Pubdate: Wed, 11 Jul 2012
Source: Oregonian, The (Portland, OR)
Copyright: 2012 The Oregonian
Author: Leland Berger
Note: Leland Berger is a lawyer who represents medical cannabis 
patients and their providers statewide from his home in Northeast 
Portland. He also handles state criminal appeals and is the chair of 
NORML's amicus committee.


Oregon's Medical Marijuana Act was predicated on the quaint notion 
that medical cannabis patients would be able to obtain their medicine 
for free. The original concept was that a person suffering from a 
debilitating medical condition would either cultivate for himself or 
find a person to charitably cultivate for him. Legislative amendments 
in 2005 codified the ability of cardholders to freely share "usable 
medical marijuana" and allowed patients to reimburse growers "for the 
costs of supplies and utilities, and no other costs, including labor."

Following the 2010 defeat of a regulated supply system initiative, 
caring and compassionate Oregonians began pushing the envelope, 
principally by facilitating patient reimbursement of growers. The 
legal challenge is to do so without creating a "transfer for 
consideration," because while reimbursement is protected, transfers 
for consideration cause one to lose legal protection. Although 
undefined in Oregon criminal law, "for consideration" means receiving 
something of value and probably also means receiving more than the 
permissible reimbursement.

In Multnomah County, prosecutors and police know that resources are 
limited and that people trying to safely distribute medical cannabis 
do not endanger public safety. They recognize that shutting down 
these establishments creates crime by requiring patients who were 
obtaining their medical cannabis there to go instead to the underground market.

The absence of a regulated supply system itself causes public safety 
problems, however, including an uptick in home invasion robberies of 
registered medicinal gardens. Also, a relatively small amount of 
medical cannabis finds its way to medical and recreational out-of-state users.

The crime, however, is the failed policy of marijuana prohibition. 
Oregonians may have the opportunity to end this here if an initiative 
turned in to the secretary of state's office last week qualifies for 
the November ballot. But if it does not qualify or if voters reject 
it, the need for a regulated supply system will continue, requiring a model.

Several proposals are being discussed among medical cannabis 
advocates and law enforcement opponents. I write to suggest a 
proposal predicated on the understanding of how things currently work.

Growers achieve different yields from their medicinal gardens. 
Patients have different needs, sometimes occasioned by their 
different modalities of use. (Medicated food or candy -- "medibles" 
- -- oil or hashish each utilize more raw marijuana than cured and 
manicured flowers used for smoking or vaporizing.) Generally, growers 
produce more usable marijuana than their patients need (denominated 
"excess"). Some of this excess is lawfully freely distributed among 
cardholders; some is distributed to registered patients; some finds 
its way into the underground market, both inside and outside Oregon.

I propose this: Allow single-patient gardens, either at the patient's 
home or at the grower's location, to continue to be unregulated and 
free from inspection. Require all multiple-patient gardens to be 
licensed, regulated and subject to inspections. Require all excess 
cultivated at all multiple-patient gardens to be delivered to 
licensed, regulated and inspected safe access points for distribution 
to patients. Allow growers reimbursement from patients and from safe 
access points for the cost of their labor.

Regulations should also state that compliance creates an exception to 
the criminal law. Noncompliance should be punishable by fines and 
fees commensurate with other regulated industries. The distribution 
must take into consideration the fact that at least one of every 
three medical cannabis patients qualifies for a reduced fee to 
register with the Oregon Health Authority based on indigence, and it 
should ensure that these patients are not left behind.

Patients deserve safe access to quality medical cannabis, and growers 
deserve to be paid for their labor. The public is entitled to 
monitored compliance with regulations. The Legislature is the place 
for this issue to be resolved, and the upcoming session is the time 
to resolve it.
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MAP posted-by: Jay Bergstrom