75A - PH - MEDICAL MARIJUANA - PROHIBIT

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space for marijuana activity, and creating a narcotic nuisance continue to be illegal under California law. Patient Under section ] 1362.5(b)(1}(A}, a patient is anyone a physician has determined will benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, ~laucoma, arthritis, migraine, or any other ill»,ess for which marijuana provides relief zc A physician's .recommendation that indicates medical marijuana will benefit the treatment of an illness is required before a person can claim to be a medical marijuana patient. Accordingly, such proof is also necessary before a medical marijuana affirmative defense can be claimed. 3. Primary Caregiver A primary caregiver is an individual who has "consistently assumed responsibility far the housing, health, or safet of a patient".21 The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. I,f more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. In most circumstances the primary caregiver must be at least 18 years of age. It is important to note that it is almost impossible for astore-front medical marijuana business to gain true primary caregiver status. Businesses that call themselves "cooperatives", but function like store-front dispensaries, suffer this same fate. In People v. Mower, the court was very clear that the defendant had to prove he was a primary caregiver in order to raise the medical marijuana affirmative defense. Mr. Mower was prosecuted for supplying two people with marijuana.22 He claimed he was their primary caregiver under the medical. marijuana statutes. This claim required him to prove he "consistently had assumed responsibility for either one's housing, health, or safety" before he could assert the defense.' The key to being a primary caregiver is not simply that medical marijuana is provided for a pati.ent's health: the responsibility for the health must be consistent. Any relationship astore-front medical marijuana business has with a patient is more likely to be transitory than consistent. A patient can go to any dispensary he chooses. He can even visit different ones on a single day or any subsequent day. Courts have found that a patient's act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make them one. The relationship between patient and primary caregiver must be consistent over time. Any business that cannot prove its relationship with the patient meets these requirements is not a primary caregiver. Functionally, the business is a drug dealer and is subject to prosecution as such. 4. Store-front medical marijuana cooperatives and dispensaries Since the passage of the Compassionate Use Act of 1996, many store-Eton. t medical marijuana businesses have opened in the state.24 Some are referred to as 4 75A-68