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2. Patients and Cardholders <br />A dispensary obviously is not a patient or cardholder. A "qualified patient" is an individual with a <br />physician's recommendation that indicates marijuana will benefit the treatment of a qualifying <br />illness. (Cal. H&S Code secs. 11362.5(b)(1)(A) and 11362.7(f).) Qualified illnesses include cancer, <br />anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which <br />marijuana provides reliefs' A physician's recommendation that indicates medical marijuana will <br />benefit the treatment of an illness is required before a person can claim to be a medical marijuana <br />patient. Accordingly, such proof is also necessary before a medical marijuana affirmative defense <br />can be claimed. <br />A "person with an identification card" means an individual who is a qualified patient who has <br />applied for and received a valid identification card issued by the State Department of Health <br />Services. (Cal. H&S Code secs. 11362.7(c) and 11362.7(g).) <br />3. Primary Caregivers <br />The only person or entity authorized to receive compensation for services provided to patients and <br />cardholders is a primary caregiver. (Cal. H&S Code sec. 11362.77(c).) However, nothing in the law <br />authorizes any individual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code <br />sec. 11362.765(a).) It is important to note that it is almost impossible for a storefront marijuana <br />business to gain true primary caregiver status. Businesses that call themselves "cooperatives," but <br />function like storefront dispensaries, suffer this same fate. In People v. Mower, the court was very <br />clear that the defendant had to prove he was a primary caregiver in order to raise the medical <br />marijuana affirmative defense. Mr. Mower was prosecuted for supplying two people with <br />marijuana. 18 He claimed he was their primary caregiver under the medical marijuana statutes. This <br />claim required him to prove he "consistently had assumed responsibility for either one's housing, <br />health, or safety" before he could assert the defense. 19 (Emphasis added.) <br />The key to being a primary caregiver is not simply that marijuana is provided for a patient's health; <br />the responsibility for the health must be consistent; it must be independent of merely providing <br />marijuana for a qualified person; and such a primary caregiver-patient relationship must begin before <br />or contemporaneously with the time of assumption of responsibility for assisting the individual with <br />marijuana. (People v. Mentch (2008) 45 CalAth 274, 283.) Any relationship a storefront marijuana <br />business has with a patient is much more likely to be transitory than consistent, and to be wholly <br />lacking in providing for a patient's health needs beyond just supplying him or her with marijuana. <br />A "primary caregiver" is an individual or facility that has "consistently assumed responsibility for <br />the housing, health, or safety of a patient" over time. (Cal. H&S Code sec. 11362.5(e).) <br />"Consistency" is the key to meeting this definition. A patient can elect to patronize any dispensary <br />that he or she chooses. The patient can visit different dispensaries on a single day or any subsequent <br />day. The statutory definition includes some clinics, health care facilities, residential care facilities, <br />and hospices. But, in light of the holding in People v. Mentch, supra, to qualify as a primary <br />caregiver, more aid to a person's health must occur beyond merely dispensing marijuana to a given <br />customer. <br />Additionally, if more than one patient designates the same person as the primary caregiver, all <br />individuals must reside in the same city or county. And, in most circumstances the primary <br />caregiver must be at least 18 years of age. <br />© 2009 California Police Chiefs Assn. 4 All Rights Reserved <br />65A-65