What is the Future for Collectives, Primary Caregivers and Patients?

Non-Profit Medical Marijuana Program (MMP)The new Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) added a sunset provision to Health & Safety Code Section 11362.775 of the Medical Marijuana Program (MMP) that authorized collectives and cooperatives and will be repealed one (1) year after the Bureau of Cannabis Control posts a notice on its Internet Web site that the licensing authorities have commenced issuing licenses pursuant to MAUCRSA.

However, Health & Safety Code Section 11362.765 remains in full-force for qualified patients, designated primary caregivers and individuals who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medicinal cannabis to the qualified patient or person or acquiring the skills necessary to cultivate or administer cannabis for medical purposes to the qualified patient or person.

What are the Protections and Limitation?

Health & Safety Code Section 11362.765 provides:

(a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357 (possession of marijuana), § 11358 (cultivation of marijuana), § 11359 (possession of marijuana for sale), § 11360 (sale, transportation, importation, or furnishing of marijuana), § 11366 (maintaining place for purpose of unlawfully selling, furnishing, or using controlled substance), § 11366.5 (knowingly providing place for purpose of unlawfully manufacturing, storing, or distributing controlled substance), or § 11570 (place used for unlawful selling, furnishing, storing, or manufacturing of controlled substance as nuisance). This section does not authorize the individual to smoke or otherwise consume cannabis unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute cannabis for profit.

(b) Subdivision (a) shall apply to all of the following:Non-Profit Medical Marijuana Program (MMP)

(1) A qualified patient or a person with an identification card who transports or processes cannabis for his or her own personal medical use.

(2) A designated primary caregiver who transports, processes, administers, delivers, or gives away cannabis for medical purposes, in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver.

(3)  An individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medicinal cannabis to the qualified patient or person or acquiring the skills necessary to cultivate or administer cannabis for medical purposes to the qualified patient or person.

(c) A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use cannabis under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360.

(Amended by Stats. 2017, Ch. 27, Sec. 137. (SB 94) Effective June 27, 2017.)

What are the Required Duties of a Primary Caregiver:

A primary caregiver is a person who is designated by a qualified patient and “has consistently assumed responsibility for the housing, health, or safety” of the patient. (§ 11362.5(e).)

California courts have emphasized the consistency element of the patient-caregiver relationship.

Although a “primary caregiver who consistently grows and supplies . . . medicinal marijuana for a section 11362.5 patient is serving a health need of the patient,” someone who merely maintains a source of
marijuana does not automatically become the party “who has consistently assumed responsibility for the housing, health, or safety” of that purchaser.

A person may serve as primary caregiver to “more than one” patient, provided that the patients and caregiver all reside in the same city or county. (§ 11362.7(d)(2).)

Primary caregivers also may receive certain compensation for their services. (§ 11362.765(c) [“A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided . . . to enable [a patient] to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, . . . shall not, on the sole basis of that fact, be subject to prosecution” for possessing or transporting marijuana].)

Possession and Cultivation Guidelines:

If a person is acting as primary caregiver to more than one patient under section 11362.7(d)(2), he or she may aggregate the possession and cultivation limits for each patient. For example, applying the MMP’s basic possession guidelines, if a caregiver is responsible for three patients, he or she may possess up to 24 oz. of marijuana (8 oz. per patient) and may grow 18 mature or 36 immature plants and must have supporting records readily available.

While the MMP does convey additional immunities against cultivation and possession for sale charges to specific groups of people, it does so only for specific actions; it does not provide globally that the specified groups of people may never be charged with cultivation or possession for sale.

That is, the immunities conveyed by Health & Safety Code, § 11362.765, have three defining characteristics:

(1) they each apply only to a specific group of people;

(2) they each apply only to a specific range of conduct; and

(3) they each apply only against a specific set of laws.

For example, Heath & Safety Code § 11362.765, subd. (b)(3), which grants immunity from certain state marijuana laws to one who provides assistance to a qualified patient or primary caregiver, in administering medical marijuana to the patient or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the patient, affords the specified criminal immunities only for providing the described forms of assistance. This subdivision does not mean a defendant may not be charged with cultivation or possession for sale on any basis. On the contrary, to the extent the defendant goes beyond the immunized range of conduct, i.e., administration, advice, and counseling, the defendant would subject himself or herself to the full force of the criminal law.

How Much will it Cost and What will I Receive?

Fixed Fee: This office’s fixed fee (fixed fee means no other fee will be charge for legal service described below is $3,500.00 (Three thousand, five hundred U.S. dollars)  and includes costs of $371.50 for: Agent Representation Service $125.00, Deluxe Entity Kit $127.00, File Non-Profit Articles of Incorporation $99.50, Parasec Service Fee 1 $45.00, Surcharge 1 $4.50, Agency Filing Counter Fee 1 $15.00, Agency Incorporation Filing Fee 1 $30.00, Certified Copy $5.00, Agency Certified Copy Cost 1 $5.00.

Documents You will Receive:

  1. Prepare and file Articles of Incorporation with the Secretary of State by Standard Service
  2.  Obtain Corporate Kit, Corporate Seal
  3. Prepare By-Laws
  4. Unanimous Consent of Directors (1st meeting of directors that releases the incorporators and elects the directors, offices and managing member.
  5. Membership Certificates (Issued to Stakeholders)
  6. Prepare Membership Agreements: Designation of Primary Caregiver, Membership Accountability File Folder Check-List, Membership & Association Agreement, Release and Waiver of Liability-Indemnity Agreement, HIPPA – Medical Release of Physician’s Recommendation/Statement, Member Cultivation, Transportation & Possession Agreement, Member Transportation & Possession Agreement, Supporting Documents Patient Membership Number Template – Download all to CD (in .pdf format)
  7. Facilitate Client with online Tax ID number
  8. Prepare and file mandatory Secretary of State, Statement of Information ($20.00 filing fee included)
  9. Act as point of contact for Paracorp Incorporated (agent for service of process)
  10. Prepare Paracorp Incorporated  Annual Information sheet
  11. Prepare notices and minutes for special and annual meetings
    This Agreement includes complimentary six (1) year of telephonic nonprofit corporate compliance.  This free services is to ensure that any changes in directors, offices and managing member is properly documented and filed with the secretary of state).

How You Will You Receive Your Documents

You will receive your documents in (3) three separate notebooks: 1. The Original Corporate Kit with Corporate Seal, 2. Supporting Records Binder for All patients and 3. Supporting Records Binder.

1. The Original Corporate Kit with corporate Seal – available in Black, Green and Burgundy – should be kept in a safe place as a backup to the Supporting Records binder for All Patients and includes:
Non-Profit Medical Marijuana Program MMP

  1. Corporate Kit, Corporate Seal ($127.00 purchase price included),
  2. Articles of Incorporation with the Secretary of State by Standard Service ($99.50 Service – Filing Fee included,
  3. Prepare and file mandatory Secretary of State, Statement of Information ($20.00 filing fee included),
  4. Act as point of contact for Paracorp Incorporated (agent for service of process),
  5. Prepare Paracorp Incorporated  Annual Information sheet and Annual Statutory Agent for Service of Process Agrement ($125 annual fee included),
  6. Unanimous Consent of Directors (1st meeting of directors that releases the incorporators and elects the directors, offices and managing member,
  7. Prepare By-Laws,
  8. Membership Certificates (Issued to Stakeholders),
  9. Membership Agreements: Designation as primary caregiver. Membership Accountability File Folder Check-List, Membership & Association Agreement, Release and Waiver of Liability-Indemnity Agreement, HIPPA –
    Medical Release of Physician’s Recommendation/Statement, Member Cultivation, Transportation & Possession Agreement, Member Transportation & Possession Agreement, Supporting Documents Patient Membership Number Template –
    Download all to CD (in .pdf format).

2. “The Supporting Records Binder for All patients” holds all of the formation documents referenced above AND all of the completed membership documents as required by California Law.  The documents in this binder are not stapled so that additional copies can be easily made.  This binder will be used to make the “Supporting Records Binder”.

3. The “Supporting Records Binder for Primary Caregiver” holds just the Article of Incorporation, Federal Tax ID number, Cultivation or Transportation Agreement and the documentation of each patient to show compliance with the possession and cultivation guidelines. This binder only contains those patient agreements that the primary caregiver is cultivating for or transporting to.

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