California businesses have three options currently: 1) SB 420 patient collective defense until 2019; 2) MCRSA medical marijuana licenses available in 2018; 3) AUMA (Prop. 64 nonmedical licenses available as provisional licenses now or with state licenses beginning in 2018.

California adults also have four choices as to how to legally grow marijuana for personal use or sharing without getting a state license. These gardens must be noncommercial and can be grown for nonmedical personal use and sharing or it can be following one of three medical marijuana protocols as discussed below. 

Any adult can grow and harvest six plants legally.

Under Prop. 64, HS 11362.1, the Adult Use of Marijuana Act, legalized growing up to six (6) plants of any size per household and to keep or give away the entire harvest as long as there is no “quid pro quo” payment. Localities can impose reasonable regulations but cannot ban home gardens.

A qualified patient has a defense for any reasonable amount

Local governments can ban medical marijuana gardens by local ordinance but they cannot take away the defenses provided by state law.

Prop. 215 HS 11362.5, the Compassionate Use Act, allows any “reasonable” amount of processed or plants. Some localities have allowed up to 99 plants in 100 square feet but that is not related to what is reasonable, it is simply an amount below the threshold for five years mandatory prison sentence in the federal system. The fewer plants you have the better, preferably less than 19 total per year based on federal law.* Under Prop. 215, patients are not allowed to sell or give away any marijuana, it is strictly for personal medical use.

There are two different safe harbor amounts for patients — including a defense for sales that ends in 2019 

Under SB 420 HS 11362.77 and 11362.775, the Medical Marijuana Program Act, California qualified patients and caregivers are allowed to have eight ounces of processed bud and six plants for themselves or in a collective and patient members can give or sell to one another, but that legal defense will end in two years, beginning in 2019. In the meantime, there should be some sort of written agreement among the members and nobody should be “profiting” from the collective but payment for time and expenses are allowed, except only for two more years.

Under AB243 HS 11362.777, posted below, the Medical Cannabis Regulation and Safety Act, patients are allowed 100 square feet per household and a caregiver can provide cannabis for up to five patients from any amount of plants growing in 500 square feet of canopy, subject to local regulations and bans, but it will be illegal for patients to sell marijuana to one another without a license starting in 2019.

— Chris Conrad, Editor 510-275-9311

Below is the safe harbor statute from MCRSA

AB 243 HS 11362.777 (g) Regulations
This section does not apply to a qualified patient cultivating marijuana pursuant to Section 11362.5 if the area he or she uses to cultivate marijuana does not exceed 100 square feet and he or she cultivates marijuana for his or her personal medical use and does not sell, distribute, donate, or provide marijuana to any other person or entity.This section does not apply to a primary caregiver cultivating marijuana pursuant to Section 11362.5 if the area he or she uses to cultivate marijuana does not exceed 500 square feet and he or she cultivates marijuana exclusively for the personal medical use of no more than five specified qualified patients for whom he or she is the primary caregiver within the meaning of Section 11362.7 and does not receive remuneration for these activities, except for compensation provided in full compliance with subdivision 11362.765 (c).— For purposes of this section, the area used to cultivate marijuana shall be measured by the aggregate area of vegetative growth of live marijuana plants on the premises. Exemption from the requirements of this section does not limit or prevent a city, county, or city and county from regulating or banning the cultivation, storage, manufacture, transport, provision, or other activity by the exempt person, or impair the enforcement of that regulation or ban.

* Marijuana is still illegal under federal law and mandatory sentences apply. For growing 100 plants that can be aggregated over a period of five years, so for 20 plants per year over five years, you could face a mandatory minimum sentence of five years. Growing 19 or fewer plants per calendar year will avoid this risk.