The City of San Jose just released a memo regarding Medical Marijuana.

The purpose of this Information Memo is to provide some information about the next steps related to the April 19th City Council action to establish a Medical Marijuana Regulatory Program (Program). The City has already received much interest in the application process and questions about the date when the City will begin accepting applications.

At this time, the City is not accepting applications and additional steps are still required before a process can be implemented. Below is additional information of the next steps:

Title 20, Land Use/Zoning Regulations will be heard by the Planning Commission in May; Second Reading of Ordinances establishing the Program (Title 6, Operating Regulations and Title 20, Land Use/Zoning) following the Planning Commission’s meeting;

In late-May, a Manager’s Budget Addendum (MBA) will be issued that will reflect all of the budgetary action required to implement and sustain the Program, such as:

1. Application Processing Fee,
2. Hourly Medical Marijuana Background Investigation Fee,
3. Schedule of Fines, and
4. Annual Operating Fee and required Staffing Plan

June 14 City Council consideration of the above referenced MBA and required City Council approval on June 21, in order to obtain the staff resources to implement and sustain the Program. Given that there
has not been any funding or additional staffing approved at this time to begin implementation, the City will not initiate receipt of applications until the resources are in place; and,

During July or August, further instructions will be made public on the application process with clearer details of the date applications will be made available, due date for receipt of applications, and any additional requirements regarding participation in this process.

The City has maintained a website where all information and previous reports are maintained related to Medical Marijuana. This site will be used to provide information about the application process. The attached flier has been developed to make available at front counters throughout City Hall since there is much interest in this effort.

If you have any questions, please contact me at (408) 535-8280.

Attachment (1):
MEDICAL MARIJUANA COLLECTIVE APPLICATION PROCESS
Information about the application process will be made available in July/August 2011 at: http://www.sanjoseca.gov/medicalmarijuana.asp

Note: There is no need to form lines or visit City Hall at this time, sufficient notice will be provided before the Application Process begins and a due date for applications is established. Thank You for your patience.

SJCBC CLOSES to Become A2C2, the All American Cannabis Collective

San Jose, CA. February 25, 2011 – The San Jose Cannabis Buyers Collective (SJCBC), the first cannabis collective to have opened in San Jose in 2009, today announced that it will discontinue operation as SJCBC and will reopen with a new collective: A2C2, the All American Cannabis Collective on Tuesday, March 1st. The move is in response to the implementation of Measure U which was passed by voters in November 2010.

The SJCBC will discontinue operation as Measure U implementation begins on Tuesday, March 1st. A meeting will be held at San Jose City Hall on February 28th from 9am-11am to discuss Measure U execution.

Measure U allows San Jose to impose a tax of 7% on the gross receipts of businesses located in the city that sell marijuana. The Measure U tax is in addition to the 9.25% CA sales tax, taxing some items at over 16%. The City will tax collectives that have a business license.

The new entity will focus on carrying only products made in America including pipes, vaporizers and other products. In addition, A2C2 will have different sign-in procedures for its members, asking each one to volunteer their time at the collective each time they come in. Volunteer tasks vary from office tasks to janitorial work and community service. If members are unable to volunteer their time for a variety of reasons, they have the option of making a cash donation to the collective.

The collective’s location at 1082 Stockton St. in San Jose will remain the same.

The San Jose Police Department, Officer Brian Ferrante, called the hotel and told them “what we are doing was illegal”. Brian’s actions forced the hotel to cancel our event.

…THERE WILL BE A FUNDRAISING EVENT TOMORROW!

Friday 12/10/10 (we just had to find a new location)

The new location will be:
Medex Collective
2000 Senter Rd,  San Jose, CA

This will not be the same event. This event will start at 4:20pm sharp! It will be a party and information meeting, with donation boxes, a raffle and silent auction. I have donated 420 joints that need to be smoked! Come help us smoke them all! :) This will be a fundraiser/benefit for the Santa Clara County Chapter of Local Union 13. We will re-schedule the Local Union 13 Raid Response Event for a future date (when we can find the right venue)

URGENT UPDATE:

MediLeaf was raided & New Age was charged in court TODAY!

Read More: Mercury News

Video of the MediLeaf raid: here

Please come out and support the fight against SCCSET tomorrow starting at 4:20pm @ Medex Collective, 2000 Senter Rd, San Jose

Sorry for the short notice.

Best Regards,
Dave

Come support your local community & Collectives!!

Help STOP the Raids in Santa Clara County!

Come listen to industry Experts, Attorneys, Physicians & Activists

• Know your rights!

• Learn who’s behind the current raids & propaganda & how to stop them!

• Learn how to keep all patients, collectives, growers and provide safe access.

• Learn about San Jose Measure U.

 
Who:

People who are currently fighting to protect medical cannabis in Santa Clara County & all of California

 
When:

Friday December 10th, 2010

 
Where:

San Jose Airport Garden Hotel, San Jose, 1740 North First Street San Jose, CA ** Room Discount available**

Time: 4:20 pm – 2:00 am

 
Speakers:

• Attorney J David Nick, Learn who’s spreading today’s propaganda and how the CA Chief of Police association’s “Medical Marijuana Dispensary Task-force” want’s to shutdown every club in California

• Attorney Jim Roberts Learn about Santa Clara County Special Enforcement Team (SCCSET) Raids! How to protect your assets

• Attorney James Clark Know your rights!! James spoke directly with SCCSET about their plans for cannabis!

• Dennis Peron,ASA- What to do if you are involved in a RAID!! & discuss safe access in your community

• Dave Local Union 13, discuss the Santa Clara County Chapter of Union Local 13 & San Jose Measure U

• Dr. Higgins, Learn how to get a legal Doctors Recommendation or how to get a Cultivators/Growing License

• Jade Kine, Grow tips from CannAcademy

Raffles with prizes including gift certificates from many different collectives; free grow class, edibles and much more……

VIP Dinner Includes, gift package, raffles, entrance to after Party Event and much more……

Patient Appreciation after Party Event with Live Music & will include free Giveaways!!(Starts at 9:30pm)

 
Why?
ALL PROCEEDS WILL GO TOWARDS A LEGAL DEFENSE FUND TO FIGHT FOR SAFE ACCESS FOR ALL PATIENTS, COLLECTIVE OWNER AND VENDORS. Our goal is to fight back, to end the war against medical cannabis in Santa Clara County and for the state of California!

BUY DISCOUNT TICKETS AT: SJCBC, ANGELS CARE, SJPG, Pharmers HCC and your local collective today!

More info contact: SJCBC @ 408-247-0400 or dave@sanjosecannabis.org

Measure U, the San Jose 10% Marijuana Tax

Tell the City of San Jose, before you tax medical cannabis, let them exist!

San Jose has been discussing creating permits for cannabis clubs for almost a year. To date, San Jose has not put ANY regulations for medical cannabis in place.

The city attorney claims “having a San Jose business tax permit does not make your business legal.” and “Cannabis clubs are illegal in San Jose”.

If the San Jose Tax passes it would ADD 10% tax to ANY cannabis sold in San Jose. When added to the 9.25% the state board of equalization requires we pay, it will be taxing cannabis at OVER 19%. Suppliers to collectives would also pay 10%. In the end taxing cannabis at near 30%! and yet the city still considers it be illegal!

This tax is not designed to help the budget, but to chase cannabis out of San Jose!

If the city wants to tax medical cannabis, they need to create a way to allow them to be legal businesses FIRST.

A few of the concerns with the San Jose Tax Initiative:

• Paying the Measure U tax does not make your business legal. Section 4.66.220
• Section 4.66.600- Creates a new class of criminals out of existing operators, growers, vendors, and potentially even patient caregivers. Which is punishable by a fine of $500 or “six (6) months, or by BOTH such fine and imprisonment.”
• Section 4.66.530 – Allows “the Director” and the Chief of Police to violate HIPPA by investigating “all equipment, of any person engaged in marijuana business in the City”
• Measure U has no separation between Medical Cannabis and “Adult Use” Cannabis. Medication should not be taxable, but if must be taxed, it should be taxed LESS for medical users then Prop19 users.
• Section 4.66.510 Rules and Regulations- Allows “the Director” (of the Finance Department or other director designated by the City Manager) to change the “rules and regulations”, “from time to time” WITHOUT vote of the council!
• Measure U taxes both legal and illegal sales!
  
• Section 4.66.550 Deficiency Determinations- Is completely unnecessary and potentially grants the Director more powers then the IRS.

Some of the most concerning parts of Measure U:

4.66.220 Payment of Tax Does Not Authorize Unlawful Business

A. The payment of a business tax required by this Chapter, and its acceptance by the City, shall not entitle any person to carry on any marijuana business…, nor to carry on any marijuana business in any building…

B. No tax paid under the provisions of this Chapter shall be construed as authorizing the conduct or continuance of any illegal or unlawful business, or any business in violation of any ordinance of the City.

4.66.550 Deficiency Determinations

If the Director is not satisfied that any statement filed as required under the provisions of this Chapter is correct, or that the amount of tax is correctly computed, he or she may compute and determine the amount to be paid and make a deficiency determination upon the basis of the facts contained in the statement or upon the basis of any information in his or her possession or that may come into his or her possession. One or more deficiency determinations of the amount of tax due for a period or periods may be made. When a person discontinues engaging in a business, a deficiency determination may be made at any time within three (3) years thereafter as to any liability arising from engaging in such business whether or not a deficiency determination is issued prior to the date the tax would otherwise be due. Whenever a deficiency determination is made, a notice shall be given to the person concerned in the same manner as notices of assessment are given under Sections 4.66.560 through 4.66.580.

4.66.600 Violation Deemed Misdemeanor – Penalty

Any person violating any of the provisions of this Chapter or any regulation or rule passed in accordance herewith, or knowingly or intentionally misrepresenting to any officer or employee of the City any material fact in procuring the business tax certificate provided for in Chapter 4.76 shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not more than five hundred dollars ($500) or by imprisonment for a period of not more than six (6) months, or by both such fine and imprisonment.

4.66.110 Marijuana Business

The term “marijuana business” means business activity including but not limited to, planting, cultivation, harvesting, transporting, manufacturing, compounding, converting, processing, preparing, storing, packaging, wholesale, and/or retail sales of marijuana and any ancillary products in the City, whether or not carried on for gain or profit.

4.66.070 Engaged in Business

A. “Engaged in business” means the commencing, conducting, operating, managing or carrying on of a marijuana business and the exercise of corporate or franchise powers, whether done as owner, or by means of an officer, agent, manager, employee, or otherwise, whether operating from a fixed location in the City or coming into the City from an outside location to engage in such activities.

B. A person shall be deemed engaged in business within the City if:

1. Such person or person’s employee maintains a fixed place of business within the City for the benefit or partial benefit of such person;
2. Such person or person’s employee owns or leases real property within the City for business purposes;
3. Such person or person’s employee regularly maintains a stock of tangible personal property in the City for sale in the ordinary course of business;
4. Such person or person’s employee regularly conducts solicitation of business within the City;
5. Such person or person’s employee performs work or renders services in the City on a regular and continuous basis involving more than five (5) working days per year;
6. Such person or person’s employee utilizes the streets within the City in connection with the operation of motor vehicles for business purposes.
   
   The foregoing specified activities shall not be a limitation on the meaning ofengaged in business.

Don’t let San Jose chase medical cannabis out of town!

Please vote NO on San Jose Measure U

and YES on Prop 19

Best Regards,
Dave Hodges
Founder
SJCBC LLC

At this study session, the City Council will begin to set policy regarding the tax, including whether the tax will be set at 10% or less, whether the tax will apply to both medical and non-medical dispensaries, if the tax will be a two-part tax, and so on.

Everyone who cares about cannabis in San Jose should attend.

December 13, 2010 1:30 p.m. – 5:00 p.m.

J. David Nick has been SJCBC’s primary attorney from day 1. Without his advice, San Jose may still be the “black hole” of medical cannabis.

If you are unsure of how to vote on Prop 19, or worried Prop 19 will hurt prop 215, please read this:

Subject: AN OPEN LETTER ON PROPOSITION 19
Intro by: Lanny Swerdlow, the Marijuana Anti Prohibition Project

For my support of Prop. 19, I have been subject to the scorn, approbation and the most demoralizing denunciations imaginable by a group of medical marijuana patients exhibiting what can only be termed “medical reefer madness.”

With the best of intentions based on a poorly researched legal analysis, these anti-19 folks have joined forces with the people whose indifference and outright hostility have resulted in, and continue to result in, the arrest, prosecution and imprisonment of thousands of medical marijuana patients.

Their never-ending harangues that Prop. 215 will go into the trash can of history if Prop. 19 is passed is causing medical marijuana patients extreme anxiety and leading them to question their support of this historic and critical piece of reform legislation. Graphically describing the horrors that will descend like a plague of locusts on unsuspecting medical marijuana patients if Prop. 19 passes, the anti-19 cabal insinuates that we are being duped by unscrupulous and untrustworthy people like Chris Conrad, Judge Jim Gray, Dale Gerringer, Dr. Frank Lucido, State Senator Mark Leno, Assemblymember Tom Ammiano, Jeff Jones, Mark Emery and hundreds of others. To see a list of all their claimed enemies of medical marijuana patients, go to: www.taxcannabis2010.org/node/13

To reveal the fallacy of their arguments and to stop stressing patients, I asked my friend, and frankly the friend of every medical marijuana patient in the state of California, J. David Nick, to weigh in on the controversy.

For 18 years, David Nick has successfully litigated a cornucopia of issues regarding cannabis and the applicable laws in both trial and appellate courts. He has not confined his practice to marijuana law, but also litigates cases involving constitutional rights and criminal procedure.

David Nick has never lost a jury trial in a state marijuana case including many precedent setting trials involving some of the most revered figures in the medical marijuana movement such as Brownie Mary, Dennis Peron (Nick has been Peron’s sole attorney since 1994) and Steve Kubby.

One of Nick’s early defenses of Peron’s medical marijuana activism resulted in the first appellate court decision affirming that marijuana can be sold. Kubby’s case was the first large quantity (200 plants) case to be won on the argument that Kubby’s serious ailments necessitated his use of cannabis to keep him alive.

A recent case of interest to patients is the Strauss case, involving a farm in Mendocino County that cultivated marijuana exclusively for a collective in Los Angeles. Nick succeeded in getting a hung jury followed by outright dismissal of all charges involving 250 pounds of processed marijuana, 200 large marijuana plants and $1.5 million in several bank accounts – not exactly consistent with the idea of small collectives with everybody planting, harvesting, trimming and singing Kumbaya.

He is currently representing collectives in Palm Springs, Riverside and Los Angeles in preemptive lawsuits asserting the rights of collectives to provide medicine to their members without undue interference from local government officials.

Nick does not confine his practice to marijuana law, but is involved in significant federal criminal litigation.

His litigation has established the right not to be searched by sniffing dogs without probable cause. This is in contract to car searches where police can search you car for no reason at all.

His litigation has lead to policies requiring police to not draw weapons in a marijuana search unless they have information that the person being apprehended is dangerous.

He has successfully litigated jury trials utilizing a necessity for life defense in order to uphold the operation of needle exchange programs.

As far as I am concerned, these experiences qualify him to provide an opinion about Prop. 19 superior to those I have read from the “sky-is-falling” alarmists

Here is Mr. Nick’s analysis of the effects of Prop. 19 on medical marijuana patients:

- Lanny Swerdlow, RN, LNC

Subject: AN OPEN LETTER ON PROPOSITION 19
From: J. David Nick. Attorney-at-Law

PROP. 19 IS THE BEST THING TO HAPPEN TO MMJ PATIENTS SINCE PROP. 215

Anyone who claims that Proposition 19 will restrict or eliminate rights under the Compassionate Use Act (CUA) or the Medical Marijuana Program (MMP) is simply wrong. If anything, Proposition 19 will permit individuals to grow and possess much more than ever before with patients, coops and collectives still receiving the same protections they are entitled to under the CUA and MMP.

Here is why.

The legal arguments claiming the “sky will fall” if Prop. 19 passes are based on the fallacious conclusion that the Initiative invalidates the CUA and MMP. This baseless fear stems from a flawed legal analysis which focuses on just about every portion of Prop. 19 EXCEPT the relevant portions. This flawed legal analysis is driven by an incorrect understanding of the rules of statutory construction.

Although extrinsic materials (such as legislative committee memos or voter pamphlet arguments) may not be resorted to when the legislative language is clear, courts may never ignore the purpose of the legislation. Every interpretation a court gives a statute must be consistent with the purpose of the legislation. This is why statutes have long “preambles” which explicitly state the purposes of the legislation.

This rule is so controlling that a court is required to ignore the literal language of a legislative statute if it conflicts with the purpose of the legislation. By example I call attention to the appellate court case of Bell v. DMV. In this precedent setting case, the court ruled that a statute must be interpreted to apply to civil proceedings even though the statute they were interpreting stated it applied only to “criminal” proceedings. The court’s interpretation of the statute was consistent with the purposes of the legislation and the limitation to criminal cases in the statute itself was not.

PROP. 19 PROVIDES ADDITIONAL PROTECTIONS TO PATIENTS FROM THE ACTIONS OF LOCAL GOVERNMENT AND LOCAL LAW ENFORCEMENT

Section 2B presents the controlling and relevant purposes for understanding what Prop. 19 can and cannot do. This section EXPRESSLY excludes the reach of Prop. 19 from the CUA and MMP. Sections 2B (7 & 8) specifically state that the purpose of this initiative is to give municipalities total and complete control over the commercial sales of marijuana “EXCEPT as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9.”

Prop. 19 makes it perfectly clear that the Initiative does NOT give municipalities any control over how medical marijuana patients obtain their medicine or how much they can possess and cultivate as the purpose of the legislation was to exempt the CUA and the MMP from local government reach. Whatever control municipalities have over patients and collectives is limited by the CUA and the MMP, not by Prop. 19.

To further reduce everyone’s understandable anxiety over allowing municipalities to unduly control collectives, I direct everyone’s attention to the last statute of the MMP, 11362.83, which reads. “Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws CONSISTENT with this article.”

Since collectives are expressly allowed, local ordinances banning them are not consistent with the MMP. Health and Safety Code Section 11362.83, which limits municipalities ability to ban coops or overly restrict them, is unaffected by Prop. 19 as it expressly states in Sections 2B (7 & 8) that the laws created by Prop. 19 must be followed “EXCEPT as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9.”

PROP. 19 PROTECTS PATIENTS PERSONAL AND COLLECTIVE CULTIVATIONS

Further protecting patients from local law enforcement actions, Section 11303 states that “no state or local law enforcement agency or official shall attempt to, threaten to, or in fact SEIZE or destroy any cannabis plant, cannabis seeds or cannabis that is LAWFULLY CULTIVATED.” If you are a patient, you may “lawfully cultivate” as much marijuana as medically necessary and Prop. 19 protects that right. If you are cultivating for a collective, you may “lawfully cultivate” as much marijuana as your collective allows you to and Prop. 19 protects that right. Unfortunately, many law enforcement officials refuse to recognize the rights provided under the MMP for collectives to “lawfully cultivate” and sell marijuana. Prop. 19 reinforces those rights and makes it even more difficult for law enforcement to bust a collective or collective grower.

IT WILL KEEP POLICE FROM COOPERATING WITH THE FEDS

As you can see from the above paragraph, the statutory scheme Prop. 19 creates expressly forbids law enforcement from seizing lawfully cultivated cannabis.

Prop. 19 will create an insurmountable barrier for local law enforcement which is still bent on depriving you of your rights through the despicable device of using federal law enforcement officers.

Here’s why.

Federal drug enforcement is nearly 100 percent dependent on the ability to use local law enforcement. They do not have the manpower to operate without it. Prop. 19 in no uncertain terms tells local law enforcement that they cannot even “attempt to” seize cannabis. If Prop. 19 passes, California will actually have a law on the books that expressly forbids local police from cooperating with the feds in the seizure of any “lawfully cultivated” California cannabis.

PROP. 19 DOES NOT LIMIT PATIENTS RIGHTS UNDER THE CUA & MMP

The nail in the coffin for those arguing against Prop. 19 is found in Section 2C (1). This is the only section which discusses which other laws the acts is “intended to limit” and nowhere in this section is the CUA or the MMP listed. If the purpose of Prop. 19 was “to limit” the application and enforcement of the CUA and MMP, those laws would have been listed along with all the other laws that are listed in Section 2C (1). Since the CUA and MMP were not listed, then Prop. 19 does not “limit” the CUA and MMP.

It’s that simple.

PROP. 19 MAKES IT EASIER FOR PATIENTS TO OBTAIN THEIR MEDICINE

Section 2B (6) states that one of the purposes of Prop. 19 is to “Provide easier, safer access for patients who need cannabis for medical purposes.” This section is one of the many reasons Prop. 19 is very good for patients. If Prop. 19 passes, the days of having to go through the hassle of getting a doctor’s recommendation to treat simple medical conditions will be coming to an end in those communities which allow Prop. 19 “stores” to exist. When you need an aspirin you do not have to go to a doctor and then to the health department and then to Walgreens – YOU JUST GO TO WALGREENS (the founder of which, Mr. Walgreen, became rich during prohibition by selling “medical” alcohol to patients who had obtained a prescription for alcohol from their doctor).

In those communities which are stubborn and will not allow Prop 19 “stores,” patients will still have the protections of the CUA and MMP and the statutory right to form coops and collectives. Prop. 19 specifically recognizes that these rights are not invalidated and does nothing to limit the ability of patients to cultivate or form collectives or coops.

PROP. 19 ALLOWS YOU TO HAVE A LOT OF MARIJUANA

As an attorney called upon to defend patients and non-patients in marijuana cases, I cannot tell you how beneficial and how much freedom Section 11300 subdivision A (3) of Prop.19 will be to cannabis users. Read it!

Section 11300: Personal Regulation and Controls

(a) Notwithstanding any other provision of law, it is lawful and shall not be a public offense under California law for any person 21 years of age or older to:
(i) Personally possess, process, share, or transport not more than one ounce of cannabis, solely for that individual’s personal consumption, and not for sale.
(iii) Possess on the premises where grown the living and harvested plants and results of ANY harvest and processing of plants lawfully cultivated pursuant to section 11300(a)(ii), for personal consumption.

Section (i) limits possession to one ounce OUT OF YOUR HOUSE. Section (iii) permits people 21 and over to have within their residence or single parcel ALL the cannabis which one grew in their 25 sq. foot parcel, including what you grew this year, what you grew last year and EVERY SINGLE 25 SQ. FT. HARVEST YOU EVER HAD ON THAT SINGLE PARCEL. This covers as many cycles of indoor and/or outdoor grown cannabis as a person can produce as long as each grow was no more than 25 square feet and done in succession.

Clearly section 11300(a) (i) limits personal possession and consumption to one ounce OUT OF YOUR HOME while section11300(a) (iii) is what you are allowed to have AT YOUR RESIDENCE if that is where your 25 sq. ft. garden is located. That this is the case is established by another rule of statutory construction, i.e. the specific controls the general. Here (iii) is the specific statute with respect to what you can have AT YOUR RESIDENCE ONLY or in the words of subdivision (iii) “on the premises where grown”.

The one ounce limitation only applies when you leave your house, not wherever it is you grow your 25 foot plot. I can picture being able to easily defend a person with 200 pounds who is not even medical.

Under Prop. 19 you can only travel with one ounce, but if you are a patient you can still enjoy the protections of the CUA and MMP and can safely travel with eight ounces, or whatever your doctor permits you to have or the needs of your collective, as allowed by the CUA and the MMP. YOUR SUPPLY PROBLEMS CAUSED BY PARANOID CULTIVATION LAWS AND POLICIES THAT AT TIMES LIMIT YOUR PERSONAL CULTIVATION PROJECTS ARE SOLVED BY PROP. 19.

Prop. 19 creates a marijuana sanctuary IN YOUR HOME ONLY. Prop. 19 allows you to have AT YOUR HOME ONLY ALL OF THE PROCEEDS of every successive 25 sq. foot plot. However, Prop 19 only allows you TO REMOVE IT FROM YOUR HOME one ounce at a time if you are a recreational user.

For patients this is not the case because Prop. 19 exempts them from the one ounce out of home restriction. As stated above, if you are a patient then you can take out of your house up to eight ounces, or whatever your doctor permits you to have or the needs of your collective.

Both medical patients and recreational users should note that Section 11300(a) (i) allows you to “share” up to an ounce which tells me that you can furnish as many one ounces to as many friends as you wish, thus if you have a party with 50 people you could give away 50 ounces.

UNDERSTANDING “NOTWITHSTANDING”

As for the argument that the various “Notwithstanding” clauses invalidate the CUA and MMP, I reiterate, that in section 2C (1) where Prop. 19 expressly states which statues are being altered, the CUA and MMP are not listed. Therefore, when you use the word “notwithstanding,” you cannot be referring to statues that have been expressly excluded.

Claiming there is some doubt as to what “notwithstanding” means or refers to requires at most that we reach back to the purpose of the legislation in order to give it proper meaning. Whatever interpretation you give it, “notwithstanding” cannot be in conflict with Sections 2 B (7 & 8) which exempt patients covered under the CUA and MMP from any actions taken by municipalities to regulate the non-medical use of cannabis.

The word “notwithstanding” is used when reversing prior legislation and has traditionally been interpreted by prior case law to be a word employed for the purpose of allowing conduct that had previously been forbidden by other statutes. If the word “notwithstanding” was not used in Prop. 19, municipalities would be able to claim that there is still a prohibition on their participation in the licensing and regulating of this activity.

For example, a law making skipping in front of a school illegal would be overturned by a law which says “notwithstanding other laws, skipping is legal.” If the word “notwithstanding” was not there, then skipping in front of a school would still be illegal even though skipping itself would be legal at any other location.

The rationale behind this rule emanates or comes from another rule of statutory construction which is that existing laws cannot be repealed by inference and instead must be EXPRESSLY repealed. A court cannot find that a law, such as the CUA or MMP, was changed by “implication.” In other words, it cannot repeal a law by ruling that another law implied that it should.

Although Sections 2B (7 & 8) gives cities control over the non-medical distribution of cannabis, that in no way allows a court to repeal or even change the CUA and MMP by ruling that it was “implicit” in Prop. 19 that they do so. It is contrary to any rational understanding of statutory construction to infer that since Prop. 19 gives cities control over the distribution of non-medical marijuana, that it also gives cities the right to control the medical distribution of cannabis beyond what the CUA and MMP allows.

The word “notwithstanding” is simply a legal necessity to repeal the various statutes that prohibit the conduct that prop. 19 now permits.

So can everyone please VOTE YES ON 19.

Sincerely,
J. David Nick
Attorney-at-Law

The cities up to some dirty tricks again. On the heals of SJCBC LLC (the San Jose Cannabis Buyers Collective) and PHCC (Pharmers Health Center Cooperative) vs. the City of San Jose case, the city of SJ has sent out a new round of letters:

(click the image for a larger version)

The problems with this letter, when applied to the SJCBC are:

1. SJCBC is not within 500 feet of any sensitive uses. All the houses around SJCBC are light industrial, and include a paint factory, body shop, and maid service.

2. Pierluigi Oliverio added verbal comments to his memo telling staff that they should allow collectives to be on industrial land.

Based on the results of the case tomorrow, SJCBC will decide on its approach to this letter.

Local Collectives Feel Case is Stronger Due to Judge’s Ruling in Southern California

San Jose, Calif., Aug. 20, 2010 – The case of the SJCBC LLC (the San Jose Cannabis Buyers Collective) and PHCC (Pharmers Health Center Cooperative) vs. the city of San Jose has been extended to Thursday, August 26 to allow attorneys to present the relevance to Wednesday’s recently decided Anaheim case.

“We feel municipalities like San Jose are downplaying the importance of the Anaheim ruling as the decision cut the legs out of the city’s argument,” said Dave Hodges, founder of the SJCBC.

Although the Anaheim decision did not rule on the preemption argument, the ruling did reject the following as valid arguments against cannabis collectives:

1. Sales are not legal.
2. Zoning issues from Ross v. Raging Wire.
3. The Claremont Case is authority for a total ban.
4. Federal vs. State law.

The Anaheim ruling directly affects the SJCBC and PHCC case as it eliminates the city of San Jose’s rational for sending threatening letters to landlords and claiming collectives are illegal in San Jose. The SJCBC and PHCC vs. the city of San Jose will be the first case that uses the Anaheim ruling in court.

“We’re looking forward to getting back into court Thursday so we can once and for all get a decision as this case directly impacts protecting the civil rights of all cannabis patients in San Jose,” said Andy Schwaderer, founder of PHCC.

A Press Conference will be held at 1pm on Thursday, August 26 in front of the SJCBC at 1082 Stockton Ave in San Jose.

In a 7 to 4 vote, the San Jose City Council approved moving item 3.3.c to the November ballot!

They made one modification I recommended, adding the words “up to” before 10%.

One fun part of this initiative requires anyone who is involved in “more than five (5) working days per year”, “whether operating from a fixed location in the City or coming into the City from an outside location to engage in such activities” to have a San Jose Business Tax Certificate, and be subject to this tax.

If this passes in anyone who provides any cannabis related products to any collectives in San Jose will be required to have a business license in San Jose. I am personally in favor of this, but it will create a huge impact upon current patient provider models, and would potentially double the tax, requiring patient providers to pay the up to 10% tax in addition to the collectives.

Even “transporting” any cannabis or “any ancillary products in the City, whether or not carried on for gain or profit” will be taxed, and fall under the guidelines of this initiate. This could refer to caregivers who pick up medication for ill patients.

4.66.210 Business Tax Certificate – Required

A. There are imposed upon all persons engaged in marijuana business in the City taxes in the amounts prescribed in this Chapter and Chapter 4.76. It shall be unlawful for any person, either for him or herself or for any other person, to commence, transact or carry on any marijuana business in the City without first having procured a business tax certificate from the City under Chapter 4.76 and having paid the tax set forth therein, and without complying with any and all provisions contained in this Chapter. The carrying on of any marijuana business without complying with any and all provisions of this Chapter and Chapter 4.76, shall constitute a separate violation of this Chapter and Chapter 4.76 for each and every day that such marijuana business is so carried on.

B. The business tax certificate required to be obtained under Chapter 4.76 and the taxes required to be paid under this Chapter and Chapter 4.76 are declared to be required pursuant to the taxing power of the City of San José solely for the purpose of obtaining revenue and are not regulatory permit fees.

4.66.070 Engaged in Business

A. “Engaged in business” means the commencing, conducting, operating, managing or carrying on of a marijuana business and the exercise of corporate or franchise powers, whether done as owner, or by means of an officer, agent, manager, employee, or otherwise, whether operating from a fixed location in the City or coming into the City from an outside location to engage in such activities.

B. A person shall be deemed engaged in business within the City if:

1. Such person or person’s employee maintains a fixed place of business within the City for the benefit or partial benefit of such person;
2. Such person or person’s employee owns or leases real property within the City for business purposes;
3. Such person or person’s employee regularly maintains a stock of tangible personal property in the City for sale in the ordinary course of business;
4. Such person or person’s employee regularly conducts solicitation of business within the City;
5. Such person or person’s employee performs work or renders services in the City on a regular and continuous basis involving more than five (5) working days per year;
6. Such person or person’s employee utilizes the streets within the City in connection with the operation of motor vehicles for business purposes. The foregoing specified activities shall not be a limitation on the meaning of engaged in business.

4.66.110 Marijuana Business

The term “marijuana business” means business activity including but not limited to, planting, cultivation, harvesting, transporting, manufacturing, compounding, converting, processing, preparing, storing, packaging, wholesale, and/or retail sales of marijuana and any ancillary products in the City, whether or not carried on for gain or profit.