I have to say I find the mailers against Los Angeles Measure D (May Ballot) put forward by the Angelenos For Safe Access amusing. Yes, “people should know what they are smoking.” But in no way will a $10 tax increase and dramatic reduction in the number of dispensaries “allow minors to enter and purchase marijuana at dispensaries.” Nothing suggests that. Perhaps patients will find it more difficult to access medical marijuana, but the tax increase does not affect those who grow their medication at home, collectives of 3 or less persons or licensed health facilities. Unfortunately, as the law stands now, there are no constitutional safeguards protecting medical marijuana dispensaries from city regulations and bans.
Exactly one year ago, the 9th US Circuit Court of Appeals refused to reconsider its ruling that closing and prohibiting medical marijuana dispensaries does not violate the rights of individuals with disabilities under the Americans With Disabilities Act (ADA) in Jones v. City of Costa Mesa. Title II of the ADA prohibits public entities from denying the benefit of public services to any “qualified individual with a disability.” Under the ADA, a patient using an “illegal drug” loses this protection, with the exception of “illegal drug use” under the supervision of a licensed health care professional. Even if medical marijuana is legal in California, marijuana is classified as an “illegal drug” under federal law (CSA) and one that does not come within the ADA’s exception.
Instead of scaring voters with the language and images of a bad 1990s D.A.R.E. ad, why not appeal to our sense of logic? Why not remind voters that marijuana is medication? You cannot tax medication. If the state of California wishes to maintain that medical marijuana is a form of prescription medicine, and not a soft-means of legalizing a still contentious controlled substance, medication cannot be taxed, by the state or its municipal entities. Medical marijuana businesses, like pharmacies, are entitled to exemption from sales tax.
The 1996 California Compassionate Use Act is looking more and more like smoke and mirrors – the state is repeatedly refusing to enforce its definition of marijuana, seemingly incapable of doing so when challenged in the courts and actively legislating in the opposite direction. If the state wishes to solve its financial problems through marijuana sales, it should just legalize the pot already and go the way of tobacco. As a state on the verge of bankruptcy, California can use all the help it can get. Tobacco products retailers are subject to a 31% surtax. Measure D’s suggested tax increase $60 of $1,000 sales is only 6%. If legalized, the state could generate a higher tax revenue. Require licensed distributors, wholesalers and retailers and tax everyone – legally!