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By Thea Skinner
November 25, 2016 (San Diego) - Proposition 64, the Adult Use of Marijuana Act (AUMA), approved by voters, legalizes recreational use of marijuana in California, where legal medical use continues for some two decades. Legalization of recreational pot is raising questions from cities, landlords, employers and marijuana users. Just what are the rights and limitations under California’s new law?
The act legalizes recreational marijuana for persons 21 years of age or older, establishing sales and cultivation taxes. The proposition contains control, regulation and tax portions. Although legal in the state with limits, marijuana sales and transportation is illegal under federal law. Cities and counties may regulate marijuana sales under legalization.
Key players are the state’s departments of food and agriculture, consumer affairs and public health – handling licensing, monitoring and collecting fees.
Controlling the Weeds
The League of California Voters urges residents to contact their city attorney for information on specific codes, regulations and policies. According to their Nov. 22 AUMA Facts and Answers Sheet “A person 21 years of age or older may possess, process, transport, purchase or give away to persons 21 years of age or older not more than 28.5 grams of marijuana in the non-concentrated form and not more than 8 grams of marijuana in a concentrated 3 form including marijuana products. If the AUMA passes, these activities will be lawful under state law and cannot be prohibited under local law.”
Adults may grow up to six marijuana plants for use at a private residence, states Proposition 64. There is a maximum of six plants per household, no matter how many people reside there. Still, smoking marijuana in a public place is illegal in the state.
Cities may ban delivery with ordinances updated to the three state departments. Any marijuana smoking or growing on private property may be banned by a landlord, state, or agency, said the League.
Landlords hold the right of decision in accommodating medical smoking on private property. Under AUMA landlords are not required to accommodate medical marijuana patients, and may choose to follow tobacco bans on properties.
The San Diego Union Tribune quoted Debra Carlton, senior vice president of public affairs at the California Apartment Association (CAA) Nov. 24: “The short answer is yes, a private property owner could prohibit the smoking of marijuana at his or her property,” Carlton said. "The landlords could also say yes, but they are allowed to say no and restrict it or ban it altogether."
Beginning Nov. 9 medical marijuana patients, many whom are disabled, may grow on private property seeking alleviation from pain and ailments. It is unclear if medical marijuana smoking is federally protected under the Americans with Disabilities Act (ADA), as laws vary based on jurisdiction. ADA does not override health and safety requirements established under federal laws, as marijuana smoke falls under public health and safety, according to the Equal Employment Opportunity Commission.
The League cautions that under AUMA “local governments can reasonably regulate, but cannot ban the personal indoor cultivation” for recreational marijuana plants per private residence. Medical cultivation does not require a license “unless a city enacts an ordinance imposing a reasonable regulatory scheme that would preclude them from doing so before complying with the city’s regulatory requirements.”
“Local governments may regulate or ban all personal outdoor cultivation. However, the AUMA includes language purporting to repeal any ordinance that bans personal outdoor cultivation upon the California Attorney General’s determination that nonmedical use of marijuana is lawful under federal law.”
Wacky Tobacky gets Regulation
Similarly, zoning regulations outlaw marijuana within 1,000 feet of a school, day-care center or youth center while children are present. Where state law already prohibits tobacco smoking, including restaurants and theaters, marijuana is illegal. Smoking marijuana in public is a fine of up to $100, so private residence use is permitted. Smoking pot in a place where tobacco smoking is prohibited or near a school may be a fine up to $250.
On the roadways, fines and penalties are assessed for drugged driving and smoking marijuana while driving. A Drager DrugTest 5000, a type of saliva swab, may be used to check for drugged driving. Expansion of roadside tests is to be determined. Federal highway checkpoints such as Border Patrol stations or agricultural checkpoints continue to check for marijuana--and just one seed is considered a felony; transporting marijuana across state lines is also illegal.
To transport, process, or sell marijuana, a state license is required. State agencies begin issuing licenses by Jan. 1, 2018 for a fee, still being determined, for processing and enforcement. Such licenses are issued through the California Department of Consumer Affairs, Bureau of Marijuana Control, which is drafting regulations. To run a dispensary, a background check is required with denial for felony convictions involving fraud, drug trafficking, violence, or selling drugs to a minor.
Selling marijuana without a license may result in a misdemeanor with penalties up to six months in jail and $500 in fines, along with possible civil penalties.
Recreational growers obtain licenses through the department of food and agriculture.
Taxation with Representation
Growers may undergo a cultivation tax by the state of $9.25 per ounce for flowers and $2.75 per ounce for leaves. Cities and counties may also impose grow taxes for services and enforcement.
Dispensaries are required to tax sales of recreational marijuana with an excise tax of 15 percent starting Jan. 1, 2018. In a Nov. 17 press release, the California Board of Equalization, or BOE, declared medical patients exempt from marijuana sales taxation stating: “Sales of medical cannabis to those who have a medical marijuana identification card (MMIC) issued on a county-by-county basis by the California Department of Public Health (CDPH) and a valid government-issued identification card are now exempt from sales and use tax.”
Products included in the release are: Medical cannabis, medical cannabis concentrate, edible medical cannabis and topical cannabis.
BOE requires dispensaries to claim a deduction on their sales and use tax returns for exempt medical marijuana sales.
Though regulations are being drafted, the January 2018 date is set, giving the green light for marijuana legalization.
SOURCES
Equal Employment Opportunity Commission /ADA - https://www.ada.gov/2010_regs.htm
BOE https://www.boe.ca.gov/news/marijuana.htm
ca.gov http://vig.cdn.sos.ca.gov/2016/general/en/pdf/text-proposed-laws.pdf#prop64
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