folder Filed in Culture, Policy
Super Bowl Cannabis Consumption
Peter Cervieri

This weekend tens of thousands of out-of-state visitors will hit the bay area for Super Bowl 50. This begs the question, can they legally enjoy northern California’s finest herb?

Recently, David Downs of SF Gate’s Smell the Truth blog published a cannabis primer for those attending Super Bowl 50 at Levi’s Stadium in Santa Clara. For those visiting from out-of-state, according to Downs, you’re SOL.

He states that:

Medical marijuana = for Californians only

Who Qualifies

To qualify, you will almost always need to prove California residency (like with a valid state ID), have a qualifying condition, and get a recommendation from a state-licensed physician…

Who Doesn’t Qualify
For out-of-state patients, California has no ‘reciprocity’ — meaning it does not allow out-of-state pot patients to go to dispensaries. Sorry. (There exists the slight potential for out-of-state residents to obtain a California medical marijuana recommendation and use dispensaries — but finding a participating physician or dispensary isn’t something a tourist would enjoy undertaking.)

However, nowhere in the law does it state that out-of-state individuals cannot get a doctors recommendation and then provide that recommendation to a dispensary to legally buy marijuana.

According to Lauren Vazquez, a bay area lawyer who has worked for nearly a decade to end cannabis prohibition and whose practice provides services to advocacy groups, collectives, cooperatives, vendors, and cultivators, “the only residency requirement is to get the State MMJ ID card (because it is funded through the counties), but the card is voluntary. Anyone can get a recommendation. The problem is doctors, dispensaries, and now officials think CA residency is required. Nowhere has a court or the AG guidelines stated residency is required.”

In 2013 she wrote on the issue:

There is nothing in California law that requires a patient or collective member to be a California resident. Only the recommending doctor must be licensed in California. Patients from other states are free to get a rec from a California doctor and join a California collective. Some would say that the preamble to Prop 215 clearly states that it is intended to help “seriously ill Californians,” however the preamble has no legal effect and there are no cases denying patients protection in California based on their residency.

According to Vazquez, an out-of-stater could visit San Francisco for the Super Bowl, go to a medical marijuana doctors office, show hisout-of-state license for identity purposes, and get a recommendation that he could then bring to a dispensary to then legally purchase anything an in-state resident with a valid doctors recommendation can buy.

Whether the doctor or dispensary honors the out-of-stater is a different story, but technically according to the letter of the law, doctors are allowed to issue a recommendation to the out-of-stater and dispensaries can sell cannabis to the newly minted patient at the dispensary.

I reached out to a few doctors and dispensaries to see what their respective policies are.

Dr. David Bearman, a California physician with a long history serving the medical marijuana community, said,

I have several out of state patients. They have come from Michigan, Minnesota, South Carolina, New York, Arizona, and Oregon. In all cases they have contacted my office first. As with all patients we do a pre-visit screen on the phone inquiring as to diagnosis, previous treatment and last time treated. If they have a qualified condition we make an appointment. In most cases they bring medical records or other documentation of their medical condition. To my knowledge the dispensaries have recognized these recommendations the same as any other.

Jean Talleyrand, CEO of MediCann, responded, “MediCann refers all patients to qualified medical professionals. We do not limit exams only to California residents.  However, we do require the patient establish a bona-fide relationship with the physician.”

Jeff Hergenrather, of Cannabis Clinicians, said, “I consult with anyone in the world, though if they want a recommendation/approval for CA I require a face to face initial visit.”

The EZ Clinic responded, “We do write for out of state the past 2 years. We do know dispensaries that accept as well.”

The dispensary feedback I received was quite different. I queried mostly San Jose, San Francisco and Oakland dispensaries since the Super Bowl is in their back yard.

For example, Deborah Sadler of CBC Berkeley responded, “No, we cannot allow a patient that does not reside in California entrance to the dispensary.  The only exception to that would be to military or students that have temporary residency here and can verify that.  It’s a shame, I wish we could, and sorry I don’t have the answer you are looking for.”

For those dispensaries that did not allow out of state visitors with a recommendation to enter the dispensary, when I pushed them for a reason why, I either didn’t get a response or was told, “our lawyers advised us against it.” No one referenced specific statutes that forbid the sale of cannabis to out of state visitors.

Finally, I reached out to the California legal and policy community.

Nate Bradley, California Cannabis Industry Association: [Lauren Vazquez] assessment is correct. It is allowed, but most dispensaries won’t serve non CA residents. Sometimes this is a requirement for local licensure. Most of the time it is due to the the lack of clear state rules. That is why many collectives chose to error on the side caution and simply don’t let non residents inside.

Tiffany Wu, Harris Moure’s Canna Law GroupWhile Prop 215 refers to “seriously ill Californians,” S.B. 420, which authorizes collectives in California, states that Prop 215 was enacted “in order to allow seriously ill residents of the state” to use marijuana for medical purposes which seems to imply that the language in Prop 215 was meant to cover California residents.  Either way, most dispensaries will require proof of California residency (such as through a CA driver’s license) in order to become a member of the collective.  The federal government has specifically expressed that an effective state regulatory system will prevent diversion of marijuana outside of the system and to other states which is a concern with sales to out-of-state residents.

Matt Kumin, The Law Offices of Matthew KuminCourts routinely look to precatory language or preambles to laws if there is any ambiguity in a law, whether that law was passed by voters such as Proposition 215, or by a Legislature, such as SB 420 (the Medical Marijuana Program Act or MMPA).

Here, the actual language of the statute does not explicitly state that only California residents may avail themselves of the defense or immunity (see, People v. Mower) to a criminal charge if they have a doctor’s recommendation to use cannabis.

But, faced with an ambiguity or the absence of a clear answer in the language of the statute, courts will look to that precatory language.  In the case of Prop. 215, the clear intent is evidenced by the reference to “Californians”.  Now, whether an individual who comes to California to get a doctor’s recommendation can satisfy the various residency requirements, requirements that actually differ under different code sections (residency for voting purposes is different than residency for obtaining a driver’s license) would depend on the circumstances of the case.

Ashley Bargenquast, Tully & WeissThis issue is one of following the letter versus the spirit of the law. The only time that a patient technically needs to be a California resident is when they are applying for the identification card established in SB 420. So long as an individual has a recommendation for medical cannabis from a  doctor licensed by the state of California they are in principle a California medical cannabis patient. BUT there is an argument to be made that because the protections were created for “Californians” and no cannabis is allowed to travel outside of the state, that having an out-of-stater get a recommendation is less legitimate. It is this perceived lack of legitimacy that gives dispensaries pause.

My stance is that if an individual lives in a state other than California, say Washington, needs medical cannabis, and frequently travels between Washington and California, then it would only make sense for them to have both a California and a Washington recommendation so as to allow them to possess and use medical cannabis in either location. They would, of course, not be allowed to transfer their Californian medical cannabis to Washington or visa-versa though. This means that they would need to have a dispensary or patient with which they could leave their unused medical cannabis.

A potential hang up with my preferred take would be that under the Medical Marijuana Regulation and Safety Act (MMRSA) any physician who recommends medical cannabis to a patient must be the individual’s attending physician. That only means that they have taken responsibility for an aspect of medical care, treatment, diagnosis, counseling, or referral of a patient and that they have conducted a medical examination of the physician.  This is by no means impossible to do in a single visit, as practice has shown, but could be a hurtle for multi-state patients.

Tom Hata, Hata LawI echo exactly what “Fired up Attorney” Lauren Vazquez says, Calif law is not explicit either way.  Calif Cannabis Law has always been under an unregulated cloud since Prop 215 was enacted.

My take is that Physicians and Dispensaries typically only deal with Calif residents because it’s safer for those businesses to do so.  If one of their patients crosses state lines, with Cannabis, doing so immediately invokes Federal Jurisdiction of U.S. Attorneys/DOJ.   -The Federal Government, in investigating the matter would presume and argue that a Physician/Dispensary, who issued the recommendation despite being presented with evidence that the patient was a nonresident,  was an accessory to the distribution or sale of Cannabis in the non-Calif jurisdiction.  

My legal opinion is that, out of an abundance of caution, Physicians and Dispensaries should avoid issuing recommendations/Cannabis to out of state residents because Patients’ activities are too difficult to track.   Even if you include qualifying language in your agreements that the issued recommendation may only be used in Calif or in jurisdictions that allow reciprocity (Nevada), your business is still threatened by rogue patients.  

Donny Brand, Brand Law Firm:

This is a two part question:

(1) Can a physician be held criminally liable in the State of California for recommending marijuana to an out-of-state patient for medical purposes?

In my opinion, the answer to question #1 is:  no, a physician cannot be held criminally liable in the State of California merely for recommending marijuana to an out-of-state patient for medical purposes.  The authority for this is Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal. 1997) and Cal Health & Saf Code § 11362.5(c).

(2) Can a “dispensary” be held criminally liable for distributing medical marijuana to an out of state resident?

The answer to question #2 is more complicated.  

In my opinion, a non-resident cannot be held criminally liable for possessing medical marijuana if he or she otherwise fits within the scope of Cal Health & Saf Code § 11362.5(d).

But what about distributing medical marijuana to a non-California resident?

It is true that nothing in the relevant statutes specifically prohibits a medical marijuana collective from distributing medical marijuana to a non-California resident.  However, laws that make up our current system in this state are silent on many issues respecting the distribution of medical marijuana.  It’s a hodgepodge of local ordinances, case law, and guidelines issued by the Attorney General and other government agencies.  To a large degree, medical marijuana “dispensaries” have been operating in the “Wild West” in California.

Governor Brown recently signed a series of new bills into law collectively known as the California Medical Marijuana Regulation and Safety Act (MMRSA) that will ultimately clarify many issues.  MMRSA does not become fully effective until 2018.  How all the regulatory agencies will interpret the various provisions of MMRSA is unknown at this time.

I cannot say definitely one way or another whether the authorities — and ultimately the courts — would consider the practice of distributing marijuana to non-California residents lawful.  It’s an issue of first impression in this state – and I, for one, am not comfortable recommending the practice at this time.

James Clark, James J. Clark Law Offices P.C.

1)  The federal ninth-circuit case of Dr. Marcus Conant, et al., v. McCaffrey et al. (later, Conant v. Walters) held that nothing prevents any doctor from advising a patient about cannabis therapy, or documenting that approval or recommendation.  It is probable that the case’s reasoning would be applicable throughout the country, although the case is only controlling in the ninth-circuit.

2) California medical cannabis dispensaries understandably limit their services to the degree that they are comfortable with.  For example, although it is explicitly lawful, some dispensaries do not accept minors as patient members even with their parent’s approval.  Although I agree with Ms. Vazquez’ analysis, I would say that even though it is not supposed to be controlling, prefatory language in the law like “seriously ill Californians” can sometimes (even though mistakenly) be taken quite seriously by courts,  prosecutors, and law enforcement.  For example, the prohibition on profiting from medical marijuana activities was only included in the prefatory language of Proposition 215, but this language has since been adopted by a number of courts as a factor in deciding the lawfulness of the activity, and has thus become controlling precedent in some areas even if it is technically incorrect.  Many dispensaries choose to be very conservative in their actions as a way of protecting themselves, their employees, and their patients’ access to their medicine.  Other dispensaries feel quite comfortable serving people of any residency status who are in California and who have a California doctor’s recommendation.

If you’d like to weigh in on the topic, feel free to get in touch with your thoughts – peter AT futurecannabisproject DOT org.

Hat tip to my friend Chikodi Chima for introducing me to the SF Gate article and Lauren Vazquez.