Good News for California Primary Caregivers and their Qualified Patients

The Great State of California protects Primary Caregivers and their Qualified Patients.

Primary Caregivers may receive compensation in full compliance with subdivision (c) of Section 11362.765 of the Health and Safety Code and are exempt from the licensure requirements of Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA).

If you are a Primary Caregiver or want to be one, our office can help you comply with California Law and ensure your success and service to your Qualified Patients.

Should you have any questions and would like a complimentary telephone consultation, please call our office toll free at 888-828-2483 between the hours of 9 am and 4 pm, Monday through Saturday.

The 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.

Early in 2019, Health & Safety Code Section 11362.775 that authorized collectives and cooperatives was repealed.  Which means terminated and thus collectives and cooperatives formed under Health & Safety Code Section 11362.775 are no longer recognize under California law.

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.

Who Can Be a Primary Caregiver?

Health & Safety Code Section 11362.7(e) provides,  “A primary caregiver shall be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Section 6922, 7002, 7050, or 7120 of the Family Code.”

What are the Protections?

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:

(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 Limitations of a Primary Caregiver:

Business and Professions Code 26033(b) provides, “A primary caregiver who cultivates, possesses, stores, manufactures, transports, donates, or provides cannabis exclusively for the personal medical purposes of no more than five specified qualified patients for whom he or she is the primary caregiver within the meaning of Section 11362.7 of the Health and Safety Code, but who does not receive remuneration for these activities except for compensation in full compliance with subdivision (c) of Section 11362.765 of the Health and Safety Code, is exempt from the licensure requirements of this division.”

Health and Safety Code Section 11362.7(2) provides,  “An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver.

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 and file Paracorp Incorporated’s 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:
  • Corporate Kit, Corporate Seal ($127.00 purchase price included),
  • Articles of Incorporation with the Secretary of State by Standard Service ($99.50 Service – Filing Fee included,
  • Prepare and file mandatory Secretary of State, Statement of Information ($20.00 filing fee included),
  • Act as point of contact for Paracorp Incorporated (agent for service of process),
  • Prepare Paracorp Incorporated  Annual Information sheet and Annual Statutory Agent for Service of Process Agreement ($125 annual fee included),
  • Unanimous Consent of Directors (1st meeting of directors that releases the incorporators and elects the directors, offices and managing member,
  • Prepare By-Laws,
  • Membership Certificates (Issued to Primary Caregiver(s)/Stakeholder(s),
  • Qualified Patients Agreements: Designation as primary caregiver.
  • Qualified Patients Accountability File Folder Check-List,
  • Qualified Patients Agreement,
  • Release and Waiver of Liability-Indemnity Agreement,
  • HIPPA – Medical Release of Physician’s Recommendation/Statement,
  • Qualified Patients, Transportation & Possession Agreement,
  • Supporting Documents and Qualified Patient Number Template –
  • All Download all to CD (in .pdf format).
  1. The Supporting Records Binder for All Qualified Patients” holds all of the formation documents referenced above AND all of the completed Qualified Patient documents.  The documents in this binder are not stapled so that additional copies can be easily made to be placed in the “Supporting Records Binder” to be taken with the primary caregiver when transporting cannabis products to their Qualified Patients. See below.
  2. 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 Qualified Patient to show compliance with the possession and cultivation guidelines. This binder only contains those Qualified Patient agreements that the primary caregiver is cultivating for or transporting to in the event compliance documentation is requested from law enforcement.Location of medicinal cannabis provider?

Health & Safety Code § 11362.768 provides,
“(a)This section shall apply to individuals specified in subdivision (b) of Section 11362.765.
(b)No medicinal cannabis cooperative, collective, dispensary, operator, establishment, or
provider who possesses, cultivates, or distributes medicinal cannabis pursuant to this article
shall be located within a 600-foot radius of a school.
(c)The distance specified in this section shall be the horizontal distance measured in a
straight line from the property line of the school to the closest property line of the lot on which
the medicinal cannabis cooperative, collective, dispensary, operator, establishment, or
provider is to be located without regard to intervening structures.
(d)This section shall not apply to a medicinal cannabis cooperative, collective, dispensary,
operator, establishment, or provider that is also a licensed residential medical or elder care
facility.
(e)This section shall apply only to a medicinal cannabis cooperative, collective, dispensary,
operator, establishment, or provider that is authorized by law to possess, cultivate, or
distribute medicinal cannabis and that has a storefront or mobile retail outlet which ordinarily
requires a local business license.
(f)Nothing in this section shall prohibit a city, county, or city and county from adopting
ordinances or policies that further restrict the location or establishment of a medicinal
cannabis cooperative, collective, dispensary, operator, establishment, or provider.
(g)This section does not preempt local ordinances, adopted prior to January 1, 2011, that
regulate the location or establishment of a medicinal cannabis cooperative, collective,
dispensary, operator, establishment, or provider.
(h)For the purposes of this section, “school” means any public or private school providing
instruction in kindergarten or any of grades 1 to 12, inclusive, but does not include any
private school in which education is primarily conducted in private homes.

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