Obtaining cannabis is one thing, and many patients grow their own supply. Buying and selling is a different matter. The problem is in receiving payment. Shortly after passage of Prop 215, the initiative's chief proponent, Dennis Peron, argued in Appeals Court that he had a right to sell it at his San Francisco dispensary. [B]ona fide primary caregivers for section 11362.5 patients should not be precluded from receiving bona fide reimbursement for their actual expense of cultivating and furnishing marijuana for the patient's approved medical treatment. ... Assuming responsibility for housing, health, or safety does not preclude the caregiver from charging the patient [59 Cal.App.4th 1400] for those services. A primary caregiver who consistently grows and supplies physician-approved or -prescribed medicinal marijuana for a section 11362.5 patient is serving a health need of the patient, and may seek reimbursement... . We find no support in section 11362.5 for respondents' argument that sales of marijuana on an allegedly nonprofit basis do not violate state laws against marijuana sales. No provision in section 11362.5 so states. Sections 11359 and 11360 explicitly forbid both the sale and the "giv[ing] away" of marijuana. Section 11362.5(d) exempts "a patient" and "a patient's primary caregiver" from prosecution for two specific offenses only: possession of marijuana (§ 11357) and cultivation of marijuana (§ 11358). It does not preclude prosecution under sections 11359 (possession of marijuana for sale) or 11360(a), which makes it a crime for anyone to "sell, furnish, administer, or give away" marijuana (italics added).
- (1997) 59 Cal.App.4th 1383, 70 Cal.Rptr.2d 20 [No. A077630. First Dist., Div. Five. Dec 12, 1997.] The "right to obtain" marijuana is, of course, meaningless if it cannot legally be satisfied. ... Local governments in California are now exploring ways in which to responsibly implement the new law (as, for example, through licensing ordinances) so as to relieve those medically in need of marijuana but unable to cultivate it from the need to do so. I do not think we should make gratuitous blanket determinations which might prematurely interfere with those efforts. (Concurring opinion, Ibid.)
Based on that decision, cities like Oakland, Berkeley, West Hollywood, San Francisco, and Arcata cautiously allowed caregiver- and patient-run dispensaries to operate within their jurisdictions.
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