- Posted by Laura Croft, Esq
- On September 14, 2016
- California, expungement, felon, felony, MCRSA, regulations
New California state law, MCRSA, promises comprehensive regulation and licensing for commercial activities relating to medical cannabis, but presents additional hurdles for those with felony convictions. Under SB 643, background checks are required and the licensing authority can deny a license application if the “applicant or licensee has been convicted of an offense that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made.”
A licensing committee is to consider ANY felony controlled substance offense (including marijuana-related offenses), violent or serious felonies, or felonies involving fraud, deceit or embezzlement, or any sanctions by a local licensing authority in the past 3 years (SB 643 Section 19323(a)5).
The Drug Policy Alliance explains that the bill provides for discretion to deny licensing to any persons with a felony marijuana conviction, but does require felons to be turned down, which is the case in many other states. In light of the way drugs law have been systematically implemented, African Americans and Latinos will be excluded and impacted at a heightened level. Society cannot turn a blind-eye on one of the most tragic failures in the war on marijuana – the disparate impact on racial minorities. The ACLU’s report entitled “The War on Marijuana in Black and White” shows that where black people represent 6.7% of the population in California, they account for 16.3% of the arrests (or citations) for marijuana, while rates of usage are virtually the same between black and white populations. These same individuals will face additional barriers and possible restrictions to the commercial cannabis industry.
Moreover, many of the most experienced growers and specialists in California’s Cannabis industry have felony convictions stemming from related activity that is now legal. California’s counties and cities, including Sacramento and Oakland, are calling for a system to expunge past arrests and convictions for cannabis-related offenses, and emphasizes that it is unfair to exclude people from economic opportunities for engaging in such conduct, which is now legal, particularly under laws that have been disparately enforced. Oakland City Councilmember At-Large, Rebecca Kaplan’s resolution urges MCRSA, a compilation of recently enacted AB 243, AB 266, and SB 643, to remove barriers to opportunity, and that generally, California adopt a system to enable people to have cannabis related conduct expunged from their records.
There are options for felons seeking to expunge their records, pursuant to CA Penal Code 1203.4. Expungement, under PC 1203.4, indicates that the conviction has been set aside, a not guilty plea is entered and the case is dismissed. However, an expungement order does not relieve an individual of the obligation to disclose the conviction in response to any direct question “for licensure by any state or local agency.”
There is a push to create a system to expunge past arrests and convictions for cannabis-related offenses and remove past convictions as a reason, in itself, to exclude someone from participating in a permitted cannabis business under MCRSA; however, presently prior convictions can be used as a basis to deny licenses to participate in the cannabis industry. MCRSA licensing will not take effect until 2018; however, expungements take time.