Panzer Clarifies “Like Wine” vs. Repeal Myths and FalsehoodsPosted by Mickey Martin on November 4th, 2011

VS.  

A while back CANADIAN cannabis activist David Malmo-Levine (DMV), campaign member for the “Like Wine” campaign, wrote a hit piece that tried to make the case for “Like Wine” over Repeal Cannabis Prohibition by making 5 fallacious points in an effort to sway public opinion. It was posted on the Cannabis Culture site with no oversight or effort to contact the other campaign for response. Why they let DMV post up whatever he wants unchecked is beyond me after the crap he spread about Prop. 19; but that is history now so I digress. Repeal Cannabis Prohibition proponent and leading cannabis attorney in CALIFORNIA, Bill Panzer, was kind enough to respond to these falsehoods and misleading statements.

Let us see where DMV’s assertions fail to meet the burden of truth and morality:

Color Coded for your convenience:

TRUTH KEY:

• PURPLE= Bullshit from a Canadian Activist
• MAROON= Reputable Commentary from an actual cannabis attorney in the State of CA

The source of DMV’s orginal published lies is: http://www.cannabisculture.com/v2/content/2011/09/29/Battle-Marijuana-Bills-Why-Regulate-Better-Repeal

DMV’s first weak claim:

1) There are no colossal screw-ups in RMLW. There is a glaring omission in RCP that would leave everyone vulnerable to arrest.

RMLW would repeal Section 11999 of California’s Health and Safety Code that defines marijuana as a controlled substance. RCP would not. By including the repeal of Section 11999, RMLW ensures that marijuana prohibition really will be repealed and not left standing due to an incomplete listing of the controlling statutes. Don’t take my word for it, read this excerpt from the California Health and Safety Code and decide for yourself:

SECTION 11999. The Legislature finds and declares all of the following:
(b) The Legislature has classified certain substances as controlled substances and has defined the lawful and unlawful use of controlled substances which are commonly referred to as, but not limited to, anabolic steroids, marijuana, and cocaine.

As you can see, this statute, if left standing, could still be used to uphold marijuana prohibition. Thanks to the Chief Counsel of RMLW Bill McPike, all the controlling statutes – including 11999 – were properly included in the list of laws to be repealed by RMLW. Unfortunately, the same cannot be said of RCP.

Bill Panzer’s thoughtful response:

We’ve seen this before.  It wasn’t written by an unbiased reporter, but rather by RMLW campaign member David Malmo-Levine.  It is not accurate. Mr. Malmo-Levine has been asked, but never been able to explain how, under RCPA, prohibition could still exist with no laws outlawing cannabis on the books.  The single statute he refers to (§11999) is not a statute that in any way outlaws or restricts cannabis.  What he conveniently leaves out is that the very next statute, §11999.1 defines “drug”  for the purposes of that entire section as a controlled substance contained in the Drug Schedules in the Health & Safety Code. RCPA removes both cannabis and tetrahydrocannabinols from the schedules (RMLW likely leaves tetrahydrocannabinols in the schedule – admittedly it is unclear as RMLW doesn’t actually specify “terahydrocannabinols”. This would be left to the courts to sort out under RMLW.).

Also left out is that RMLW doesn’t treat it like wine when it comes to minors.  Under California law, selling wine to a minor is a misdemeanor, punishable by up to six months in jail.  Under RMLW, selling cannabis to a minor is only an infraction – the legal equivalent of a parking or traffic ticket.

Under RCPA, selling to a minor can be charged a either a misdemeanor  or an infraction. One wonders how  the voting public will respond to: “Selling pot to your 10 year old is like an expensive parking ticket” ?

DMV’s Second Falsehood:

2) RMLW would repeal felony convictions for minors and replace felonies with fines instead. RCP would not.

RMLW states:

(5) For persons under 21 years of age it is an infraction punishable by a fine up to $2,500.00, for any one of the following:
(A) Possession of over one ounce of marijuana.
(B) Cultivation of marijuana.
(C) Gifting, sharing, distributing, sales, storage, transporting over one ounce of marijuana.
(D) Possession of one ounce or less of marijuana, in this class shall be an infraction with a $100 fine.

RCP applies to adults only. There are no reduced penalties of any kind for those under 21 years old in RCP. Jail is much more dangerous to those under 21 than cannabis ever could be. If you want young people to stop going to jail for cannabis offences then support and vote for RMLW.

Attorney Bill Panzer’s Response:

This is technically true, though entirely misleading and illustrates a weakness in RMLW.  It is true that RCPA doesn’t replace felonies for minors with fines only.  RMLW makes not only possession, cultivation, distribution and transportation by minors an infraction (the legal equivalent of a parking ticket), but also make sales by an adult to a child only an infraction.

RCPA similarly removes all felony statutes, but allows that minors and those adults who sell to them can be charged with either a misdemeanor, (with a six month maximum jail term), or an infraction. Here are the relevant portions of RCPA:

*11426(a). Except as authorized by law, every person under the age of 19 who possesses, **cultivates, transports, or distributes cannabis shall be guilty of a misdemeanor or an infraction.*

*(b)**Except as authorized by law, every person 19 years of age or older who furnishes cannabis to a person under the age of 19 shall be guilty of a misdemeanor or infraction.***

Furthermore, by not including the “Except as authorized by law” language, RMLW creates am ambiguity whereby a court could find that a person under 21 could not legally possess cannabis for medical purposes.

DMV’s Third Flimsy Argument:

3) Only RMLW would prohibit local jurisdictions from banning or taxing dispensaries or instituting discriminatory licensing practices. RCP would not.

From RMLW:

(7) No later than February 1, 2013, the state Alcohol Beverage Control Board shall adopt regulations and procedures, provide and accept forms for the implementation of commercial activity under this Act. Such regulations shall not prohibit marijuana farming, the operation of marijuana establishments or point of sale outlets, either expressly or through regulations that make their operation different than wine or beer regulations and fees, or unreasonably impracticable. … Localities may not adopt higher or extra fees, limits, site plans, zoning, regulations or procedures for commercial activity which are different than those which regulate grape farms, wineries, distribution and sales of wine and beer.

Part of the reluctance of the California public to fully support Prop 19 was a fear that the discriminatory licensing practices – practices that only allowed four med pot dispensaries in Oakland or 41 med pot dispensaries in Los Angeles – would have continued under Prop 19. With RMLW, the authors have ensured that everyone who wants to be a part of the economy will be able to get a job cultivating or retailing, just like the wine industry (there are approximately 11,000 places to buy alcohol in Los Angeles and 160 places to buy alcohol in Oakland, and no “caps” on the number of commercial growers of wine grapes).

Most medical cannabis dispensaries don’t realize it yet, but the recent Tentative Opinion issued recently by the 4th District Court of Appeals in the case of City of Riverside vs. Inland Empire Patients Health and Wellness Center could spell the end of dispensaries located in unfriendly jurisdictions. That is because the court has tentatively concluded that under existing state laws, cities and counties can ban collectives under their zoning ordinances. Once this opinion becomes final, we could be looking at a mass extinction of medical cannabis dispensaries. Only RMLW can override this decision and keep dispensaries open.

Bill Panzer’s Legally Educated Response:

FALSE.  RCPA specifically provides that state law preempts local regulation.  It prevents local authorities not only from banning medical distribution, but also prevents them from banning recreational sales, cultivation etc.

*11424.  This Act, and all state implementations of this Act, shall preempt enactments of local jurisdictions with the exception that local jurisdictions may enhance the rights and protections of persons involved in cannabis related activities beyond what is delineated by the state or this Act.*

DMV’s 4th Line of Bullshit:

4) Only RMLW would explicitly prohibit the monopolization of the cannabis industry with a prohibition on Genetically Modified cannabis. RCP would not.

RMLW states:

(10) Experimentation, development, research, testing, cultivation, sales, or possession of genetically-modified (GMO) marijuana, hemp, and its seeds, shall be banned throughout the state of California.

The Monsanto Corporation has used their genetically modified plants to justify unfair monopolies and destroy the livelihood (and steal the strains of) farmers.

RMLW would stop that from happening with cannabis in California. RCP would not.

Bill Panzer again shows why you should never get legal advice on CA law from a Canadian Activist:

This ban is present in the “Purpose” section of RMLW, but does not appear anywhere in the “Provisions” section.  As a result, it is not part of the actual Act and would likely have no legal force. For example, the “Purpose” section of Prop. 215 stated that it was intended to protect “Seriously ill” Californians.  The term “seriously ill” did not, however, appear in the “Provision” section of 215.  As a result, the Court of Appeal has interpreted 215 to apply to all patients with a doctor’s recommendation or approval and found that there is no requirement of “serious illness”. In addition, while RMLW certainly does state that  one of its purposes is to ban GMO marijuana, the first section of the “Provisions” section defines the term “marijuana” as specifically excluding “non-genetically-modified strains of the Cannabis genus and plant”. Thus, even if a court were to interpret RMLW as banning “GMO Marijuana”, it may not be effective because, under the definition supplied by RMLW, GMO cannabis isn’t marijuana!

RCPA doesn’t ban GMO cannabis but, frankly, I believe, (and I think the rest of the RCPA proponents would agree)  the concept of GMO monopolization doesn’t present a real threat except to some conspiracy theorists.

I’m not aware of any definition of “genetically modified” in law that would be controlling over RMLW. I could even see a conservative prohibitionist judge ruling that a common indica/sativa cross is “genetically modified.”

DMV’s Fifth and Final Delusion:

5) Only the model represented by RMLW enjoys over 62% support in California polls.

The Economist magazine, on February 5-8, 2011, conducted a poll (PDF) of a thousand Americans. One question asked:

30. Some people say marijuana should be treated like alcohol and tobacco. They say it should be regulated and taxed and made illegal for minors. Do you agree?

Strongly agree . . 34%
Agree . . 24%
Neither agree, nor disagree . . 19%
Disagree . .. 7%
Strongly disagree . . 16%

When The Economist was contacted and paid to break down the results by region, the “Western USA” region (which includes California) showed over 62% support for regulating marijuana like alcohol. It appears that replacing cannabis prohibition with a familiar regulatory structure enjoys significantly more support than any simple repeal initiative, as “legalization” without regulation has only been able to muster 55% support.

It is clear that, with the last effort for cannabis law reform failing by such a small margin – with 53.5% of California voters voting “No” and 46.5% voting “Yes” in 2010 – every little bit of support will count, and the 7% difference between support for “regulation like wine” over “simple legalization” may mean the difference between success and failure.

Bill Panzer shows how DMV misleads his Cannabis Culture readers with drivel:

Again, this is a misleading statement.  The poll Mr. Malmo-Levine refers to is not about RMLW.  Furthermore, the poll asks people if they want cannabis treated like alcohol and made illegal for children.  However, when it comes to children, RMLW doesn’t treat cannabis like alcohol. Under current California law, sales of alcohol to a minor is a misdemeanor (B&P Code Sec. 25658(a)), punishable by up to 6 months in jail.  RMLW provides that sales to minors are infractions only. Certainly this poll doesn’t state that  voters agree with sales to a child being the equivalent of an expensive parking ticket.

I certainly support either RMLW or RCPA over current law.  However, in my opinion, RMLW has serious drafting flaws that would tie it up in the courts for years.  That opinion is shared by every criminal defense attorney I have discussed this with who has reviewed the language in RMLW.  The only such attorney I’ve heard of who doesn’t find a problem with the language is, supposedly, Bill McPike, though we only have Steve Kubby’s word for that.  I have offered to debate Mr. McPike on the relative merits and provisions of the two initiatives, but Mr. McPike has, to date, not agreed.  Nevertheless, I don’t believe it helps our movement to publish outright false claims like those of Mr. Malmo-Levine.  These are the tactics that have been championed by Karl Rove and his cronies in recent years.  Such tactics  may be effective in getting votes, but these are tactics without honor.  We should all strive be better than that.

So there we have it. An actual CALIFORNIA ATTORNEY making valid points vs. a CANADIAN KNUCKLEHEAD ACTIVIST with an ax to grind. DMV was one of the major opponents of Prop. 19, in which he authored much of the false conspiracy drivel that ended up being fodder for the evening news and made people believe our community was not behind the initiative. Many of the arguments he made against Prop. 19, such as the age limit, he now supports in his quest to promote “Like Wine.” Nobody should buy into this guy’s nonsense hyperbole. DMV, Dragonflies, Letitia Pepper, and many others will attempt to mislead and dissuade you with their inflammatory and outright false rhetoric and lies. Before you get sold down the river by these agitators with agendas do your homework and do not believe the hype.

There is a reason DMV is not an attorney…because he does not know shit about real law. His contrived argument and imagined reality are dangerous and should not be tolerated. I call on Cannabis Culture to remove this unwarranted attack on a fellow legalization initiative from their website, as it makes it seem like the monkeys are running the zoo. Cannabis Culture is a good informational resource and they deserve better than this nonsense. One would hope it was a simple oversight and that in the future they will have more review of their material before blasting it out on the front page of one of the industry’s most read publications.

The moral of the story is that Canadian Activists are poor references for information on California law and that Malmo-Levine is allowed too much leeway with his barrage of lies and mythology. Bill Panzer is a reputable legal mind who has fought for patients rights and cannabis freedom for decades- in REAL COURTS OF LAW, I might add.

My main reason for supporting RCPA over RMLW is that I TRUST the folks putting it forward. Bill Panzer, Dr. Frank Lucido, Omare Fiqueroa and Joe Rogoway are well-respected members of the cannabis movement and I think are far more trustworthy that Steve Kubby and his trusty wingnut Canadian sidekick David Malmo-Levine. While I will support “Like Wine” if it makes it to the ballot by some miracle, I simply do not trust Steve Kubby to be in charge of operations and messaging for this type of a campaign; and his allowance for his trolls like DMV to publish this bullshit is one of the major reasons why. I think there is a certain worry to having a person who claims his medical cannabis lozenge can cure Bird Flu running a campaign for cannabis freedom….but that is just me.

YOU can make your own decision. Word is there may be other initiatives in the works as well, so as the election nears I think we need to begin to rally the troops and push forward the best option for cannabis consumers. Currently I think that is RCPA. If the community decides a different direction is better then I will gladly support that effort, as well. I just want cannabis to not be a crime anymore so that we can be accepted as equals and I do not have to get searched by cops because of how I smell. Whatever the best way to get there is I AM DOWN.