred from the following, which was written by an attorney who knows what s/he’s talking about:
I recommend to anyone who is currently considering starting, investing money in, or renting to a medical marijuana dispensary or garden — that they wait to see what happens in Ashcroft v. Raich before taking another step. I think municipalities and other public entities should be just as concerned as private citizens. The feds certainly didn’t spare West Hollywood.
I, personally feel right now that Raich might just go the right way — but I might be crazy. Because nobody knows what will happen, existing MMJ facilities should be setting up contingency plans in case Raich goes the wrong way. Given the behavior of the people in control of this country, I wouldn’t put it past the Drug Warriors to go ape shit tearing down the medical marijuana community — especially in the blue states, and especially in California — if the Raich decision gives them the power. If they have the option of prosecuting everybody, they will have more than their fill, and will concentrate on some and leave others and their assets untouched. To decrease their chances of being targeted for forfeiture and criminal prosecution, any entity engaged in the legitimate cultivation or dispensing of medical marijuana should make sure their corporate formalities and books are in order, annual reports are filed, taxes are filed and paid, etc. Patients and caregivers should make sure the doctor’s recommendations are all current. They should back up the computer and files and storing the backups off site in a safe place.
The same recommendations I made above would also be crucial if Raich goes the right way. If we prevail on our Commerce Clause argument, I believe the conduct would have to be legal under state law in order for the exemption from federal jurisdiction to apply. Any clubs that open up without licenses, and without complying with the record-keeping formalities of state law — are no more protected from prosecution than a drug dealer on the street corner.
PS: People shouldn’t start moving money out of bank accounts or hiding assets to try to keep them from being seized. That only makes things worse — and could result in money laundering charges. There are no magic bullets — such as trusts, offshore accounts, etc. — that will prevent forfeiture of assets. Those devices actually make it harder to defend the case, and may be construed as money laundering, resulting in criminal charges. It’s best to conduct your affairs as any other legitimate business would do.
The Star Witness
It was an unusual sight: members of the Medical Board of California leaning forward, eagerly attentive, not wanting to miss a word as a member of the public addressed them. The man, Jim Lohse, was tall, 30-something, dressed for casual Friday. He introduced himself as a "medical marijuana provider" from an organization called Area 420 based in Santa Clara. "I hear a lot of reports… I get first calls from medical marijuana patients who just got their cards from Oakland…" He then made some garbled analogy about going to Midas instead of K-Mart for a brake job, the point being:
"Consumers have to watch out for themselves. But I wish the Medical Board would do more to try to eliminate some of the practices. You know this cross referring between dispensaries and doctors. It’s hard to identify, but there’s a Green Medicine Group, that apparently, when you go to Norcal Healthcare in Oakland, and …everybody gets a card there, it’s just known that anyone 18 and with a hundred dollars gets a card. They claim that Dr. Assad reviews the patient files even though the patient’s only seen a Physician’s Assistant, but it must be instantaneously, because the patient still walks out the door with a note. So when you get to the top of the steps the Green Medicine Group is right there handing out a flyer and that takes you to a place where they sell you an ID card and I don’t know if they directly refer you to a dispensary, but it’s just a big mess out there.
"If you’re truly concerned about the patient, something needs to be done to eliminate these practices. You know, the patients need to be better informed. Just to give you one quick example… I’ll give my phone number and webisite, if anyone wants to contact me… I got a call from a patient the other day, who says he met Dr. Assad in Oakland. Now we will not work with a patient if they didn’t meet their doctor directly. All those people trying to do the Physician’s Assistant thing – they can’t put a lawyer out who says it’s a good idea, so I don’t believe in it.
"This patient called up and says, ‘Yeah, I met Dr. Assad in Oakland.’ ‘So what did you think of him?’ It’s kind of a leading question that I asked, basically. He says: ‘Oh, no, Dr. Assad is a woman!’ ‘No, Dr. Assad is 6 foot, 2, male.’
"So, what happened was, this patient saw a Physician’s Assistant and was under a false impression I’m going to finish up by saying: If it happened once, it would be one thing. When I get eight calls from eight patients in three days, and they all think they saw a doctor when they really saw a P.A… I don’t know what to tell you, you’re the experts, and I think from our standpoint [the purveyors'], we’re at risk of arrest. We’re the ones really taking the risk if the doctor doesn’t detect it… What if I have the card from somebody who doesn’t have a sufficient doctor’s note? I can’t imagine what it would be like to be on the stand and have that person say ‘No, I never actually saw a doctor, but I think I have a legal right to smoke pot.’"
Lohse was queried by Ron Morton, MD:
"You implied in your statement that there may be arrangements between the cannabis dispensaries and the physicians that are referring. Are you aware of any financial arrangements between the two?"
"Financial arrangements is a different question. I wouldn’t be aware of that… I think a close look should be taken at Norcal Healthcare, Green Medicine Group and Compassionate Caregivers dispensaries. A quick point, when I was just in that dispensary a couple of weeks ago, they put out a flyer with their locations around the state, and the same style, exact same style of flyer was for the Green Medicine Group. Up til now I thought the Green Medicine Group only gave out referrals but now I hear they opened an office in Oakland to give out ID cards."
Morton requested that the Enforcement Division look into "the unlicensed practice of medicine" and "financial arrangements among the groups." Lohse was immediately approached by Investigator James Ball and Enforcement Chief Joan Jerzak, for some friendly follow-up chit-chat. How’s this for irony? Ball informed Lohse that physicians assistants working under a doctor’s supervision could indeed see patients seeking approval to medicate with cannabis! Which just goes to show, some cops are willing to cut you more slack than some activists.
A booth staffed by the Bakersfield College NORML chapter was shut down April 30 by promoters of the "Relay for Life," an American Cancer Society fundraiser. "It’s not that it’s NORML but that it’s a political group," an American Cancer Society "field advocate" told Nada Behziz of the Bakersfield Californian. "They can have a team here, but they can’t promote their political beliefs."
Relay for Life events are held at some 3800 sites and raise almost $300 million annually for the American Cancer Society. "Teams" solicit pledges and walk laps over a 24-hour period. According to Morgan Collier of NORML:
"We had been raising money for the American Cancer Society for months, and even though they gladly took our money, they would not allow us the same rights as they were allowing to the other teams. They said that we were handing out political propaganda which is entirely untrue. We were ONLY handing out literature that pertained to the positive benefits cannabis can provide for cancer patients, not political literature, AND, we did not one time solicit someone. The only instances in which we handed someone a pamphlet is when they came up to our booth and specifically asked for info on how to become a patient, etc.. We WERE NOT promoting political beliefs, we were merely trying to provide pertinent information to those who requested it.
"About 20 minutes after the American Cancer Society rep first approached me with their absurd requests, they were holding an open panel discussion with several physicians, including oncologists and other cancer specialists, and I went up and asked how they felt about using cannabis to help cancer patients with their various discomforts, and every single doctor, including Dr. Patel, Dr Git Patel’s brother (both are physicians here and Git is the man who put on the whole event) said they believe marijuana is very safe and effective for cancer patients.
"Also, there were teams and groups there that were promoting political beliefs, especially religious groups. We collected literature from several other teams who were political in their message there. While all this was going down, literally dozens of cancer patients and survivors, especially those who appeared to be over the age of 65, continued to come up to ask for info and tell their story about how cannabis was the only thing that helped them make it through their fight against cancer. So many people were denied the info we were trying to provide to them, all thanks to the American Cancer Society." The American Cancer Society "field advocate" called the campus police to enforce the shut-down of the booth. He implied that NORML had hoodwinked the Relay for Life on its application by using its initials, instead of National Organization for the Reform of Marijuana Laws. BC’s Dean of Students Don Turney defended the NORML crew. "I don’t think it was a misrepresentation," he told Bezhiz of the Californian. "I think they did what they should have done. It’s on the organizers to know who they are accepting."
Even then, he added, the application should not have been denied.
I should have asked Morgan why the Bakersfield College NORML chapter was raising money for the American Cancer Society in the first place.
Reminder From The Doctor
Vaporizing is an important technique for avoiding the breakdown products of burning. Follow-up interviews of patients who have made the switch report that they experience significantly less irritation to the throat and lungs. Besides being relieved of chronic bronchitis, improved pulmonary functioning appears to increase physical mobility and exercise. For those patients who medicate before exercise the experience is changed in a positive way.
Prohibitionists conspicuously avoid mentioning vaporization because it detracts from their argument that anything smoked is not medicine. This censorship is prejudicial to public health and well-being. It represents a lapse of ethics and disrespect for medical fact. –Tod Mikuriya
FRED GARDNER can be reached at email@example.com