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Home My WebLink About04 CA 2015-005 MEDICAL MARIJUANAAGENDA REPORT ■ ■ITEM #4 k4 F kP- 4p MEETING DATE: DECEMBER 8, 2015 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: CODE AMENDMENT 2015-005 (ORDINANCE NO. 14£6) — MEDICAL MARIJUANA RECOMMENDATION That the Planning Commission adopt Resolution No. 4307, recommending that the City Council adopt Draft Ordinance No. 1466, amending Tustin City Code (TCC) Sections 9270c and 9297 to expressly prohibit marijuana cultivation, processing, delivery, and distribution in all zoning districts. APPROVAL AUTHORITY TCC Section 9295f authorizes the Planning Commission to make a recommendation to the City Council on proposed Zoning Code amendments. BACKGROUND AND DISCUSSION Proposed Code Amendment Proposed Code Amendment 2015-001 would expressly prohibit the establishment and operation of marijuana cultivation, processing, delivery, and distribution activities in all zoning districts in the City. Legislative Background In 1996, the voters of the State of California approved Proposition 215 entitled "The Compassionate Use Act of 1996" or "CUA"' to enable seriously ill Californians, under the care of a physician, to legally possess, use, and cultivate marijuana for medical use under state law. In 2003, the California Legislature adopted SB 420, entitled the Medical Marijuana Program Act ("MMPA") which permits qualified patients and their primary caregivers to associate collectively or cooperatively to cultivate marijuana for medical purposes without being subject to criminal prosecution under the California Penal Code. Neither the CUA nor the MMPA require or impose an affirmative duty or mandate upon a local government to allow, authorize, or sanction the establishment of facilities that cultivate, process, or distribute medical marijuana within its jurisdiction. Planning Commission Report December 8, 2015 Code Amendment 2015-005 Page 2 Under the Federal Controlled Substances Act, the use, possession, and cultivation of marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need. In February of 2006, the City Council adopted Interim Urgency Ordinance No. 1309, which prohibited the establishment of any medical marijuana dispensary in the City for forty-five (45) days. The Ordinance was extended in March of 2006, and was later superseded by the adoption of Ordinance No. 1322 on December 4, 2006. The purpose and intent of Ordinance No. 1322 was to prohibit all illegal uses, including medical marijuana dispensaries, to promote the health, safety, morals and general welfare of the residents and businesses within the City. On October 9, 2015, Governor Jerry Brown signed the "Medical Marijuana Regulation and Safety Act" (`MMRSA") into law. The MMRSA becomes effective on January 1, 2016, and contains provisions that govern the cultivation, processing, transportation, testing, and distribution of medical marijuana to qualified patients throughout the state. The MMRSA creates a State licensing program for issuance of permits that allows cultivation, processing, delivery/transportation, and distribution of medical marijuana. However,. the MMRSA also contains statutory provisions that confirm the right of local governments to enact ordinances regulating or prohibiting marijuana cultivation, processing, delivery, and distribution. Accordingly, under the MMRSA, State permits for cultivation, processing, delivery/transportation, and distribution of medical marijuana will not be issued absent proof of express authorization for such activity by the local government agency in which the activity is to take place. ANALYSIS Since the enactment of the CUA in 1996, questions concerning the scope of local authority to regulate medical marijuana have been heavily litigated. Most importantly, on May 6, 2013, in the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., 56 Cal. 4th 729, the California Supreme Court confirmed the right of municipalities to ban medical marijuana dispensaries pursuant to the local police power, holding that neither the CUA nor the MMPA preempted a zoning ordinance which declared medical marijuana dispensaries to be a prohibited use of land. Under the 2015 MMRSA, cities may continue to prohibit or regulate marijuana businesses within their jurisdictions. However, if a city does not expressly prohibit the delivery of medical marijuana within its jurisdiction, delivery will be allowed to a patient within that city with only a State dispensary license. In other words, absent an express delivery ban, medical marijuana delivery into the city will be legal even where the city has banned marijuana dispensaries. Similarly, if a city does not have a land use ordinance regulating or rohibitin the cultivation of marijuana as of March 1. 2016 the State Department of Food and Agriculture will be the sole licensing authority for medical marijuana cultivation applicants. In that case, no local permit or approval will be Planning Commission Report December 8, 2015 Code Amendment 2015-005 Page 3 required and cultivation of marijuana within such a city will be legal (with a State issued permit) even if the city has a rnarijuaria dispensary ban. Medical marijuana cultivation, processing, delivery, and distribution are not listed as "permitted uses" in any zoning district in the City of Tustin ("City"). The Tustin City Code ("TCC"} provides that: (1) any use that is not expressly permitted in a district as a permitted use or as a conditionally permitted use, including a use in a district determined to be similar in character to a particular use allowed in such district as provided in this Code, shall be deemed a prohibited use and such use shall not be allowed in such district; and (2) Notwithstanding any provision of this Code to the contrary, any use, entitlement, authorization, license, or permit allowed or issued under this Code, including without limitation any accessory or ancillary use, shall be consistent with applicable State and Federal law. Any use or activity that is illegal under local, State, or Federal law shat! be deemed a prohibited use in all districts within the City. However, the TCC does not expressly prohibit the cultivation, processing, delivery, or distribution of medical marijuana. To avoid having such federally prohibited activities permitted by the MMRSA, proposed Ordinance No. 1466 expressly prohibits the establishment and operation of marijuana cultivation, processing, delivery, and distribution activities. Significant adverse impacts associated with medical marijuana dispensaries were chronicled by the California Police Chiefs' Association in its 2009 report entitled "White Paper on Medical Marijuana Dispensaries" (Attachment A) and the Orange County Chiefs of Police and Sheriff's Association in its 2010 report entitled "Public Safety Issues Related to Medical Marijuana in Orange County" (Attachment B). These reports include documented evidence that medical marijuana dispensaries pose a substantial threat to the public health, safety and welfare. According to the reports, medical marijuana dispensaries often result in increased crime and nuisance conditions, including: (1) armed robbery, murders and burglaries; (2) an increase in disturbance calls, pedestrian and vehicular traffic, loitering and noise; (3) organized crime, money laundering and firearm violations; and (4) illegal sales of marijuana to, and use of marijuana by, minors and other persons without medical need. Several California cities and counties have experienced significant adverse impacts and negative secondary effects on the public health, safety, and welfare associated with and resulting from the establishment and operation of medical marijuana dispensaries. According to these communities, news stories widely reported, and medical marijuana advocates, medical marijuana dispensaries have resulted in and/or caused an increase in crime, including burglaries, robberies, murders, property damage, illegal sales of marijuana to, and use of marijuana by, minors and other persons without medical need, as well as nuisance conditions for adjacent businesses, in the areas immediately surrounding such medical marijuana dispensaries. Planning Commission Report December 8, 2015 Code Amendment 2015-005 Page 4 Marijuana plants, as they begin to flower and for a period of two (2) months or more, produce a strong odor, which is offensive to many people, and detectable far beyond property boundaries if grown outdoors. In the case of multiple qualified patients who are in control of the same legal parcel, or parcels, of property, in the case of collective or cooperative cultivation, or in the case of a caregiver growing for numerous patients, a very large number of plants could be cultivated on the same legal parcel, or parcels, within the City. The indoor cultivation of marijuana has potential adverse effects to the structural integrity of the building in which the cultivation activity takes place, including installation of unpermitted floor and roof vents, and issues caused by water and mold damage. In addition, the use of high wattage grow lights and excessive use of electricity increases the risk of fire which presents a danger to the building and its occupants. Based on the experiences of other cities, these negative effects on the public health, safety, and welfare are likely to occur, and continue to occur, in the City due to the establishment and operation of marijuana cultivation, processing and distribution activities. The actions taken by various Orange County cities to address these adverse impacts are summarized in a report prepared by the Association of California Cities — Orange County (ACC -OC). The report (Attachment C) includes information from fifteen (15) Orange County cities, six (6) of which have recently considered medical marijuana ordinances. Alternatives Should the Planning Commission wish to explore alternatives and recommend that the City Council approve an ordinance that allows and regulates the establishment and operation of marijuana cultivation, processing, delivery, and/or distribution activities rather than prohibits these activities, it is still recommended that the Planning Commission take action on the proposed ordinance at this time, because there is not sufficient time to meaningfully research or evaluate alternative approaches and adopt a regulatory ordinance that would become effective prior to the March 1, 2016, marijuana cultivation deadline under the MMSRA. Put simply, the City may lose its ability to ban, or even to regulate, marijuana cultivation within the City if the proposed ordinance is not adopted. Alternative regulatory approaches can be discussed at a future City Council study session, and if deemed appropriate, the Planning Commission and City Council can consider repealing the prohibition on marijuana activities and adopt a regulatory ordinance in the future. Adoption of the currently proposed ordinance protects the City's ability to regulate marijuana activities in the future, should the City choose to do so. ENVIRONMENTAL ANALYSIS The proposed Code Amendment is not subject to the California Environmental Quality Act (CEQA) pursuant to California Code of Regulations, Title 14, Chapter 3, Sections 15060 (c) (2) (the activity will not result in a direct or reasonably foreseeable indirect Planning Commission Report December 8, 2015 Code Amendment 2015-005 Page 5 physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. CITY ATTORNEY REVIEW The City Attorney has reviewed the content and form of Draft Ordinance No. 1466. Scott Reekstin Principal Planner Elizabeth A. Binsack Director of Community Development Attachments: A. White Paper on Marijuana Dispensaries B. Public Safety Issues Related to Medical Marijuana in Orange County C. ACC -OC Report on Cannabis Use & Cultivation Policies D. Planning Commission Resolution No. 4307 and Draft Ordinance No. 1466 ATTACHMENT A White Paper on Marijuana Dispensaries WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES O 2009 California Police Chiefs Assn. All Rights Reserved ACKNOWLEDGMENTS fie%:ond anv question, this White Paper is the product ofa major cooperative effi?l-t among �l,i tsci7t;itl l+ w of nunicrous law emForc:ement: �igencies and allies who tillare in coninlon the goal of bringing to light the erilltil1al memos attd attendant ocietal problenis pc;sed by marijuana dispensaries that until now ha\ c; leen too ollclr hidden in the• -,hadows. The cl ideal iiced for this project was first recoL_=nized by the California Police Chiefs As�-;ociatloii, which pelt its Miplementailott in the very capable hands ofCP( -':��s Fxccum:c 1)li ct it Lolic %i 1c iill, City ofModesto odesto Clticf of l'c,lice RoV "'asden, and C'it� �,f 11-1 Cerrito C'I7ief of Police Scott Kirkland to spearfrcad. lNlore that 0 people contributed to this project as members of C'PCA's Medlc:aI i\Iarijuana Dispensary Crime, Inipac.t Issues Task Force, which has been cnjo, ins= the hospitality of Sheriff John Mc:CTiimis at regular meetlr7�,,s held lit the �acrnlncnto Cotliltl Sh+mIfs Department's Ileadc}ttctrters Ottice c;N'er the past three years al -WI -it er•cn• three months. The ld]cas for the kN117ite Paper's componelik caller ti -cart this group, and the text is the ccrllal orat.i\ e effort of numerous l,c•rsons both on and oil t]]c task force. Spec IaI mention goes to [,'�i\ ersicle County District Attorney Rod Pacheco rind Riverside County Dcptit� District Attontey .la,�yuelliw .ki,:kson, who allowed their Office's tine White Paper on N'ledical MarijtlalwG l lisiory and Current (_`ontplicanons to be utilized as a partial guide., and granted I,crrrti.ss1011 to incltldi; 111ittcrial frl-)M th it e10Cttnl int. Vsca, attorneys \[artin :leaver and Richard }cllleti ofthe law firm of.Ioncs Sc Mayerarc tltautl:cd for },rcptuinti� til` pcnclittg legal clucslinrrs and answers on re[Qvant legal issues that appear at the end ole this White Paper. And, I thank recently retired San Berncn dine Coanty Sherif'I'Gary Penrod for initially assigning me to contl'ihllte to this itttportant work. idem ifying and th A-iI:.1 n ,. � ,, erg one ,� ho contributed in some way to this project would be well nigh impossible, since: c iic ,•_t_;l c,oi`c;haractcrs chane ed sonicxvhat over the vears. and some unknown individuals aka Itchr-d nteaniiiu-,Tally behind the scenes. Ultimately. developing a 6l hite Japer on r1lcr� r�'irrrir r 1-� : + c .4r ir.1.ti became a rite of pas, lwge Eor its creators as much as a writing project. At tin7es this dauliting, and sometimes umvieldy, multi-year project had many task force 111embers, including the White Paper's editor, wondering if a polished final product would ever really catch fruition. But at last it has! If any reader is enlightened and spurred to action to any degree hV the �,Vhitc Paper's tntportant and timely subject matter, all of the �\ ork that. event Into this colLborative protect will have been well worth the effort and tinic individuals who worked harmoniou.s1v to nwke it possible. Some of the other persons and agencies who contributed in a meaningful way to this group venture over the past three years, and deserve acknowledgment for their helpful input and support,. are: George Anderson, California Department of Justice Jacob Appe lsni i th. Office cif the California Attorney General John Avila, C.tli lbrrti.! N:Ircotics Officers Association Thebe Chu, Office of San Bernardino County Counsel Scott Collins. Loi Angeles County District Attorney's Office C'atliv Covnc.. Call [Ornia State. Sheriffs' Association Lorrac. Cali-. Frinity County Sheri [['s Dep.trtincnt Jim Denney. ('alifornia State Sheri 1'1's' Association Thomas De��vv, Calif'Ornla `Mate 11tti\ crsliv—Humboldt Police Department Dana FII1, io vski, Contra C(,sta Cottrlty 1)1ti1r10 _'L(101-110,-' S ()I'I'ice John Chines, California Department of.lu.stIce: 3111-cau of NLircctics EliI-orcen-lent Craig Ci andlach, Modesto Police Department John Flartan, Los Angeles County District .ltion-tcv's Office—Major Narcotics Division 2009 California Police Chiefs Assn. i All Rights Reserved Nate Johnson, California State University Police Mike Kanalakis, Monterey Comity Sheriffs Office Bob Kochly, Contra Costa County Office: of District Attorney Tommy LaNier, The National Marijuana Initiative, HIDTA. Carol Leveroni, California Peace Officers Association Kevin McCarthy, Los Angcles Police Departrncnt Randy Mendoza, Arcata Police Department Mike Nivens, California Highway Patrol Rick Oules, Office of the United States Attorney Mark Pazin, Merced County Sheriffs Department Michael ReLyan, El Cerrito Police Department Melissa Reisinger, California Police Chiefs Association Kimberly Rios, California Department of Justice, Conference Plannin- Unit. Kent Shaw, California Department of Justice/Bureau of Narcotics l�W'ot'CC a7ea1t Crystal srencer, California Department of Justice, Conference Planning Unit Sam Spiegel, Folsom Police Department Valerie Taylor, ONDCP Thomas Toiler, California District Attorneys Association Martin Vranicar, Jr., California District Attorneys Association April 22, 2009 Dennis Tilton, Editor 0 2009 California Police Chiefs Assn. If All Rights Reserved TABLE OF CONTENTS ACKNOWLEDGMENTS...................................................... i -ii WHITE PAPER ON MARIJUANA DISPENSARIES INTRODUCTION............................................................1 FEDERAL LAW ................................................. ............. 1-2 CALIFORNIA LAW ......................................... _................. 2-6 LAWS IN OTHER STATES.....................................................6 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES ................6-7 HOW EXISTING DISPENSARIES OPERATE......................................7-8 ADVERSE SECONDAI�Y EFFECTS OF MARIJUANA DISPENSARIES AND SIMILARLY OPERATING COOPERATIVES.................................8 ANCILLARY CRIMES ................................ . ........... • ............8-10 OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES..............................................................11 SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE .............. 11-14 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS ........ 14 POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES. 14-17 LIABILITY ISSUES...........................................................18-19 A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES...............19-30 PENDING LEGAL QUESTIONS.................................................31-39 CONCLUSIONS..............................................................40 ENDNOTES..................................................................41-44 NON -LEGAL REFERENCES....................................................45-49 Q 2009 California Police Chiefs Assn, Iii All Rights Reserved WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON ,VIARIJUANA DISPENSARIES EXECUTIVE SUMMARY INTRODUCTION Proposition 215, an initiative authorl7ing the Iilnited possession, cultivation, and use of marijuana by patients and their care providcl"s for cci'ta111 nleillcInal purposes reconimended by a physician without subjecting such persons to criminal puni�hnicht, was passed by C';Iliforllia r cltCrs in 1996. This was supplemented by the California State Legislature's enactment in 2003 of the Medical ,Marijuana Program Act (SB 420) that became effecti\-e in 2004. The langtalll_se of Proposition 15 was codified in California as the Compass IonLite Use Act. which added wctlon l 1 62.5 to the Glhfornia Health & Safetv Code. \loch later,. the language of Senatc Bill 420 hecanle tllc '�lCdical Marijuana Program Act (:NIMPA), aml Inas .:added tel the California Health & Safety Code as section 1 1362.7 et seq. Among other requircmcnts, it purports to direct all California counties to set 1_11) alld administer a voluntary 1&ntificatlon card system for medical marijuana users and their care,_,1 ers. Some counties have already complied with the niaildatory pro\ islons of the 1'l1'll''1. and others have ch,IllCncd provisions of -(ho Act or are ati aitillg outcomes of ether ec1t111tics' le -al challenges to it herore takInIg affrrnati�e. si ps to (_olltlw all of its dictates. A11c1. vvIth resl)eCt to marijuana dlspellsarics, the rcacholl of cs_fclnties and tnutlicipalities to these nascent businesses has bcc:ll decidedly mixed. Sonic have issued permits for 5nch enterprises. Others have refused to do so within their julisdictiolts. Still c}(hers have conditioned pCrlllittin41 tiLICII opCrltiolls on the condition that ihev not violate any st.iw or federal law, or hm, re\crSCd caurtic taftel- MItElik' Aloe lni such activltic wltlllll their Lleographic ll horder,� hN !III r limiting or rcltislnw, to tllclly anv ftlrthCr dl''pellsarlcs to open in their community. Tli;. 1l, lltt.e Papc1- explores these watter�+, the allparcllt Conflicts bem een federal and California la'.l.: ! d the s(()p:� of loth direct ind illdirc a advc r:;c. I1111Mc(s of Ill.11-1.1'uana dispensaries in loc:ll coil 1,uII!t!.:: 11 rcecanrlts ,several examples (IldI c:ollld he �mIli lated ell vv hat ,sortie f_,oN cr11111e111:,1 kIIIILlal,� allti 1:.l CIA f'orceillollt a.'eIl(:les halve :11I_e.ldy' instituted in their jurisdictions to linin ([1c proliferation ,II marlltlall'i alld to mitigate their neat I (: e oiitieq tiences. I xcept for i i iitcuu Ellin authori:fed rc,�circh 1)111`11(,ties" federal I 111-0 LI II Iht CQ11(R)lltc_i Suhstances .`, '! ibsoltodv prohil�i ; `:Iii :tsC. cat l:l lrijtl;llaa for �1C1ti' l,'�sll purpi�sC. and cl:lssifies it as a lmnncd Scl`edufe I drub:. It cannot lv{ ally prescribed els rntdicine bV ,i phvsl4lan. And, the 1 dCraI rep,I i kation supersedes anv st:) j C�(ulation, so thin ullcicr tcdcral I m C":rli[ornia 111tdical itMl:'ll0,L) i ':[ l!'!t's do not pro'v'lttL .I l,."!ail Cief-CIls4 i'Or CUIt1V:1t1I12 l)1' 1)0.",S SSI11 111a1"l]i1i11]a —eV�rl With I lalI sici,,l i l c )tnmendation for medical use. ?r)09 California Police Chiefs Assn. Iv All Rights Reserved CALIFORNIA LAW Although California law gencrally 1-r-ohibits the cultiv ition. pw�session, transportation, sale, or other transfer of marijuana from one person to another, since late 1996 ;inter passage: Of _?11 initiative (Proposition ry 15) later codltled as the Coil]passioniltc U! se ;\ct, it has provided :i I -1 iLd affirmative delc.nsc to criminal prosecution f{.,r those N\ -ho cultivate. leo, of LIS( llnlllc l „li, ,: rt:, ,•f marijuana for medicinal purposes as qualifi,cd patients with li physicians recorimendat i.<< r)i t!,�_ Ir designated primary' lrW`�1VL1' [)I' c4)i�1>�1'ative. \otwithst'Linding tht:sc limited exceptlo , it) criil,lir i;lr k,111paill hl V, California law is notably silent oil any such available defense for a storefront y', find California Attorrlc-,: General 1_dmurd G. 13rmvn, Jr. has recently issued guidelines th ii �_ic•I,erally tinct marijuana di .i cr :,ri ':, to be unprotected and illegal di -w -trafficking entcl-prises except in the rare instance thin .,�i,2 , On qualify as a true cooperative Linder California law. A prinZtiry caregiver 11111tit Consistently and r'<<tRl lrlt' assume responsibility for the housing, health. LSI- sat('ly of ail awhori/ed medical magi juallc: t! ;, atld nowllcre does California law mithoris.e cLlllivatin�,, or providing marijuana—rnedicLit or non-medical—tin- profit. California's Medical Marijuana Program Act (Senate Bill 420) provides fllrthCF `._' Lild hill S f0F mandated county programs for the: issuance of identification cards to atlthorir.ed nledical mar ivana users on a vols-intary basis, for i;lc chief pen -pose of giving them a means of ccrtificlttion to shove law enforcement t, Fficers if sric h ;-c =--sans arc investigated for an offense involving marijuana. This system i=..'lli-rwrltly under chafleiwc Icy the ('OLIMICS of San Bernardino and San Diego and Sheriff Gary Pi 11 od. b(2nding,, a decision 011 revie«' 1)v the l.'.S. Supreme Court, as is Call lorn al s ri4,ht to perniii lim I,_, 2111 tisc of nlarijuarla in light of federal law that totally prollihit, any personal cull i %,ltitlr I'!0wsession, sale, transportation, or use of this substance whwltsoe� <<-r, whether for medical or cion -medical purposes. PROBLEMS POSED BY MARIJUANA DISPENSARIES Marijuana dispensaries are commonly large 111oney-making enterprises that will sell marijuana to most Anyone who produces a physician's �� ritten recon-imondation for its medical use. These rcclimmendations can be had by paying unscl-Lipulalls physicians a IQc Lind claiming to have most :In% 11111:1dy. even headaches. While the dispelis-&es will claim (l) recti ive on 1\ donations, no 111,1riju tntl will change h ltltls without ane ci1:i11 Lc to nionev. These operations have been tied to organized criminal gangs, foster large grow operations, and are often multi -million -dollar profit centers. Because they are repositoric:, of v.11u.lbfe marijuana crops and large a11i0Ll11ts of cash. several operators of dispemsaries have hccil :11 ticked and murdered by armed robber:, hath at their storefronts and homes, and such places have been 1 -CLI llarly burglarized. Drug dealin }, sales to minors, loiterim-,, hea\,,, �'el-dcle :Biel foot traffic in reCail :lrcll,. increased iic,Pse_ and rohberies of custonlers just OLltside dispensaries arc also common �lmilhi'\ l?y'prollucts of their operations, To repel store invasions. lircarms are ofmi kept on harm inside dispensaries. and Firearms are used to hold uta their proprietors. The. -,0 dispensaries are either linked to largo mat-ijuana 21 -CM UperRltions lir encourage home "rows llv Niving maripu:ina to dispense. And, just as destructive fires aiid unhealthful mold in residential rleiL�hhorhcods ars: l: ken the result of large iii(lo )r home grows to supply dlsp,eilsarles. 11-ioney 1a1111dcring, ako naturally results fi,onl dl'+pensaIies' likely tinlawful operations. 0 2009 California Police Chiefs Assn. v All Rights Reserved LOCAL GOVERNMENTAL RESPONSES 1_ocal 2overnineutal hodles can imposo a mor itorium on the licensing c1I" ML11-1j11.11la _li',I)kms _rtes N llile investIL'a in+u, this i, uc. i::an I)Lin this tyle of aclivity bec::tuse it violates federal law; c:111 kr',e zoning to control the disl)c:r- iIon A disl)cnsarics and the attendant problems that accclnll)iiny thele in uivxii11ted areas; and can condition their ol)erution on not tit+lilting any federal or state lnw, which is akin to h),uining them, since their tlriniary actil itics wlII always violate federal law as it now exists --- and almost surely California law as wc11. LIABILITY While highly wililkely, local puhlic offlcials, includillu) c_oulltV stllieiti:isors andcity CElurlcil members, coulee potentialN he char -ed and prosecuted for ,tidin-, and ahcttlng crtllllnal acts hV-RItI101-171MI and licensing nlarlivana dislicnsaries if'they do not clut11if1• as-coojperatives- under California law, �vhieh would be a rare occurrctice. Civil liability could also result. ENFORCEMENT OF MARIJUANA LAWS While the Drug Enfon:,1,1-;14i1t Administratkt i, ilas been ver,, tcii,,in raidilil l large-scale marijuana dispensaries in Califon 7!,; M the 1ct ±l l�<1,t, and arresm .:ltl ! in , ll,,wy, Ivincipals under federal law ill selec. wt : 1 , ;. lf,e i1e , U.S. Attorney Ger ,r,d I is 1 I Acer, Jr.. Ilas very recently announced a rllaf, i iari` i' f f _'il _ i'al l)tlsition to the e11fi l ' 'it7 i i t i t'deral dru,' law,, with respect to 111arijttana dispcns,li ic,. 1, i. 1,.; (Or prosecution onk,' _iisl-,e.nsarles that ire <xposeii LIS fronts f)r drug tr iitii 1;i1 + . It rerllalrls to be seen \�Ilat standurdti and definitions «ill tie used to determine what indicia will constitritc a chug trafficking operation suitable to trigger investigation and enforcement udder the new tcchnll adnlinistration. Some counties, like la%\ erlfon:ement aoenc:ies in the County of San Diego and County of RC1','.'i',tt�s'. have been aggressive 111 coil fronting and prosecuting the operators of marijuanti dispe11sJ i12'� 1 -i._lcr state law_ Likewise, certain cities incl counties have resisted granting marl.juaritt business licenses, have denied appIleations, or have imposed moratoria on such ewt rt,l- too, the future is uncertain, and permissible ltaal action with respect to marijuana di4le• ii .;!4 is°, i1, y depend on future court decisions not vet handed down. Largely because the niaioritu of their citizens have been sympathetic and projected a favorable ittiltltie l0wnrd medical inLirijuana patlent:s. and have been tolerant ofthe cultiv;ltion and u.;` of nlurijuailal. ether local ptlhlic oiticials in California clues and counties, esl78cinlly in Northern ("n1ifOrni:l, hale tnkell a -h,wds off' attitude with respect to proseculing ill'.il'ijli2ina d1,l)ellsary ()[M'atc,rs or attc-tupting to close down such operations. But, because of the lilc safety hazards caused by ensuing fires that ha\ c clltcn erupted in resultant home grow cll)erations. and the violent acts that have" often shadowed ditipensaries, some ait tildes, have changed tinct a le\\ political ��Iitities have reversed course Aker ll it'IIlLo prevlonSly 11CCnSed dist?iii,.,uws and ;wthurized lthcral [)ermisslble nniotlnts A ni-,irlluana fOr posscssron fly nwdilcA Ti lI'i7ll;illil 17.ltrklllt4 ltl tliell jlrrl,illetl )n lllese have most often turned out to be yolt1 fir. adults G\ Ifo are not sick; tut all, but hae v secured a phy�,icl7ui's written recoinnlendafor i01' tl7tlrijtlaiia utie hV yIrnply paying the required fee denianded l'Or this docitwout without even first Iffider2.0111,11 a l: hN sisal eyanlini:illoll. Too often "rrlcdical niarijuati 1" I1as l C01 ust'd as a smolkcscre�!n IOr those 1.1111) walll to 1c-L1l11.c Ii, :1;1�; plot -It off it, and storefront disc lls�irics' established as con er I'Or selliiw sell 111CL,:11 Suhl ,tallco i1 a return. 9) 2009 California Police Chiefs Assn. A All Rights Reserved WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION Editor: Dennis Tilton, M.A.Ed., M.A.Lit., M.C.J., J.D. Adjunct Professor of Criminal Justice, Political Science, & Public Administration, Upper Iowa University Sheriff's Legal Counsel (Retired), San Berriarclino County Sheriff s Department INTRODUCTION In November of 1996, Calf l'ornia voters passed Proposition 215. Tlic initiativc sct out €o make mari_juantk .ivailable to peopic: \', ith certain illnesses- The. initintivc was 1ater stippletncwed by the 11 1 :�laoijtianaProgram Act. Across the state. cOunties and niurtie:Ipalities have varied in their resptln;es to rt[edical marijuana. Some have all owed businesses to open and provide medical marijuana. Others ha\ e tl]sa]Iowed all such esui'P ishinents within their borders. Several once issued business licenses allowing inedical marijuana Sl.;[ -Cs k, operate! but lit) longer do so. This paper discusses the legality of both medical Marl jtl"I1)'I al i.] the businesst.s that niake it avitIIable, and more spcciiicaliv, the. problems associated with medical marijuana and rnariJu3na disperisurics. tinder whtltever nanie they' operatc_ FEDERAL LAW federal law clearly and unetloi vocally states that .:!l marijuana-rcInted activities are llle�:al. Consccltiently.. till people on,,a-ed in such activiti�°ti aro stlbjec.t to federal proticcttti011. The United States Supreme Court has ruled that this federal r:°�:,ttlatlon superseileti ;}l7y state's rettilation of marijuana —even Cali forn Li's. (c";on.-ales v. Rai, h ( 1005) 125 S.C'(. 2195 215.) "The Supremacy Clause unartzbiguoualy provide.~ that if there is any conflict betweclt iC&I'al laiv end .state. lim, federal law shall pre: ail." (Goo: ales v. R aich. ills' a-) I-ven more rcct mt.ly, the 0 Circuit Courtof Appeals found that Lycra: is no fundamental right tender the United States Constitution to even use medical marijuana. (Rraich v. Gonzales (9th Cir. 2007) 500 F.3d 850, 866.) In Gonzales v. Raich, the High Court declared that, despite- the attenipts of several states to partially legalize marijuana, it cotttilitie; to be wholly ille't:rl wince it i:, classified :15 a Schedule 1 druu under federal law. As such. tlicre are no exceptions to its illegality. (21 8121(c). w41(a)(1 ).) r the pi it i. Iltil t',,' yeairs- there liana been several attemptsto h;i\ e marl]ti'.ina ivclLitis1llic l to a til (lel Ill ,c _' Mlle which would permit medtctil uso of the X11 t _;- .\Il of these auoinpl-� have failed. ':' 4 r!'1?_ ir..'.' t'. !iilir'12 (`005)125S.0.21�i5, tit �. i l lt, kl k!'Ce Catt gOt"tI lttoll of tll:trl]Uana as tt1 :tuiGal �; 7llir_ ,t ki•:ti lolls to curve otic, anv le,y:ilk rcLoi,ni,�cd exc`ption regarding the drug. Marijuana, in any fbrm, is neither valid nor legal. Clearly the Unitcd States Supreme Court is the highest court in the land. it; ,-Icci,ions are final and binding tipon all lower ccwrt.�- The Court invoked the United States Supremacy Ciause and the C ortinicrcc C'Ilitise in reacltin,- its decision. The Supremacy Clause declares that Lill laws made in pursuance of the. Constitution ;hall be the "supreme law of the land" and shall be legally superior to tiny conflieting provislon I,f-:i s(a(c: constitution or law.' The Commerce Clause states that "the 0 2009 California Police Chiefs assn. 1 All Rights Reserved Congress shall have power to re"Lilaic COmm ercc with I'«rei ii :Mations, and among the several States, and with the Indian Tribes." CieinZales i•. Raic°h addressed the concerns of two California itldividuals oi-m, iii,2 and usint, i-narijtialla uncles- C�ditartiia`s medical marijuana statute. The Court CNIA1111ed that under the (ontroilcd Suhst uiccs Act mariju.tna 1,,,,a Schedule 1 drug and is sti id tly tcgtilated.} ``Schedule I tlru,�, are categorized as such btcause of their High potential for abt.)Se, lack of any accepted medical use, and. absence of any accepted safety for fisc in medically superviscdl tF-catmerlt..,' (21 USC sec. 812(b)(1).) The Court ruled that the Coirimerce Clause is applicable to CalifOrnia aurin idkials growing and uhtaining marijuana for their own personal, medical use. Under the Supremacy Clause, the federal re nidation of marijuana, pursuant to the Conimerce Clause. supersedes any st..itc's rc4rulati011, including California's. The Court found that the: C"alifornia did not pi-twide any federal defense if a person is brought into federal court for cultivatingear possessing margua ia.I.. Accordingly, there is no federal exception for the growth, cultivation, use or possession of marijuana and all such activity reinziins i11cLF,11.5 Cahl'omia's Compassionate Lfse ;pct of 1396 and Medical Marijuana Program Act of -2004 do not create an e,xccption to this federal law. All marijuana activity is absolutely illegal and sullject to federal regulation and prtis�2cution. This notwithstanding, on March 19, 2009, U.S. Attorney General Eric I lolder, Jr. arowuncd:d thkit tinder the new Oboma Administration the U.S. D,2parttnent of Justice plans to target for I)rdncd:utidM 0111v tl7nsc 11MI-11-uana dispensaries that use nicllical marijuana dispensing as a front for dealers of ille g.1] drugs-" CALIFORNIA LAW Generally, the possession, cultivation, possession for sale, transportation. distribution, furnishing, and giving w,-av of marl-Ituma is uni'V0111 under California state statutory law. (`titre Cal. Health & Safety Code secs. 11 157-1 130.) But, on Nlovember 5, 1990. California voters adopted Proposition 215, an initiative statute: authorizin, the medical use of mari1LMna.7 The ininati\-e added Call-tonil.'i Health and Safety code section 113r1?.5, which allows "seriously ill Californians the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate arida has hee11 recommended by a phr.,ician ...."' The codified section is knowti as the Compassionate iJse Act of 1995.9 Add iti()nalle. tic State Legis laturc Massed Sd nate 13111 4?0 in 2003. It became the MedicrtI Marijuana Pro -,rain Act ,ind took eCfcct on January 1, 2004."' I lit act e�:paildcd the dd finitions of "patient" and "primary cart: t!i�er- and created guide:lines for identification cards.'-' It defined the amount of marijuana that -patient;, Crud "primary care,,ivers" wain possetis. It also created a limited affirmative defense to criminal prosecution for qualifying individuals that colld:cti�cly gather to cultivate medical marijuana, a1 �\vII as to the crimes of marijuana possession. possession for slilc- transportation, sale, furnishiw-,. cultivation. ands nlainionance of plac�ey 14�r titd�i";1t�rc- use, or distrihi-ttlon of imirijuana for a person who dualities as a "patient," a "primLiry circ-ivor "tar as a mcnihor ol',i Ie, -rally recogiii cd-coopura(ike," as those terms .ire dcfincd id ilhin the statutory :�chcnie. tics cruel ss. ihcre i ttt) 11ro� isid!ti in .ink of these. I'm s tli:lt lothorizes or protects the establishnit:nt of a "dispensary" or other storclront marijuana distribution operation. Despite their illegality in the federal context, the medical marijuana laws in California are specific. The st.ittites craft mm,ow attirmam L, da6iscs 1701. 17,1rticular individuals with respect to enumerated imu-I' iiia activity. All conduct, and people i`llL,,yIng in 1t, that falls outside of the statutes' pl'iramcters remains illegal under California Inn. Relatively few individuals will be able to assert the .if I -nlative defense in the statute. To use it a Denson must be a "qualified patient," "primary carc«ivcr," or a member of a "cooperative." Once they arc charged with a crime, if a porsdm can prove an applicable legal status, they arc entitled to ,assert this statutory defense. (0 2009 California Police Chiefs Assn, 2 All Rights Reserved l-llrnlcr California Attorney General Bill Lockyer has also . ptlken about medical marijuana, and ,irIctly construed California law relilting to it. llis Office i,,uCd a bulletin to California law clilorcernent t:t<.Tencies on lune 9. 1005- The of ice expresscd the opinion that Gon-:ales v. Raich did not address tic � alidity of the Cali statutes and, thcrelilre. lead no effect on California law. The office ads isi d IaNv enforcement to 1143, han,,:c their operatin- procedures, Attorney General Lockyer made the re conhtncndation that Ileltbei- arrest nor prosecute "individuals within the legal scope of C'alifomia's Conipa,,:-,k31Ae l.ise Act." V -�� the current California Attorney General, Edmund G. Brown, Jr., has issued gwJclines concerning rile llanCllit g of is lees' rk:lating to California's medical marijuana km.ilii_l marijuana dispensaries. 17110 +"LL1deIMC!, ON MUCK tclughcr on storefront dispensar1es---gc11CI_ally IindIng thein to be unprotected, IIle al drug-traftickirlg enterprises if they do not fall within the narrow Legal & ; i 11 i t i l f n of a "cooperative" -than on the possession and use of marijll.in.i upon the re'clanlmendaticw of"t physicilill. When California's medic ll niari'Mana laws are strictly construed, it appear that the dc'cisirin Ili Gonzales r, Rmc h does affe°et Calpfornia law. However, pt'M id(cd th rt J'ederal 1.1 1 c1cic 1111L IUL'L1111)t California 1:1't'< ill this iirea. it does appear that the California statutes offer sonhe legal prosection to "indivicltiai5 itliili the leg.il _Collie of" the nl_ts- The Iihed1,_-aI niarijuana I "I Nv s ,peak to patIe[its, primary careuivers, and true collectives. i lc,.' pcopic arc lnentioned in the statutes, and, if their conduct comports to tilt: law, they Ishii' hale some sni(' lc al protection for specified li)nrl.juana activity. Conversely, all mariju,ln.i cs(ablishment, thlit tall Outside tilt letter and spirit of the: statutes, including dispensaries and .-,t, arc t'l-t )lit f.ic ll ides, a .., not legal, Thc's establishments have no protection. Neither the lOrmer California Attorne t 1, ieral's opinion nor the current Califorliia Atirornev General', guidelines present a contrary icw. `vithe111t specif e,illy tici<ftcssErt�f i7}aituana dispcw,'arics, Atiorney Mineral Brown,l.lw Sff'r alis lic,iL[l:L°s.!ttnr 7 'r,lcr,rl If, defend the Codified ;IVledic°LIl M'311]LILIMl Prour.inl Act against court c' 1'1ll '1i s, ,inn to ai ll lalice the p ositioll 1,11.1t tic st It:_'s regtil.rtion pronlulg,ated to enforce the prop i,,.wn, of ti -I, codified CUtllplt.w:iol',,l[,: L c.' :'e.:! I I'roposinon 215), including .1 statewide dai.ibase and Bounty identification CILIRt sv,)tvj n,fOr marijllr;11;1 pat Icin ts authorized by their plivs1c:ialls M L1sc tilarijuana, are all valid. 1. Conduct Cal Health :Incl Satcts! Cncfe sections 1 l 1C,__1.76_5 and l 1 6=.775 &- ,crlhc the conduct ror v, hien [lie affirmat I v e cicl-clhse is a\ allable. It n pirscm epIialItics as a ` "pa Ilent,'" "p rim.lrr Carc;iver," or i, a member of a Ic,,.rllti lccc},i]if.°Li "cooper i v _- lie fill- she liar an.ifl-t-m.6ve.. dc['cns` rte pos,c: sing a dcfiued ,.unwint of marjuana. Viidc-r Clic suiiuteti no Ilion: than eight oullc.,: rel. dried nwrijuana can be po,ses,cd. Additionally, eithcr six th1.UMV ()I- t�� Qk e immature: plEJI11L: !11,-11' l,c I; . pe)stit°�,i' 1. It LI person cl:linl, pai1cnt or primary care,+,1vc1' stLit ll,, .and possesses nioie ti1:111 I ills ,i 111 1a, 11 Ofniarijnana, lac l:?i' slit pan he prosecuted for drug posscss ion. The qualifying inifi� i+-I(IL Il: 1 .11,o cultil:rte, plant, hath est, dry, and or proL:cs,,; hill, ljtl,iM1, but only W11110 ~till stria tl lL IIlic permuted aniount of the dru The st.iIwe inav 1iko provide a Iiinited aff!rmative l l _ I]` i' i .l i' ;)lls.tittitiln� t11;1I-110ana for sale, (l"Lill,portill�o it, gi011 r. 1t :111"ly. 111.i1tilt1lIlllii� a mal'11nMiii u,t°. 1:;1co�� in fly ri-o ic_1i11" a s )LIce Wbore rnarijuana can be acct•ssud, aria L rc nine, it narcotic However, for anyone who cannot lay claim to the appropriate status under the statutes, all instances of niarijuana po�scssion. cultivation, planting, harvesting, drying, processing, possession for the purpo,c s of s lies. coulplcicd safe,, giving away, administration, transportation, maintaining of 111.1r11kialla houses, knowingly pro\ poling ,i ,:pace for marijuana activity, and creating a narcotic nuisance continue to be illsg ll LIR&F Call forma law. ©12009 California Police Chiefs Assn. 3 All nights Reserved 2. Patients and Cardholders A dispensary obviously is not a patient or cardholder. A " qualificcl p,ltic lit" i_; ,ori iricliviclual with a physician's recommendation that indicates niarijtrina wlII henefit the treatment ()f a qualifying illness. (Cal. H&S Code secs. 11_�[�?.5[b,l(l }(,11 unci 1 13()?.7(1).1 Qualified illnesses include cancer, anorexia, AIDS, chronic pain, ,pasticity, E^lat!conia, arthritis, min -aline, or am, riih r illness lOr which marjuana provides re/Ic/ ' -k I1llYsic1a7l'6 1-ecOltllllcndation that indicates medical ni iril'uwia will benefit the treatment ol- all ilhicss is i-cyuiNd betOrc tl person can claire to be a medical marijuana patient. Accordingly, such proof is also necessary hetbre a medical inarijuana affirimitivc dcfense can be claimed. A "person with i,', identification card" mc.uls gill inklik ideal who is a qualilitd 1lsiticnt who has applied for and I lv od a valid iJelltitiCOO ] C11 Fd issued by the State Fkpai-tmcnt of 1 Iecilth Services. (C;,1. ` i.' Code secs. 11362.7(. c) and 11362.7(g).) 3. Primary Caregivers The only person or entity cllitliorleied to receive compensation for services provided to patients and cardholders is a pritmirV careciver. (Cal. H&S Code sec. I I362.77(c).) However, nothing in the law authorizes any individual or group to cultivate or distribtltc inari juana for profit. (Cal. H&S Code sec. 11 362.765(a),) It is iniportant to note that it is almost impossible for a storefront marijuana business to gain true pritilzlrr caregiver status. 1=3usincsSes that call thcroselr eti `'cooperativcs," but function like storefront disptiisaries, suff`er this salnc tate. InPcoplc i. 11olic'r. the court was very clear that 111e defendant had to prove he was a primary earegivcr ill order to raise the 1 -nodical marijuana aftirmative defense. Mr. Mower w,u prosecuted for supplvinSg two people \� ith mariitiana. He claimed he 11'as their priin,.iry caregiver under the medical nlal'l ut lna statutes. This clam --s Nu.ired hint to prove ho "consistently had assumed responsibility for either ones housing, iiu j't;l. or safety" kcfore hL could assert the defense. 19 (Emphasis added.) l _ k,:v io l : i11g a primary ciregi er- is not simply that marijuana is provided I'c r .l lryaliellt's health; li,!_•; ii r the health must be cinlsistent-. ii illii5t be independent of merely l?mviding marijuail.i bar a quali lied person, anti such a llrltlltii'\ c1ii-c`•?i,tr-patient relationship must begin be ore or contemporaneostsla 1 ltll the time nl-£issuniptloll 0i o'csponsibillty for assisting the indit]Clual with marijuana. (PeopIc i-- :tIc me h i 200(, ) 45 CnlAth 2' 1- " - i ;Nny relatir7tlship a storefront marijuana business has with a p:illent is imich more 1i1.c°1; l} . iransitory than and to he w -,oily lacking in providing for a patient's health needs beyond just supplying flim or her with marijuana. A "primary caregiver" is an indi\ iditaI or facility that has "cousi.siently assumed responsibility for the housing, health, or safety of a patient" ovcr tithe. (Cal- I I&S' Code sec. 11.362.5(c1-) "Consistency" is the key to nlettlilg this tletlnition. A pat1cnt ctin oIect to patronize uiv disperis"iry that he or she chooses. The lancet can visit different dispensaries on. a single day or L111v stihscclutllt day. The statutory definition includes ;onlc wllnl,:s. hctilth care iLicilitic,,. residential dire: lite ilitics. and hospices. But, in light of the holding hi v- . lame 11- :, pr a. to qualify FIs a prig oltlry caregiver, more aid to a person's health niusi occur bevolid merely dispensin_, tllarijuana Io .i Lm cil customer. Additionally. if more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. And, iii most circumstances the primary c areim ��r insist lit at Icast 18 years of age. @ 2009 California Police Chiefs Assn. 4 All Rights Reserved The courts have found that the act of si nina a piece ut' 1,a11cr LlC0arir1:' that someone is a primary caregiver cries not necessarily make that person one. (Sec People ex ivl Lungren v. Peron (1997) 59 Cal.App. nth 1383, 1.390: "One maintaining a source of marliLlana supply- from \vhieh all members of the public k-lualifiied as permitted medicinal users may or M,,iy fila discretionarily elect to make purchas:•s, does not thereby become the patty `who has consistently r-lssuined responsibility for the Housing, health, or safety' of that purchaser as section 11362.5(e) requires.") The California Legislature had the opportunity to legalize the existence of dispensaries \� 11er sct0n;� forth what types of facilities could quality as ` priniary caregivers." Those included in the hs -t clearly show the LLz l ltulc y intent to restrict the definition to one involving a significant and long -tel -111 ctlrnniitment to the patient'�� health, safety, and xvcltilre. The only facilities which the 1_;:1islatt1re al -1111 1-17Cd tel serve as "primary care oivc•rs" arc clinic.,,. health care facilities. vesidentiit] care facilities, Home hcnNi :1t^e:ncies, and lios11ices which actually provide nle(lical care nr stillportive services to yualitied 1laticnts. W jl. H&S Code sec. l Any business that cannot prove that its relationship >viih illc I)atient 1lieets these requirements is not a primary carc,_Jvcr. Functionally, the business is a drlt�!, dealer and is subject to prosecution as such. 4. Cooperatives and Collectives According to the Ca li i. I�, : ;A 1;ori ,(,\ GW lt'l::i1-. recently issued (7iii-delines.Jin- the Set -it) -rlt- ao d Non - Diversion is i, II r tNI+ 1 f !:` r •'•1 1,' loo .i 1i'r i!,, r r r I .; ' unless they meet stri11uent requirements, �l1sl1cnsaric:, .II.,,o cannot reasonably clai<<i 1.0 I!v Ck'Operatives or col leetive`. IIl lvissIn4g. the Medical N`1ar1)tlalla 1'1-oL,11111 Act. the l...L`jltil ltllrt.'..);t;. Oht, in [tart. to enhance [lie :tett ti'ti of'pattents and arer,ivers to medical r,larijualta throtl h collective, cuolI cnitive cultic,,iiion pro�ran1' . (Perph, t C r-ficcanif (?t705) 1321 C al,Apl)Ath 747, 881.) The Act adduct sectir.,ri 1 1'162_775, which l)1-ovides that "Patients and caregivers �\ ho associate within the State oC (':?li ('Qr .i in order- collectively or Cooperatively is cultivate marijuana for medical purpos,,ti. ;iialt not ;:Flel e. on the bads of that fact be ubj<°i t to state crimen it sclnetic:,ns tier the crimes of mill lWiina pc)titi ';,:;lc,ll, 1 ,4 _' .sit, l for sale, transportation, sale, furnishinL,_,- cultivation, and maintenance ofphices for stur:tue, use, or distribution of marijuana. How ex er, there is no authoriz,ition for <in\. individual o (Yroup to cultivate or disfribute marija wn for prol-it. (.Cal. H&S C'odc. ,cc. 11 ()?.77(,1t)-) If dispensary is only a storet'ront distribution operntloll aped to the �,elteral 1lubltc, and there is no indication that it has been involved with growi.n" or cultivrltiniz marijuana for the benefit of mernbGrs as a non-profit entetllrise, it will not qualify as a cooperatic c to exempt it ti-otri criminal penalties colder California's marijuana laws. Further, the common dictionai-N cieiitiition of "collectives" is t!i:ii ilia are organizations jointly mMindi_'Cd bV 010;e using its tllc:ilities oi-.scn'ices. Lc,::illy i, ,.ouzel cooperatlVes Fcncl,tdly p�lssc�.s lilt tollvwirit, letlttlrc s: c0lltr01 Lmd ovvnci,ship of l;l,:il?icini1)c-iN substantially c qual, 111cillhCrti Ire limited to those who will avail themselves of ill", st r i:°es 1111-1)IL 11ed by the: ,is,;ociation: transfer of ownership interests is 1-�rohillited or limited; cut.i :.l ii i\ esttnent rtcciN. c.zither no return or a limited return; economic benefits pass to the members on a substantially eeluul hasis or on the htitiis of their pafrollage of the association: n1c111bcr are not personally liable for t.ihlig= oio ns of the asso;,, ii . n in. the absciice of a direct underlJking or authorization by them; death, haiikruptc y'. or withdr:iv 111 Of one or niche nionlbers does not terminate the association; and [the] serf ices rof the association ,Ire furnished prlm1 irily for the use of the members."20 Marijuana businesses, of any kind, Bio not 1lalrnlally meet this lc,,al definition. 2009 Califomia Police Chiefs Assn, 5 All Rights Reserved Based on the foregoing, it is clear that virtually all inarijuana dispensaries are not legal enterprises under either federal or state law. LAWS IN OTHER STATES Besides California, at the time elf pu6l ic',it ion of this �Vll itc Paper. thirteen other states have enacted medical marijuana laovs on their books, �k 1lcreby to sor, d i_,rce marijuana reconinlended or prescribed l) : ;-'iii 'Jig jtln to a spcejtied patient rnav be It IIS pos'scssed. Thew,-, states are Alaska, Colorado, 11.iw'lli, Mlune, \,larvlsitld, Michigan, i., !ll:r,i: , N(V v ala, N(nv Mexico. Orc�_,on, Rhode Island, Verni,,ni, and V ashill, ton. And, i,ts ti:..,;; :,n of inanj'uana under otle ounce has now been decriminalized in MatitiaCIIL]SettS.2 STOREFRONT 1NARIJUA_'ti.X DIS PEN SARI 1,.S .A.ND COOPERATIVES Ante the pl-issage ofthe Compassionate Use Act o 1090, many storef-ont 11IM-iluaIla businesses have opened in Callfillnia.`2 Soillk: are referred to as dl,,pcnsaries, and sortie as cooperatives; but it is how they operate that removes tllcnl from am. ullibrJa (tf legal protection. -1hese facilities oj)Qr,ate as if they tiro pharrnaeies. Most otter different types and of tnari}uana- `;dine offer baked- goods aitedgoods that contailt alari.ualla.`3 Monetary donations are collected from the patient or primary Laregjvcr NvhUl1 111a17ijuan0 OF 1604 items are received. The items are not technically sold since that would be a criminal vIolatIc,n of the statutes.`r Thcse facilities are able to operate because they apply for and receive bilsiness licenses from cities laid c0)1111hes, Federally, all existill ' Sti�WI'r;ailt IllarllUalia businesses .11 s;ubjectto search and closure since they violate federal law. -1 1 - i,- there cxistencc violates ilaw. Consequently, they ha\e no to exist or operate, and ar_ - .-, iy citio, and counties in Callfornia have no authority to sanction then. Similarly, in California til e is no apparent authority for the existence of these storefront marijuana btislltcs'ses, f lic i"alcdliL,l .'laruLiana Program Act of 2004 ,rllow s patiew.i .lnd p)wwlr col C% 't i'N tO rile 11nd cultivate marijuiina, and nl1 one clzc.Although i.'alif'ornia IIvalth and 5 11c°tv t od7 : section 11.362.775 oi`fers some state legal protection for trite collectivcs and e()operatjvcs. no parallel protection exists In tlle tit.itutc felt liny storefront business providing any narccitic. The common ehetlonary detinitlon of collectives Is ih�it t,ho} ane or�iaTllzatlollti Ioliltil' illail;l`?ed by those: tisltig its facilitjes or scr� ices. i_eg.11l re'c(,a,ni::ed cok)per.Itives geiieraily possoss -the folik.M1110 ]e,iiures cclrlfro)l :Ind knne•rtihip ol'cach n-ic'nlhcr is sui)stantl,dN equal; members erre him icd io thosC ll .; J i! th,Aiiselves of the services furnished ht the .lssociatiorl_ trail t'er (-d t'c 1' l or hi nited; ca�ifl capital 'r-'st17will 1 d C r:.'!1'C'.1' e llici, !!o 1,0110) 01' [l f71Jlr[i''I i'; r` IVII, CL011oir11L: I;;'Iii'iji;:-; ?;+:t;:, to the Ilmelttl?lrti ona sul)slantl;111v equal bas's or on the 1);ts's elf thclr 1, itronage of the ;issociallon: iiic111bers {ire not personally hahlc ft?r obligations of the ,lssociatioll M the absence of direct undertaking or authorization by them. eic:'ath- 1).inlcruptcy or of one or more members does not terrnrll'ae the association; and [the] smi c;i of the as,)ocKitlon ,tri: furnished primarily for the use of the: members•"'' Marijuana husjnesses, of any kind, do not meet this legal definition. Actual medical dispensaries are commonly defined as olficos ill hospitals. sc'riI ols. nr dicier institlitions I'l-0111 Which medical stlpph'cs, preparatielns. 'lrtd tre,ltmcllts fire li ;;;_,_l. I lo;pIlAs- hosplces, ht_,lne hc.ildi c:arc iigencics,.ind the like are tipecdlcally tllclllile'^.I lil Ili..' l illi primary e:,tre,ivers as long as the!; havo "ci�lisisicntiy' assumee re-spontii}?il1 - fcli i llI c i :;iii - !; '-lltll, or S� II ity" of a llatiL�nt,28 C'li�ark, it Is doubtful that anv of the storefront 11 l `fil il1<"i bu. :;ses currently @ 2009 California Police Chiefs Assn. 6 All Rights Reserved existing in California can claim that status. Consequently, they are not primary caregivers and are subject to prosecution under both California and federal laws. HOW EXISTING DISPENSARIES OPERATE Despite their clear illetgality.. some cities do have existing and operational dispens°Iri --ti. Assuming, arguendo, that they may operatr, it maybe helpful to review the mechanics of the b iiM-tis- The former Green Cross dispensary in :pan Francisco illustrates how a typical marijuana dispellsar-y works."9 A g(lard or eiiiploveL2 may check for medical marijuana cards or physician reconimc:ndations at the entrance. Niam asses of marijuana are ustiall.:ivailable. Although empioyces are neither pharmacist:, hair dacti,rs. sales clerks \rill probably snake recomineii(lations aboia what type of marijuana will hest relieve a given medical symptom. Baked gotuis containing mans ann ina, be available and sold, aldtoii«h there is usually no health pernlit to soil hakcd pods. The dispensary W ill L=ir c the ptltient a toren to sign deckmn- that the dispensary is their ` i�rilnary carefgir er'" (a proce.,s li"atls,ilt with legal difficulties). i lie patient thele selects the marijuana desired and is told \ hat tllc "Ctlntl-11-u01011" will be for the product. The California I leaith &', Safety Code spccifleally 1lrohlbits the sale ot'nlarijuana to a patient, so "contributions- are made to reimburse the dispensary fOr its tilllc and care in making "product" ar nii thee. However, if a calculation is made basad on tele :ir alhhlc� cv idence, it is clear that these "contributi(Ins" can easily add up to millions of dollars per year. That is a very iirge cash flow for a "non-1,i-cfit" oi--.',-4lllzatlorl deny Ing any participation in the retail s;alc t7t' narcotics. l3cti,r( its application Minn to tl,wt ii; business license was dcnied by the City of San Francisco, there were single dais that (-ircen ( toss stype �447,,00() worth ofmari tiarta. On Saturdays, Green Cross cotild sell nl:irljuann to it,rty-three patients Lire hour. The Milri.jualla sold at the dispensary was obtained frons -io ers who brow -flit it to tele store in backpacks, A Il edit-illl- sircd backpack would hold approximately $16,000 worth o l' marijuana. Green truss used rll<tllr different marijuana growers. It is clear that dispensaries arc t -t, t I ping as i l 1,4 s; , Ire business: s. r,.� ; t I valid cooperatives. Additionally, they claim to b.:il,• "pi illl.tr\ C, i , rs" ofpatieriis. This i t :pttrious claim. AS disctlwsed above, the term "pt it, ;t •,l, __ P.. 11i, ti ,, , i, ;,_ i fie meaning niid dlcf-med legal (Itialliications. A primary caregiver is ,ire irldi� 10ti:11 ,, h) ,21,N „1 ,i :t. ill,; tl,sunled iesponsibility I01- the 110LISin(T. health. or of a pliiiciit.. 1 , � A[1.10.-)!-', i.i '11i3ii i01-1 1111:1udos some chiliCS, 1lealtll care iacilities, residential G:ir, 11"Wllltlk.S, Wl d 11'1110i l;i;kil one patient dcs]`mates the same person :is the primary cart< 1•,, - ,lit indi-, id_t,.tk --Liss reside in the sarne city or county. to most circumstances the primary caregir or n) List be ai least f ,� years of age. It is almost impossible for a storefront marijuana business to gain true primary care+liver status. A business would have to prove that it "consistently had assumed respoilsIh lity lilt [:t patient's] housing, health, or safety."3' The key to being a prinlai-y caregiver is not simplN that marijuana is provided for a patient's health: the responsibility for the• patient's health must be consistent. As seen in the (ireen Cross example, a storefront marijtlifil t btisiness's relationship w-itlt a patient is infest likely tr:ill.;Itory. Ill order to provide a qualified pmts nt N4Idi Ell(filttltliltl., a sloretioilt marijuana hll;sirlctis nitlst ovale an instaiit --primary caregiver" rclatlonship (%Ith. hint. The �ci-y fact that the relatiousilil:l is iilst.tnt belies ariv consistency in their relationship alld tale rcquirewent that 1lotrtiialn. health. or safety is ("ollsistently piorlded. Courts havc fouled that a Imilent's pact of si_ilin�f a Miele ()i' paper declaring that sumeone is a primary caregiver does not nccessarlly make that llcrsoii onc. The a 2009 California Police Chiefs Assn. 7 All Rights Reserved consistent relationship demanded by the statute is mere fiction if it can be achieved betwe�:11 L111 individual and a business that functions like a narcotic retail store. ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILIARLY OPERATING COOPERATIVES Of great concern are the adverse secondary effects of these dispensaries and storefront. cooper4ltiv•eti. I-liey are maiiv. Besides flouting Icdumi iaw i ti:21i ,i;_ a l)rohibitc(l Schedule 1 dml g tinder the ('011ti-011ccd 5tthstanct.s Act, mat-01.lana dispensari;,'�- trict or catlsc nunicrous ancl11,try so�:itll problcm,, its hy'products i:ri th,.-it :.ilicration. The rlc! ,a ,lr, I I I , n thcsc are other criminal acts - ANCILLARY CRIMES A. ARMED ROBBERIES ANI) MURD is RS Throtwhout California, many violent crimes ha% c Preen committed that Cali he traced to the prollkLration of marijuana dispensaries.-I'iie,,e include anried robbel-ics alici liiiirders. For example, tlti Iar 1)ack as 2002, two home nci:ul)ants were shot in \VIIlits, Cahfornla in the course of a home- invtisioll R)bhcry tangctin- niudical niarijuaiw.. ' And,'Ll Serie:, Of RMI_ Llrinled robberies of marijuana dispensary in ` anw Barbara. C ditarnia occurred throll(di ."Vit utit 10, 2006, in \' 111ch thirty dollars and fifteen bagales tilled witli niartluana on display vv ere taken by fierce and r moved froni ti,c }i,_tI l„_s in the latest holdup. The ()vvncr Smit lie failed to report the first three rohheries because til irijuana is such a contra% rsial Issue,- 33 i.ly1 1 CilrtlM-N' 7i 2004, 111 MU(JOCIno County two niaskcd thu4LFti c()n]1111ttt'+.1 , Il[�ll1t i11L itiiQ,ll robhorv' I4' 14:,11 nieciical 11-,:ii:;ju�lila. 11iey lleld a knife to a thro.li.. ,_laid t:ho upi i-ic iot,L°1!1 1,, managed to ;til 'l .i :ll w it 11 laryc amounts Of 111:1111LIXia. Th v 1vere scuil caugh Ind '. tie Ut the 1ica receivcd a � ilLeni _, 4. ;':;i v years in state prison.'' ,•unci_ on :'etc i:..;t 19- 2005, 18-v L 1r-uId 1 }.'nlarco Lovv rev was .,I)oL Iii the stomach" and "bled to death” Al. l i_> Lisi111'i1t 1.1'1111 the bL14llless ler ivhell he and his friends attempted a takeover robbery of a store1i 411it marijuana business in the t its of'SniI Leandro, California, The owner fought back with the Ii':ro,L-d Home invaders, ;uld a Lin battle ensued. Demarco Lowery was hit by gunfire rind '-dumped 01.1ISIL1C illi:12 it1:`1 ' ,'ll V :11IIL Ilce Of Children's Hosp1taI Oak l.-nd" after the shootout.3$ lie did not stu, I� c. Near Haywriird. Cid t. on September 2, 2005, upirti lonvinp, a mE,MJLlantl rii lirllti try . L1 1'iatron of the CCA Cannabis 1ih had a gun put to his head as he vvas relieved of over x'50 worth of pot. Three weeks later, another break-in OCCLlrred at the Garden of Eden Cannabis Club in September of 2W "7 til 1l Iii - !, 1nov111 il'1-I':'::l'1 i1 Inarder OCCUrred on Ni?venihei 11), -loo—S. Apri \::i,nately six gun- and h -i i,_i,IIii, 0 :i tars broke into Les Cr: Ine's home in Laytonvil le, Cali is i 1,i,1 :vhile yelling, "This i r,lid." Les Craik. w'I10 owned t%vu str,rk: II-ont marijuana bustle :;;, `ti, 4"JS l.lt home and shot to Jomh. He iii !)Is Bead, arm, and abdoniicn.4' AMother man present at the time was hcaten w illi :l Irlseball bat. The ii-tui-dere.rs left the home after taking an unknown surn of U.S. currency and a stash of processed marijuana.'`' Then, on Ilnuary (), 20117, marijuana plant cultivator Rex Farrance was shot once in the chest and killed in his c!vvn home actor four masl.ed intruders broke in and demanded money. When the homeowner nui to facet a l ircarrn, he was dioi dead. The robbcns cscai)Qd with a small amount of b 2009 California Police Chiefs Assn. All Rights Reserved cash and handguns. Investigating officers counted 109 marijuana plants in v ai-lotts pleases of cultivation inside the house, along with two digital scales and just under 4 pounds of Cultivated marijuana. as More recent1v in Colorado, Ken 4 jornian, a former gubernatorial candl(kltc ',111(.1 dispenser of tnim-)Lkeno n hn 11tici hecn [11'e iotisiv robbed over twelve times at his honic. M Dem, er, was found i,ltrrdered by t).Unshot inside his hoinc. He was a prominent proponent of medical marijuana and the legalization of marijuana,41 B. BURGLARIES In ,lull : of ' I id 1 ) r r c3 burglarizing youths in Bellflower, California were caught iay th c honleov�ner t, , io the fruits of his indoor marijuana grow, he shot one who was ! liilliii?„ awe ,iy. and killed him.*' And, again in January of 2007, Claremont Councilman Corey [_ alaycay %vent on record calling marijuana dispensaries "crime magnets" after a burglary occtlrl-etl In Mit: in Claremont, California. -4 On July 17. 1-0061, the E1 Cerrito City Council voted to ban all such marijuana facilities. It did so after r(:,, ic�ving a niilett�en-paoc report that detailed a ri;e in crime near these storcfront dispensaries ill a tl �r cities. The crimes included robberies, aStiaGlltS. burglaries, muro_1,:rs, and attempted nitiralcrs.44 Even though 11wrhuana storeliont hosinesse's do not currently exist in the City of f,,Ilterey Park, California, it issued a moratorium on them after studying the issue in August of After allowing these establishments to r1p�r~etc within its borders, the C'it", of %Vest i lollvwood, California pastiecl :1 similar moratorium. The inoratorium \N as "pi,ompted by incidents of armed burglary at some: of the city's eight existing pot stores and complaints from neighbors about increased pedestrian and vehicle traffic and noise .. - "`". C. TRAFFIC, NOISE, AND DRUG DEALIN r Increased noise and pedestrian traffic, including nonresidents in pursuit ofmli lluana, ail,: (mi id area criminals in search of prey, are commonly encountered just outside marijuana �_lispe 1'11 _ti.` :I; o� c11 as drtl<<-Cel.11eLl c�llenses in the vicinity'—like resales -31 IJr(3�1LiCt �U51 i]17tlllllt'tl If„ !.1 ' tili^, f',�5� ni"Irlltlalia ccntcr.., ie!;ttlarly attract niat-1_J 111q growers. drug users, arit [I just purchased m�irIII imna outside (Iispensaries also regularly takes place, Rather than the "seriously ill," for whom medical marijuana was expressly interided.sii ,,per, -Ii healthy' vowing people frequenting dispcnsarics" irc -i 11111ch more Common si_)llt-'I I'Llticll+. recur -i sril,cd lav hitt enlf()r,_cnlent officers from dispensaries during r,lids in St111 L7ieacl C'otint-, ('.iliforri;.t I n i]eceniher of, 2001 `shown d that 72 percent of patients were hole i:+eii 17 amcl 40 years (_'Id ... ";fid ane idmitted marijuana tral'ficker, "The people I dcai c� ith arc the same I is dealing ith 12 years ago but now, because of Senate Bill 420, they are supposedly ] _pit. I c, -w totally see by vops are bummed."3 ' [Zeportedly, a sectinty 17ti.ird sold half a pound of nrinlltlana to an undercm cr officer just outside a dispensary in Morro 13av, 1. illti(?1I1Ia, Antt tele mere' pro. pence dispensaries ellcotfrage5fele<oai ilri4ers to pl,,mt. cultivate, find trLinsport Cl `I- i'la+ik M111 i;t!.-tilfl. In order to Supply aInd sell their crops to these StOt'Cfiolll operators in the thrix ie tiiiedic•il ij_i,iila dispensary market, ;n chat the iiational domestic marijuana yield has been estimaied to by j.L� IN Ilion dollars. of which a I _ . hiiliotl dollar sham: is California gro%% n.'� it is a big business. And, although the: operators of 4()rne �vlI� I!L'Iim that they oT1Iy 1I(X,e111 n1oliel:11-V e iliiributlons i"di the proLlLio, they 0 2009 Califomia Police Chiefs Assn. 9 All Rights Reserved dispense, and do not sell marijuana, a patron will not receive any marijuana until an amount of money acceptable to the dispensary has changed hands. D. ORGANIZED CRIME, MONEY LAUNDERING, AND FIREARMS VIOLATIONS Increasingly, reports have been surfacing -,ibout orgarriv.ed crimen irwolv erii€;trt in the: tlwner,;hip ,md operation of marijuana d sp?cnsaries. including Asian and ether crin1iiial street <gasii-,k and at lea t one member of the Ari nenian ll,rlitl. Th disilc[is Uri es or "llot cILIhti, "circ tdtcII used as t front 11 organized crime ,mp, to traffic in d! .s,2s Lend launder money, Unc SLIC11 galh-1 W170sc. territorV included San Frai)cisco and Oakl1ii,J. r_' ,li l yrnia reportedly ran a 111tiiti-million dollar business operating ten warchou,,,c:s in which � Irounts ofin.-injuana 1)lants were t,rown. " HQsidLs sciring; over 9,000 marijuana plants during sttrprlsc r;.i ' on this crit lni i1 �r1tc?prisc's 4tora,,rc 1".1cilitics, federal off ccrs Also confiscated three fireLiri ns,�" which seem to �,c5 h Illi. ir1 haled with medic•.,ll mi 1-I'lL U1,1 cciltiv,itlon and dispensaries. 59 Marijuana storefront businesses have allowed criminals to flourish in California. In the summer of 2007, the City of San Dic,;o cooperated xvith federal authorities and ,served search warrants on several marijuana disper"ary locations. 111 addition to marijuana, manv weapons tivcre reco�cercd, including a stol m hanciuun and 1111 N1-10 Llss,11.dt The rational Drug Intclli, crlcc (.'enter reports that 11ta1.i_jtiana grow crs are emplayirt L� ,ir111ed wards. tlsirlg explosive IN)A)V trap;, :ind lt7murdering pcoplc to shi4ld their crops. Street gangs of all national origins are Involved in transporting and distributing marijuana to meet the ever increasitlg demand lilr thr 1ll'Ll .`'I Active Asian gangs have included members of Vietnamese organized crime svncl.icates who have migrated From (7,mada to 11tty homes throughout the United States to rise Lis grow houses.r,2 Some or all of the processed harvest of marijuana plants nurtured in these homes then wind up at stonAl ont marijuana dispensaries o\+ rtcd and operated by these gangs. Storefront marijuana busimessc:s are: very c,nterprises that thrik e on ancillary grow operations. Besides fueling marijtiana disl)el[SM,te:;, some rnonet,Ary proceeds from the sale oChar` eatcd marijuana derived from plants LyoNvn inside houses Lire being u,;cd by organized crinie syndICLAICti til tilted other legitimate businesses for profit and the taLinderim, of money, and to conduct illegal hLIS11IC>+S nperatiorts like prostitution, extortion, and drug trafficking.63 Money from residential grow clt7ctRltinrxs is ,also soniefiniea treaded by criminal gang members for firearms, and used io buy drugs, llcrsomil %chicles. and additional houses for more grow operations, 64 and aIoil F i� ith the I illcorlle derived Crom large-scale organized crime -related marijuana production operations conies 65 s� idespread income tax e,, It 011. E. POISONINGS Another social problem somewhat unique to manJuana di-mpensaries is poisonings, both intentional and unintentional. On Atl<.Hust 10- 200,6, the Los Angeles Police Department rccv',,ed two such reports. One involved a sectlr ity Ltiard tr leo ate ,i piece. of cake extended to him from ,In operator of a marijuana clinic as a "t-,ik." aIILi soon ,liienvard felt di//v and disoriented."" The second incident concerned a UPS driver Nvho cxllcrienI ed sil,;il,I ),lpiorns alter accepting and eating a cookie given to him by anoperatorof a different marijtian,; '�1:I11L." © 2009 Califomia Police Chiefs Assn. 10 All Rights Reserved OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES Other adverse secondary iroj,sacto from the opr�ration of marijuana dispensaries include street dealers lurking ibout dispensaric; , t ; _r:i a iowc r t,l-icC fOr ill.` nji.inna to ar ivin(F patrons: marijuana smoking to publle Lind in front of LTi 1.I! `il IIl iI)._ I ;.si dtSl3t'il)) ales. loitering and mosances: acqutring manjualla and/or money 1,1' it,c-,iil', C7t r0bi-I-Ty of patron,, Loing to or leaving (lispcii.sai-lC s: an increase in burglaries at or ncar Lli $'L''`;ti l,_'4: a loss of trade for other coninierclal husinesses located near d1spensar1eti; the -,ale at ul i1lhcr illcgal drugs bcsidC:s 111W-I.J MIL). Lill Increase in traffic aecicleiils alid di -I\11107 Undci ihc. influence Arrests in which marijuana is implicated; and the failure of 111arijuana Lli:;1-„,-is; c,, operators to report robberies to police.68 SECONDARY ADVERSE IMPACTS IN THE COMNIUNITY AT LARGE A. UNJUSTIFIED AND FICTITIOUS PHYSICIAN RECOMMENDATIONS California's legal requirement under California Health and Safety Code section 11362.5 that a phy�ieian's recominrndation i; required fora piltient or cargn\ es- til passes, medical Marijuana has restlltcd in otheruiidetiirahle out::LIIIeS: tvhcilcs"llc issuance: oi'rcconinlcnclations by unscrupulous physlclans s4ekin- a tiaick luck, and the proliferation of foo -Led or Fictitious physician recommendations. Sorne doctors link up N ith a ni irijuana di -,i _rls it . and truce up tempor n -v residence in a local lintel roon, «ll<'rc they advertise their a1p arance it', :d1� ince, and pass chis ;,iedical mariJuun<i use to a life alt 'patients'. at "al -,-Lo ~i} apop "6” Othwr individuals just make up their own phony doctor rccorimrndationti,I0 which tdi e : 6cit7nl. if c -ver. sc i utini.7ed liv dispensary emploGccs tier authenticity. Undercover DL'A Li -k tots sportil „ 111lriili,.i!la recorrinienckitions «erc readily Lille to purchase marijutlna Iloin a clinic. f:l: too oi.1�::1. C itilornia',. Medical lnariju,inii 1'a is used as a smokescreen fOr healtli` pol users to get their desired drug, and for propric(015 ofn,uar.ilcialla dispensaries to make nioney ori then i, without suffering any legal rel�ct'ctl:sic�nti. On March 11, 2009, the Osteopathic Medical Board of Call fornia adopted rile proposed d,?J.s1011 revoking Dr. Alfonso Jimenez's Osteopathic Physicians ind Surgeon',,' C'crtiticatc and ordering Mill to pay 57.4.32331) in cost recovery. Dr. Jimenez operated rllrtltipie 11 -KIP LIMia clinics and advertised his ,�crvic cs cxtcn.tiI •ely on the: Internet. Based on infOrmaticnl obtained from raids on marl -Juana dispensaries in S.tn Diego, In May ol'20 0. the San Diego Police Dcpartmcnt ran (wo Lllidk:rco) er operations on Dr. Jimenez's clinic in '')all Ds go- In Jallilai'y of 2007, ;1 �ccond undl n,cover operatioll was conducted b� the Laguna Betcli l'olice Depal-ti-hent aj. Dr. Jimencr's clinic iii t; range County. Based on the resents of the undcrco� er oper,ltions. the Osteopathic Medical Board chlirged Dr. JImcne ILh ,,ro,s Ilc,gllgence anc.l II c d ile- IILFent. acts in the treatnient oftin .'rcJover operatives posing as patient.N. .lfter a six-day Iii lring, the 'AdtmnlmniLive Lav Judge (A 1..1 i iSsu��d her decision finding that Dr. Jimenez violated the stal ward of care by conullittin�, gross n : and repeated negli�oencc in care, treatment, and managemciit of patients when he, atria l _ o lies things, iss: ied inedical tllar ivana recommendations to the undcrcuver agents without n _i I I;i} acli,cluato 111c d1cal e::"IIII ln,itIOil S.. failed t0 �9:iln 1)r( per informed conseIlt_ and I III 'Cl tQ Coi-tUiL 11 i�;i ;iii', 1)1-ll11('II Cil]e ansfsor treating physicians or obtain and review li1'ie7r tnrdlcLd records bcfore ISSH111t; requested administrative agency reconsideration or petition for court review, the decision was to become effective April 24, 2009. B. PROLIFERATION OF GROW HOUSES IN RESIDENTIAL AREAS In recent years the proliferation of grow houses in residential neighborhoods has exploded. This phenomenon is country wide, and ranges from tilt purchase for purpose of marijuana Lgrow operations of small dwellings to "high priced McMfnlsions "'' Muslirooni-in, residellti.11 111az-ijttana grow operations have been detected in Cahfornia. CotinEctic1.11- Florida, C3eorLgia, New, lkimpshirc, North Carolina, Ohio, South Carolina, and Texas. 11l ?I)t}; alone, sLlch illegal operations `N ere ][elected and shut down by federal and wtalc Iaw enforceiricnt officials in 41 hoiiL es in C alii'i_II`iii I. 50 howes in Honda, and 11 homes in NQ°\% I Iampshire.'' Sint:c. Then, the [lumber of re-sJ lenccs discovci.CLi to he so itllPLIC (ed has increased exponential y . Part ol' tllis recent inflLix of illicit residential craw o11e1-"ltions is because the '*THC -rich 'B.C. bud' strain" of tlrtrijuanfl oI`iZ71mllly produced In Lrltisll. C0111111hia "can tie drown only in controlled indoor environimnts." and the C ii).-idian market is iww reportc°i.ily S"[Lu ated with the product of -competing Canadian-anL.ts " ofton PAsian In coinposition Or outlaw rnolorcvclegangs 111,c ilio l iclls Angels. 5 Typically. a gutted house can Bale[ L1boat 1,000 plants that will each yield almost half a pound of smokable marijuana; this collecm ely ticts about ",00 pounds of usable ][marijuana per harvest, with an average of three to four harvests per year-\Vitli a street value of `i;3,000 to $5,000 per pound" for high -potency marijuana, aid sLic'h 111111t11e lmrG gists, "a successful CFF() \V house can bring in between $4.5 million and $10 million a year ...." a The high potency of hydroponically grown marijuana can command a price as much as six times higher than comnicrcial grade marijuana. 71) C. LIFE SAFETY HAZARDS CREATED BY GROW HOUSES In 1-Iumboldt County, California, structure fires ca used by unsafe indoor marijuana grow operat1'()1" have become commonplace. The city of Arcata- vJiicli sports four manjuana clial7emis,aric,, ..:I the "lk- of a house fire in which a fan had fallen ov= r Lind i -„sited a lire: it had been turned into a grovr, [louse by its tenant. Per areata Police Chief Randy iNl1 mdosa, altered and make,,liifft "no code” electrical service connections and overloaded \w iros Used to operate high-powered Lut,mv ]iL,hts and fans are coinnion causes of the fires. Large InCIC.01' TIMI`IILlaliil t1r011 I1lL_T 01.7t'tat10nS Ca11 C1''atc SLICh \wcSS11'e. draws of electricity that PC_f&E power Ilett' transibi-nicrs are commonly blt wti. An li erapl I.50 y- squtsr;:-1:oot tract house• Used I`Or croWill1-' 11ma1-ijLlana Carl Lrenerate mo iality electrical bills from . i-[1i11t to $3-000 per month. 1:roiii ,ul orivIrraimentaI stand[ oHIt- the carbon 'rlotprint fro ri reetihou,;(' emissions created by larLw indoor mar-IJU-1 M L?ro''<L ()1)eralioll Slloulcl 11ajor ('islll'C'tn for e,• ,.°ry colYimullity In tcrillti oI ellmplw'111g with All, iioard \Ii- Q rk�gulatlons- t: 'h lI as od) 'r greenhclLINC "ZIS reduction pollcics. Typically. air vents are cut !! w itsois, winter seeps li110 iIrpeti1;L ll'nidows are blacked o. it.. [Idles are cut 1 I Ilam[[`,,, wiring 1 j!_11 v - !'i Cil, find c Icc1:11Cal Cir 'a,til; i! c]w rlt]aded to operate row Iiglits and oth eI` apparatus. Whc'I! lit+'`; start, thcy spread quiA-!,k The May 31, 20t1X cdilion k)I' die Lo,, _ hi.trchw Tunes reported, "LLm enforcement officiak estimate that as many as 1,000 of the 717,50() homes iii this I hirnboldt County conwitinity are being used to cultivate lminjuana, slashing into the housin'_= stock., spa -coding build in�,�-safety prohlollls and sowi l—) Iiei�lll�I�rfitic�rl discard." \'Ot tlrprisim-dy, iii this bastion ot-liberal flat possession rule', ihAt authorized the CL1ltiN:1t1rtill Of itis to 99 Irl ants for media in cl purpose_ rlOSs ,t1-L1Ch11'J1 tiles in the 1_ !-,1I11U!1it'!• Of Argot, llaxc heei1 ol"htt,.� as ociatc•d t�ith rntilijLlana cultiNatit! ' �.'!,ic i nfPolicc Ntt:llkkl.��. 1:!ritiod that tllc actual 1m unber W, mai, Anti grm� hori,, :s in Arcata II:1 I ecli tI1 tin Tclin r su}rje� t t i ;_11 1 i.t debtite. Mendosa added, "We know there are nutiicroilL� (louses lti almost ewers nei4ghboL1lood 111 Mid iirt,tind the city, which has been the source ofconsiant citizen complaints." I louse fires caused by 0 2009 California Police Chiefs Assn. 12 All Rights Reserved grower -installed nwkeshift k:lcctric;al wiring or tipped electrical fans are now endemic to Humboldt County. 81 011,2-f klendosa also Observed that since marijuana has an illicit ,treat v,tItil: of up fr� S 5,100 per pound, marijuana -row houses have been sw ceptil-)le to viol'-Ilt tC'nic'Cl lwnii: !m ;;i•.I,+li I-(, i01 :ries. Lame -Scale marijuana houses have removed significant of affordable !-.m!.�es lronn tllc° r-sidential rental inarkel. \Vhell property im hers discover their rentals are being �uoxv he reslckenccs al -C ollen left 1L 1th malar structural damage, \< lii_h includes air c.old" _.ut i !i,, rc}f. i ; and tlm1 rti. \\,iter Lkinlage to Boor -s and walls. and mold. TIIC' P i we 9, 2009 V(! i rt)In c: i the AC)i } 1" ;, rii1C".S Sl![]lt"� ai) uniil�IltlfleCl :�r�at'l man tend ng lllti lilcli?[,l ii„�: the man :l.liilledhc'ta11117akt ev(cry three wonths by selling marijuana grown in the bcch%))in of' his rented house.'2 Claii)1,, , !. ostensible me,.lical ilnarijuana ��ro�vitlg l�. pant to Calk '; ;ia, ,lcdicai marijuana laws arc ' adv.inced as a mostly falai shield III all ;iI1L_Tnjpi tc +.isilfl' such illicit operations. Neither is fire an unconllllnn ocetirrence dt L_I'M ]inose°s c1sewhere across the. nation. Another OCCllrrecl not 1or1(' a110 III 1101idtiy, L lOridaI,” l'c, C0111l)c]ttnd matters further, csCape rclutes for firefighters are: often obstructed by blocked v,-Indoxvs in grow houses. electric Nvinmt is tampered with to steal electricity, and some residences are even booby -trapped to discourage and I'cfrel Unwanted intruders. 84 D. INCREASED ORGANIZE t?, GANG ACTIVITIES Along v'lth Ill lrljuana dIS. )c!1��L f'I ti;1 Clic' Srow Opel-atil [?nti t[ LIPport them come nlcinbers of organized crit ninal gan-, and pr i Ii from diem. 1llcmbers of an ethnic Chinese Cli tlg -an- wcre disco%'cred to iiave operim:d _)0 indoor grow opk_r',,o,. ns In the San Francisco] Biiy area. chile CLIban-American crime orgalniz:!i.l,:,ns have becn fotl!l[l i�) Oe operatM2 grow houses in Florida and e.lsc:cc here in the South. A VictnLiinCS'0 dnig 01lc:ra1111L" 19 1 -11 -OW ]lnuties in Seattle and Pw,,et Sound, Washington." In July of ?CWN, over 55 Asian gang tnelnbers 4` c�re indicted for narcotics tral'tickML, in marijuana and ecstasy, includin..F nlcinbcr of the Hop Sing Gang that had been actively ourat:ino marijuana g7racc operations in Elk C1rc,ve alter else-llc.rc in the vicinity of S icrtlrnento, C i4lllUrlllil.A� E. EXPOSURE OF MINORS TO MARI.IUAN, L Minors who are expose[] to marijuana at dispensaries or TvsIdeIices cc here marijuana plants are growl;; may he subtly ilit'ltienci_ i to T-ceyard it as a greiierally Ici7al drug,ind inclined to sample it. In grow houses. children art_ :_ �;' .,, _ .1 w ,.ir.ingerotis fire and health conditions that are inherent in indoor grow operations._, Dispcnsarics also sell Imirijuatla to m1rors.98 F. IMPAIRED PUBLIC HEALTH Indoor mariju ir,., _ YWA operatiz F,,;; ti;Iiit a skutik-like odor, xand foster generally unhealthy conditions like allowli,, , 11 nil; .11 :Inc' l4Irtilizers to be placed in the open. an increased carbon dioxide lovel within the ._�noX hots {_..ln,-i - ccumulation of mold, Asa all of which are d.in fcr-ms 'to ,Illy children or adults who may be l \. iii , i:! il,. residence, 91 although inany grow houses are uninhabited. Q 2009 California Police Chiefs Assn. 13 All Rights Reserved G. LOSS OF BUSINESS TAX REVENUE Wben business suffers as a result of shoppers staying away on account of traffic, blight, crime, and the lindc-,InA)l lite of a particular business district known to be frequented by drug users and traffickers,. and ort-, ani :ed criini nal gang members, a city's tax revenues necessarily drop as a direct consequence. H. DECREASED QUALITY OF LIFE IN DETERIORATING NEIGHBORHOODS, BOTH BUSINESS AND RESIDENTIAL Marijuana dispensaries faring in the criminal clement and loiterers. which in tum scare off potential bus illes.s liatrons of nearby legitimate bus illesses, causing loss oaf revenues and deterioration of the affected hu,iness district. Like�,vlse, empty hor.11es used as grov,' hot,is(fs oimt noxious odors in residential nclghho ho t)Js. 1)r(ject irritating sounds A' w hirrill-t, fans, atid 1,ri)i11c to the cion of vehicles cotnint11 and �Oillg �It Ill I)OLIFs of tho day and night. Near harvest tlllli, riv-,ii -_,rowers anti other unill ited kmtcl-prislil cri111lt1als sornctimes invade <.�roxv houses to beat ` chp crews" to the site and rip off mature plants ready for harvesting. As a result, violence otlen erupts from confrontations in the affected residential neighborhood ,93 ULTIMATE CONCLUSIONS REG 1ff)Ii�,6' cri)`w FRSE SECONDARY EFFECTS On ll;llrinei, any utility to fried l r!l ''ti:r;'i j :;;l; -: ants in care giN ins, and convenience that marijtuziwl disllen,aries may appear to "1:.� C i'I tt i . Cr,,lrmou dy otPtweighed by a much darker reality tllM is iillnctuated by thw n i7'i:l:' .ikt1 'I';i` ;L't .till�i2l!' , .A l •t iff created fly' their presence Itl communities, recol.Inted here, These have even proveIl ti? Ili L1I1ti;itC f it their awn proprietors, POSSIBLE LOCAL GOV EWN MENTAL RESPONSES TO MARIJUANA DISPENSARIES A. IMPOSED MORATORIA BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While in the proecss f)t 1I11 e,t!`o;ltt1lg and I'i tietkI`e11II1! til is1,sUe of 1kCCIlyIIId`r rn llijuana dispcns fries, tks an interim measure city councils niny enact moratoria that expressly prohibit thc: presence. of Iliariivann dispensaries, whether Iar medic<11 lkse or otherwise. ,lnd Ilrohihitint, the sale of' nwrijuailzl III ;ill`' 101-111 011 sLIc11 11rLllliSes. anywhere N\ ithin the incorporated boundaries of the cite until a spec.itiect cf.ite. l3Lfore such a 11101`MOl"1L1I11'w it ktc tIi cxlliratiorl, the moratorium m,iy (hell either be cxtclidcd or rl city ordinance cnac'tecl tonlple(ch prollihiting or otherwise, restricting the establishment ;file( ol)eratioll k,l' wLirijtlana dispells;iries. and the sale of all nlarijLkana products on such prenuses. CoIint} supervisors can do the same tG'itll respect to mnrijlltlnti dlSpellsarles stJLI'-Ill to hlr etiLihlished cN ithin the unincorporated areas of a cotlilty. Appro.\ irnia1Qly �ti C';ilifornia chic,, incfuditl=.; the cities c,i' Antioch, Brenttivood, Oakley, Pinole. and Plca Elia I ill], and 0 counties, including Contra Costa C'otint\ . have en-ictcd moratoria banning the c%istence ()Cmarijuana dispensaries. In a novel approach, the t.'itG of \rc�ita Issued a nioratorium on �rlly new cl1, 1pcnsaries in the downtown area, based on no agriCLIltliral activities being permitted to occur therc.g4 a 2009 California Police Chiefs Assn. 14 All Rights Reserved B. IMPOSED BANS BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While the Compassionate Use Act of l 91)o permits seriously ill persons to legally marijuana for medical purposes (lpori It phi �ician's rec(,ninlendation, it is silent on lnarijuan;. dispensaries and does not expressly autlIoi,II.e the s ale of marijuana to patients or primary c:il = ;i'.:.1l) Neither Proposition 215 nor Senate Bill 420 s1-wcitJ,_,.a11v authori/cs the dispensing of mariivalla III 1-liiv form from a storefront biislnes' , And, no stato statule presoll(iv etists that Cx17rCs:�IV permits the licensing or operation ol' iiiarijtian�t dispensaries.",Consequently, approxitllat-d ,' S9 Californki cities, incltldlnL,, the Cities of t- )OCO I'` I �Wd Sian Pablo, and 21 cotlntlo's have prohihitCd 1144-IJ-1.41na dispensarlCti within theirrespecti"o While approxinlatcly 24 cities, including the City of ylai tinc:�, and 7 counties has e allowed such dispcnsaries to c11l hw inetis \k ithin their jurisd Ictl Oils. 1,;%cn the coniplctc prohibition of marijuana chspciisarie:s v� ithin o -,Ix crt ioc:ale cannot be round to run afoul of current. Cahliirnia law \vlth 1-espectto pet-mitted Ilse of ;�li:Uuan.,l t{)r illedicinal purposes. so long as the gro. \ in,_, or use of" ni4., ' _ -:.l inarijuama h\ tl city or C Unity resident In conformance with state law is not proscribed.9r, ' In November of ?004. the City of Br9nipton in Ontario, Canada passed The Grow House Abatement By-lu . lNhich authorized the itv cc"LillciI t,., appoint inspectors and ideal police t. fleas to inspect suspected ai,ow houses and reili dro meters, llnyalc wiring, bo nhy traps. and any ', Iolatlon of the 1 -ire Code or Building Code, tnR_l C ;iw\ c i;i;e�.Iwercd ccnn(rollcd substnnces and ancillan, equipment do.sl ,rnell tot row and niintikICIIlrC sucl] titli titatiCC�, at the Io t.)Ived holncow lid's cost. 97 And, after state lColslatcn's becilrlle appallcd ;It t:hc pruhileraticin of l ii -prof -it rc,,,I lential :grow operations, the State of Florida passed the M iriJuana Groxv Hots -,e Eradication act ( house. Bill 173') in June t4f 2008. The governor signed this bill into tai , owning a hou,,e [Or the purpose of cultivIatim,-Y. pacUi_)ilig, and distributing rnarijuami "I third-dcgree felony: groxviii , 25 or inorc 11KIIipuana pLints it sccorld- degrel felony; and grote in, -25 or ilit,re 3ilai'iJI-MIM prints in ,.I home with children present" a lirst- det-'ree I'clon_y." It has bcoll estimated that approxin-latek 1 7/,�410 marijti.lna grow operations wycre act -IN e in laic _007. To ax old hecowin�g �i cl>impinL s�ruLiltd for ort;anill.d crime syndicates who decide to tllol C their IIle, til {,rC]4V operatloils 10 :i MON receptl`i legisl itll e en111,011n1ent, California and other st':itc'>, 1night be It ise to quickly follali tient 1l fill sini lar bills, 1o1 it may already be ll�ippelllll�f. C. IMPOSED RESTRICTED ZONING AND OTHER R EGITLATiON BY ELECTED LOCAL GOVERNMENTAL OFFICIALS If so inclined. rather than completely prohibit marijuana dispensaries, through their zoning power city and county of iicials have the authonly to restrict o\\ incl, ic, Iocl.i?c and operate so-called "medic,,tl ni iriivana dI�poiisaries" ill proscribed gGo,,raphicaI it rel ; �1 Ci . car 111 1tcd unincorporated areas elf a corint\!. and require them to meet prescri[)od licensing rcgwroments before beII14 allii\r ed to do so_ This is iI risky t�oiirse of action though for N', oiild-lit dispen,, ry operators, and pe:rllap.s [a�� inakors too, since fe2de.ral awhoritiLs do not recognize any Iawful. riAllt for the sale, purchase, or use of marijuana lilr nle.dical rise or otherwitie am where in the United titates, inc ludin.'. California. Other cities and couni1cs ht i c included as a condition of liecnsure 101, clispensaiies th:lt the operator shall "violate no federal or ,,tate law." which puts any applicant iri ;1 ` i. arch -2 2"" sitnati011 since to federal authorities any possession or sale of marijuana is automaticiiIk,- a violation of'(cdoraI law. Still other municipalities have recently enacted or revised comprehensive ordinl, races that address it variety of nicdical marijuana issues. For example, according to the City of Arcat�l Con -i Ill Lill iIll 0 2009 California Police Chiefs Assn. 15 All Rights Reserved Development. Department in Arcata, Ca i i + s i a, ; � i r._..1,i q0 tse to constant citizen complaints from what had become an extremely serious coni ii-iI i i t,v pr(.) h k. ,, -1 h c areata City Council revised its Land Use Standards for t I ::dical Marijuana Culti % :.tion and Di `i,,_• i i-,; n tr. Iii December of 2008, City of Arcata Ord 1nance 11 X" was enacted. It includes the 1ollov il; -< i,,? i s "Categories: I. Personal Use 2. Cooperatives or Collectives Medical Marijuana for Personal Use: An individual qualified patient sliail be allowed to cultivate medical marijuana within his/her private residence in conformance with the following standards: 1. Cultivation area shall iiot exceed 51I selut[rc feet and not exceed ten feet (10') in height. a. Cult]N ation lighten, shall not exceed 1200 �t efts; b. Gas prodtiets (CO2, butane, etc.) fl -Or mcdicil niarijuana ctihivation or processing is prohibited. C. Cultivation and sale is prohibited as a Home Occupation (sale or dispensing is prohihitcei). d. Qualified patient shall reside in the residence where the medical marijuana cultivation occurs; e. Qualified patient shall not participate in medical marijuana cultivation in any other residence. f. Residence kitchen. hathrooms, and primary bedrooms shall not be used primarily for medical marPitiai,a cue tivation; g. Culti � ation area shall comply with the California Building Code § 1203.4 Natural Ventilation or § 402.3 Mechanical Ventilation. h. The medical marijuana cultivation area shall not adversely affect the health or safety of the ncarhv residents. 2. City Zoning :Administrator my approve up to I00 square foot: a. DocEiniemation showing why the 50 square Foot cultivation area standard is not feasible. b. Include N\ ritten perinission from the property owner. C. City Building inusl nslicet frir California Building Code and Fire Code. d. At a minimum, the iredi al n -t rijuana cultivation area shall be constructed with a I - hour firewall assembly of green lioard. C. Cultivation of medical marijuaria for personal use is limited to detached sineli family residential properties, or the medical marijuana ctiltiv ttion Brea sha1.1 be limited to a garage or self-contained outside accessory building that is secured, locked, and folly enclosed. Medical Marijuana Cooperatives or Collectives. 1. Allowed with a Conditic .i it Use Permit. 2. In Commercial, in(Ii:MI i ia1, and Public Faci11ty Zoning Districts, 3. Business form [i?, ,i he a cooperative or collective. 4. Existing cooperati \,, or colleen\ e ~hall be in full compliance within one year. S. Total number of medical marijuana cooperatives or collectives is limited to four and ultimately two, 6. Special consideration if locatcei within a. A W i'Oot radius l'roni any existing residential zoimig district, b. NN'ithin 500 feet of anv other medical marl -Juana Cooperative or eoilecti�r. O 2009 California Police Chiefs Assn. 16 All Rights Reserved C. Within 504 feet from any existing public park, playground, day care, or school. 7. Source of medical marijuana. a. Permitted Cooperative or Collective. On-site medical marijuana cultivation shall not exceed twenty-five (25) percent of the total floor area, but in no cage !r,:ater than 1,500 square feet and not exceed ten feet (10') in height. b. Off --site Permitted Cultivation. Use Permit .application and be updated ,Innoally. c. Qualified Patients. Medical marijuana acquired tFom an individual +iahhod patient shall received no monctarti remittance, and the qualified patient is a member of the medical marijuana cooperative or collective- Collective or cooperative may credit its members for medical inarijtiana provided to the collective nr cooperat1N c, whicii they may allocate to other members. S. Operations Manual at a minimum include the following informan011: a. Staff screening process including appropriate background checks. b. Operating hours. C. Site, floor pl:rr ol-thefacility. d. Security Watod on the: premises, including but not limited to, lighting, alarms. anu automatic Lm enforcvn?ent notification. C. Scrcenin.-, registration i id vali&t on process for qualified patients. f. Qualified patient rec+,r 1� and retention procedures. g. Proccss for trackln_, ni-ImJtl„na quantities and inventory Controls including 011 -Site ctrltivanon, pr ocessm- .:ndl or medical marijuana products received from outside sources. h. Measures taken to minimize or offset from the cultivation or processing of medical marijYran.I. L Chetiiicals "Iorcd. tised ,Incl any oftltlent into the City's wastewater and/or storm water system. 9. Operating Standards. a. ",40 0P en r r{ medical marijuana more t!lan twice a day. b. Disp.t._ i individual qu,dified patient \vho has a valid, verified physician's The medics/ rnari,jticima cooperative or collective shall verify that the phy:1i:-.an's recommendation IS ctlrrerlt oriel �;Ilid. C. Display the client miles ,Ind or retLIul.Itions at each building entrance. d. Smoking, ingesting or culitiulr1in� medical marijuana on the premises or in the vicinity is prohibited. e. Persons under the age of eighteen (1w) are precludcd from entering the premises. f, No nn -site display of marijuana plants. g. i✓ J kli,,triht tion of lig c plants, starts and clones on through Use Permit. h. Permit the on-sIte display or sale of marijuana paraphernalia only through the Use Permit. i, kkiin(alii all necessary permits, and pay all appropriate taxes. Medical marijuana cooperatives or collet i\es shall also provide inNoiccs to vendors to ensure vendor's tax liability responsibility: j. Submit an "Annual Ped'onnance Peti,iew Report" which is intended to identify effectiveness of the appro�e.d Use Permit, Operations Manual, and Conditions of Approval, as well as the identification and implementation of additional procedures as deemed necessary. k. Monitoring review fees shall accompany the "Annual Performance Review Report" for costs associated with the review and approval of the report. 1.0, Permit Revocation or Modification. A use permit may be revoked or modified for non- compliance with one or more of the items described above_" ® 2009 California Police Chiefs Assn. 17 All Rights Reserved LIABILITY ISSUES With respect to issuing business licenscs to Inariju<In t stoucfront facilities a eery real issue has arisen. counties and cities are arouahly aiding criminal violation, cif federal law. Such actions clearly put the counties permitting these ill Fool [)rCCal-i()tts legal positions. Aiding and abetting a c.rillle occ.,Urs when someorlc coiilmits a triple. the l)crson aiding that crime knew the criminal offender intended to conimit the cri -li,.. and the person aiding the crime intended to assist the criminal offender in the commission (.)fihI- (-rilre,. The 1(:gal (lc•Iinition of aiding and abetting could lie ; pI- Ik:q I i o � tr!r,. ios and cities allowing marijuana facilities to i}l)cn. A county that liar been lnfornicd .lint,iIt the <<:,+?_:rt:'.w v. Ra ch decision knows that all marijt ana activity is federally illegal. FurthermcirC', succi c ?iui i,v: know that individuals involved ill the. Mari j Uana business are subject to federal prosecution. When ti i i individual in California cultivates, possesses, transports, or uses marijuana, he or she is committing a federal crime. A county issuing a business license to a marijuana facility knows that the people there are committing federal crimes. The ctytlnty also knows that those involved in providing and obtaining marijuana are intentionally , iolatin-, i'cdcral law. This very problem is why some counties are re -thinking the presence of marijuana t1ucilities iii their communities. There is a valid fear of beirl T prosecuted for aiding and abetting federal dr-ti;,triches. Presently, two coniines haN c expressed concern that California's mcclical marijualra statutes have placed them in such a precarious legal position. Because of the serious criminal ranliticatiolls hivolved in issuirl, business lielrtnits and allowing storefront lnarijtrana businesses to olieriltc within [heir N)r&,rs, S,an Dither and San Bon -la lino Counties filed consolidated lawsuits auainst the state 5cel�irie to prey cut the State of California from enforcing its medical marijuana stawtes which poiewially stihi'ec:i them to criminal liability, and sgtrrlrcly assertirl x tllctt California medical illclI'ljL11111t1 taws aro plt�[lll)Se.il by fecle.ral law to ihls area. After California's llledicai marl jia na laws were all upheld at the trial lc� el, California's Fourth District Cotin of Appeal foillui that t11e State of C nIifornia could mandate countic to adopt and entilrce a \ calutliary medical marijuana ider,tih(i ation card system, and th.i a} l)c ll ite COL11-t b pas:scd the 1)rccmptian issue by iindinii Char San Diego and San Bernardino Counties lacked stindin- to raise this challcn,,e to C alifOrma'; medical marijuana laws. Following this st,ite 1ppell,lte court decision. irlclel-kmderlt petitions l'Or review filed by the two counties were both denied by the California Supreme C otirt. Largely because of the quandary that county and city peace officers in California face in the field when Confronted with "lllc'ued mcdlcal mariitiana with respect to enforcemellt of the tri.[l criminal prohibition tic all 111.11IJI-1 .nt1. and ';I;.ltc c vc]—ilption lroill Criminal I)Cllaltles 1M. f,Icdir_al inlarnju-Ltn,i ll�ers, and c;lregi� yrs, petitions 11)t ,1 kv rit of ccrtlontrt t+ "re thc'll sepaI'illciv 1 Hk. u h,/ the two cotllltics .;cc'kin- review of this Llecislon bl the L'I';',...'cl States '7tlii' _'llle Court 111 the ei7l-i`•,'yi dated CIsel) Of (()WIl i ol'S. 111 1 )w -o, �_ + !%liiY .a' 11 BEi`rlc!i l' Pciif od, cis Sherif) (: v the Cotenty {if San Bernardino 1. ,ion f.11c;(-,o rVi)110: �r::liC r-llld S alldrl / Shc"1l rv, 1)iret too o lie t [Ardrjlil iia Dc'fu)-imcla OJ'Heallh ['i i'f('r.N !0 ,+lr'r' 01fiiol't.11paciil, C t.App. Casks No. D-5-.", 13.) The II1��h C OUrt ll'Lis requested the State. of California and other lw,,restcd p�lrttes to file respoiisive briefs to the O'vo counties' �irld Sheriff F'k nitrod's writ pctitiow, he fibre it decides �\ hcthcr to ,ct.:lnt Or deny rcview of these constllidaied cases. The r,-mioners wotild tiled he entitled io file a rel)ly to aliv filch response. It is alitic IPa(td &L-1. r i , [. l; Oil le: t i7tirt \g ill lormally grant oi, deny rer icw• ol'thcsc• consolidated cases in lute ,alt -ii i r or erlrly 1,1cif 2009 Q 2009 California Police Chiefs Assn. 18 All Rights Reserved I I I -,I 1 i;,v ref Garden Grave v. Sitperior Court (2007) 157 Ca1.App.4th 155, although the I�_ Ic at prc�. i� ;)ti(it) issue was not squarely raised or ,iddressed in its decision, CaIIl rnia's Fourth District Court of Appeal found that public policy coiisideratlons allowed a city standing to challenge : <,(ate trial court's order directing the return by a city police department of ;cued medical marijuana to a person determined to be a patient. After the C0L11_t-0rdcr(�ci return of this federally banned �tlhslanc(c 4t';iti (.1plleld at the intermediate appellaT.c level, al)d iiot accented for re\lc\v by the (-",d i tnrllia tiu11renle Court, a petition for a writ of c;eitioi ayl was filed by the City of Garden Grove to the f_! -S. SL1111`et1lc Court to consider and reverse the state -,appellate Cour( ciccislon. But, that pct1tW11 �\,is al,o denied. liotaever, the case ofPe,)ple v. Kell 'v (.x'008) 163 Col.App.41h t-'-1---in whjch a suLces:,ful challenge was made to California', ' ,kdical Niari11IL11i.t C'ro'lr;1111's ti1a.xinit:u11 21110t1ilt, of marijuana and marijuana plants permitted to lac po: sessccl by nicclic,ii i1._;i-ijuana patients (Cat. I I&S Code sec. 1.1362.77 et seq.), which himtti were found at the court of ap poal lei cl to be ik 111i flit Le al authority for the state to impose—has becii itccgri:_c] for re,, iew by talc California Supreme C OLIrt on the issue of whether this law evas all hill rrYpci ,til _;t:liiicni to Y Prc.Yi�cr;itirrl 215's Cc MINISS101late Use Act of 1996,. A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES 1. MARIJUANA DISPENSARIES -THE SAN DIEGO STORY After the passage of Proposition 215 in 1996, law enforcenient agency representatives in :pan Dlegcy, California met many times to formulate a comprehensive stratk:11v of how to deal with case, that may arise out of the ate\� law. In the end it was decided to haridk the m.itt(:rs on a care-by-c;tse basis. In addition, questionnaires were developed for patient, cared' er, and physician interviews. At times patients without sales Mclicia but large _,rc)ws \-� ere i1itcl- iewed and their medical records revie«!ed in making issuinti! decisions. In other case~ where salc s indicia and amounts stll11)0 Cd a findin5u, of sales the cases were pursued. At most, two casts a month were brought for felony prosecution_ In 2003, San Diego County's n wly elected District Attorney publicly supported Prop. 215 and wanted her newly created narcotics Division to des] ,:nn procedures to ensure patients were not caught up in case prosecutions. As many already know, tx�v enforcement officers rarely arrest or seek prosecution of a patient who nierel \ po,,sesses personal use amounts. Rather, it is those who linve sales amounts in product or cultivation whc.r arc prosecuted. For the next two years the District Attorney's Off ice proceeded .is it had before. But, ou the cnses "Here the patient had too nliirly plants or product but not much e1sc- to show sales ---1111 DD `Is as5i+,ned to review the. case \Wtrld interview and lislen to input to respect (110 ptltient's :tiid the D Vpo7 ition. `;odic cascs wcrQ rejected and others issued but the case disposition was otter generous and rQ11CL1ed a "Sill no more„ view. All of this changed after the passage of SB 420. The activists and pro -marijuana folks ,started to push the envelope. Dispensaries began to open for husincss and physicians started to advertise thcil' availability to issue recommendations for the purchase of rticdicitl ni'Lirijuana, By spinal`..? oaf _00)5, th<. first couple of ctispensulies opened up—but ihcy ware discrcic. Cay that Stemmer, 7 to 10 i_lispcnsarics were open for husincs:s, acid 111Ly wccrc sc(lina rrlainju in 1 openly. In fc%:t, the local oohcc department was doin- a ~smell bL1V'1L'1'flli proiect and one of i(s tar'„rcl dealers said lie was out ofpot but would go gc.A some from the dispcilsar� W sell to the undercov(-r officer (LIC); lie did. It was the proli l'cration of`dkpcnsaries and ancillary crinws that prompted the San Diego Police Chief ( rbc C'hicf \v,i.7 a Prop- 21. sul-)porter who sparred i'~ ith the Fresno DEA. in his prior job over this issue) to authurizc his ul`ficcrs to a list DEA. @ 2009 California Police Chiefs Assn. 19 All Rights Reserved The Investigation San Diego DEA and its local task force (NTF) sought assistance from the DA's Office as well as the U.S. Attorney's Office. Though empathetic about being willing to assist, the DA's Office was not sure how prosecutions would fare under the provisions of SB 420. The U.S. Attorney had the easier road but was noncommittal. After several meetings it was decided that law enforcement would work on using undercover operatives (UCs) to buy, so law enforcernent could see exactly what was happening in the dispensaries. The Int ,•stigatlon was initl.iwd iii C iC Ct tiili�r , ; 't O� after NTF received numerous citizen coil] l 1t,111i_. r� Eriill, 111.x` crime alid r i ii_: a scxiraictl v, itll "medical marijuana lspensartes.' e City of San Diego �W,;[t ,aw an inch -.we in crime related to the marijuana dispensaries. By then lipproximately 21''i 11�.,tu(1:A111 [?i had opened and Eyc:re operating in San Diego County, and ins esti_)ations on 15 of the ;- •i{ .; ;,:tries were initiated. Dtirin-, the investivation, NTF learned th It ;ill oCfhe business o\�ners wcrc involved in the transportation and distribution ofhir-c quLirtiti(:, of narijuana, I iari Liana derivLal yeti. and rnari_ivana food products. I addition, severed owner,, .', .'re iliiol%cd in the cultivation ot`lrit,h 4grade marijuana. The business o\ iters were making signifie ;int protits trona the stale of these products and not properly repoirting [Itis income. Undercover Task Force 0fticer.s (11'0',) and SDPB, l rcty l i , ._ �. `'r uti l i::ed to ptu cltase marijuana and marijuana food products from thest' %Utilnesses. In Dt'�'�. -ihr id 2005, thirteen state s�_'dl_L_ h N5 "rlTtlllts Wore executed at husinesses al id rcs I dt!11 ces of set .rag t .. ntrs. Teti c7 ::}.ltltt:tanal flls � 11 -lfi7 setllch warrants anti l i l7llsellt searLll h ere erccttted tile: ,,; ]]e dal.. Appi-o.xiiiititely 977 n),Iiiitt i],;i 171�!!]ts tri7tI1 5L'Vela lnd[.)c)I' IalarrjLltll]a rl"c)� '�, tif? 1. i� ��11[]` 1' isiti ��1 !Slari]Li 111 i ll]Ll iii irlJuana fwd proCIllCIS, (1110 LLin, ailil over $58,(}00 IJI-S. currency were ti I ? '_I. Mere 1 ero til\ .ltrest�, ill tde during the e.l`ccution starch warrants 1'0r VMOL15 including; outstanding \N nrrants. possession of marijuana for sale. possession of psilocyl7in i))ushrooms. obstructing a police officer, 1111d Wi:al)ons vlolatlon.ti. l-luwc v(r, lllc owners and cicrks here rot arrested orprosecutcd at [Ills fi[f]e -just those who showed up ;yith weapons or prodttc.t 10 sell. Given the fact most owners could claini mistake of la} N as to selling (though not a legitimate defense, it could be a jury nullification dcfel]sc ) the DA's Office decided not to file C,Ises at tli�it tithe. It was hoped that the dispensaries would fecl San Diego w, -is hostile groiind .Incl they � ould do bosirless elsewhere. UnfOrtunately this was not the. case. Uyer the next fc\v Irionths soven of the prcviously targeted dispensaries opened, as well as a slew of others. Clearly prosecutions would be necessary. To gear up for the re -opened and new dispensaries prosecutors reviewed the evidence and sought a second round of UC buys wherein the UC \ ould be hug inu, for themselves and they W c)tilel have a second UU pr,2 ckmt at the time acting as UC I's careci%cr %' ho also would buy. This %gas dcsi�ncd to show the dispensary �� as not the caregiver. ThcrQ is M) alrthoi lIV Iti the law for org-linizations to ai t as prin "rr carci\ ors. Caregivers mast be individuals �k lio ciirc for .t ntarY uanLi patient. A primary carexTi\cr is defiiwd by proposition 215, as codilied in liL�S Cock section 1 I ',02.5{c). nti, -Tor the purposes of this cction,'primary c ireLiver' means the indiyidtlal desi,.>natcd by the per;on cxcniptcd tindcl" tl]is scclioll who has consislenlly ,Isstintcd respotisibility for the IWLNillg. hctlltll. nr ,aEICtV 171' that persoll." as to show that the stores were only selling iriarijuana, alld 11 ot ProViding care for the hundreds who bought from them. cD 2009 California Police Chiefs Assn. 20 All Rights Reserved In addition to the caregiver -controlled buys, another aim was to put the whole matter in perspective for the media and the public by going over the data that was found in the raided dispensary records, as well as the crime statistics. An analysis of the December 2005 dispensary records showed a breakdown of the purported illness and youthful nature of the patients. The charts and other PR aspects played out after the second talcs Clown in July of 2006. The final attack �\ as to reveal the docIors (the {gatckeepers for medical marijuana) for the fraud they were committ.iiw. UCs from the local 111) Nl cllt irl and €:ailed the encounters to show that the pot docs did not examine the' patients and did not render care at a11; rather they merely sold a medical MJ r�cl�rllnlcnclati� t1 \ hoz e duration depended upon the amount of money paid. 111 April of —'(.-)0 7, two state and twv -, fedcral scat ch warrants were executed at a rG`k! it i r;: ' l ilu J ks l w are house utilized to cultivate Ill arijuana. Approximately 347 marijuana plants, over -21 1:i is ol'marijuana, and $2,855 U.S. currency were seized. - Due to the pressurc from the public.. Clic t_tnitod 'Stt+res .\ij()rnetip',, 'Agroed to pro s"uic 111c owners of rile bUtilnetisC5 with lar,,c Indoor- 01,111�WW ,-:i,)\v,, and I? li i _-d to I -)e im olved in 111011cy laundering activities. The District Attorneys (dice. aVf ed to prusec:ute [lie owners in the other investigations. In June of 2006, a Federal Grand Jury indicted ,P� owncrs for violations of 'l itle 21 USC, sections 846 and 841(a)(1), Conspiracy to Distribute Nlarytiana, sections x;46 and 841(a), Conspiracy to Manufacture Marijuana; and Title 18 USC, Section 2, Aidin4o and AhcJttiliLl- In. July of 2-006, 11 state and 11 federal search warrants were executed at btlsim:sses rind residences associated with ri-ionlbers (if these btlslnessGs. The execution of these search ' arnlrlts resulted in the arrest of 19 people, seizure til 0 Cr 190,000 in t-i.S. currency and caller assets, four haild-uns. one rine, tU5 marijuana plants from seven -rows, Gild a er 3 )9 k logranis of marijuana and marijuana food products. Following the search warrants, (wo businesses reopened. An additional search warrant and consent search were executed ,it ihz 2se respective loc�ltions. Approximately 20 kilograms of marijuana and 32 marijuana plants were svheel. As a result, all but two of the indiv iduak Zit -rested on state charges have pled guilty. Several have already becii sentenced and a 16v aro sti ll a" aititlg sentencing. All of the individuals indicted federally have also pled guilty and are awaiting sentencing. After the July 2006 se,Iri 11 �varra tits a joint press conference was held with the U.S. Attorney and District Attorney. during %. Mich copies of a complaint to the medical board, photos of the food p1'() {ucts X\ 111C11 were marks ,Led to children, and the charts shown below were provided to the media. Directly after these several co nit ied aclloIIti, dierc� �\ere no inarijuIna dIs' (FibIItI()II bu:�ittC"Ses operating in San .Disco County. Law enforcement a -en les, In the `pan Diego rogion, have been able to succ•estifully diSIllalltli: thetie bUSHICSSC' :111d Ilrcrsectltc. [Ile n'<vncrs. AS a wsult. nlcdic,ll marijuana cidvocates have: staged a number of protests demanding DFA allow the disiritlu[inn of trlIlrijuana. The closure of these businesses has reduced crime in the surrounding; areas. Q 2009 California Police Chiefs Assn. 21 All Rights Reserver} The execution of search warrants at these businesses sent a powerful message to other individuals operating marijuana distribution businesses that they are in violation of both federal law and California law. Press Materials: 18 16 14 12 13 S 6 4 2 0 Reported Crime at Marijuana Dispensaries From January 1, 2005 through June 23, 2006 in Burglary 3 2 1 1 �.._..... ... . Attempted Criminal Attempted Armed Burglary Threat Robbery Robbery Information showing the dispensaries attracted crime: 1__ Battery The marijuana dispensaries were targets of violent crimes 1)ccaUSC', of the amount of marijuana,. currency, and other contraband stored inside the businesses. I'rom January 1, 2005 through June 23, -1006. ?4 violent crimes were reported at marijuana dispensaries. An analysis of financial records ,ci eel tirom the marijuana dispensaries showed several disliensaries were grossing over $300,000 per nionth frons selling marijuana and marijuana food products. The njajonty of customers purchased inarijuana with cash. Crime statistics inadequately reflect the actual number of crimes committed at the marijuana dispciisaries. These businesses were often victims of robberies and burglaries, but did not report the crimes to law enforcement on account of fear of being arrested for possession of marijuana in excess of Prop, 215 guidelines. NTF and the San Diego Police Department (SDPD) received nurnert}us citizen complaints regarding every dispensary operating in San Diego County. Because the complaints were received by various individuals, the exact number of complaints was not recorded, The following were typical complaints received: • high levels of traffic going to and from the dispensaries • people loitering in the parking lot of the dispensaries • people smoking marijuana In the linrking lot of the dispensaries C7 2009 California Police Chiefs Assn. 22 All Rights Reserved • vandalism near dispensaries • threats made by dispensary employees to employees of other businesses • citizens worried they may become a victim of crime because of their proximity to dispensaries In addition, (lie following observations (from citizen activists assisting in data gathering) were made about the imiri.juana dispensaries: ■ Identiticaation was not rcques.tcd for in(!-Widuals who looked under age 18 • Entrance to business v,,,,i,- wi refused ti ai a:c of lack of identification • Individtaaals were obser�e,l Ioitering in the p,,J,JTig lots • Child -oriented businessk end rccreaitional ars: , ,v ere. situated nearby • Some businesses made no attempt to verify a submitted physician's recommendation Dispensary Patients By Age Ages 71-75,4. a% Ages 66-70, 19, 11& I -Ages 7640, 0, 0% Ages 61-65,47,2% Ages 81-85, 0, 0% Ages 56-60, 89, 3%, i i - No Age listed, 118, 4% Ages 51-5 Ages 46-50, 2 Ages 41-45,175, Ages 36-40. 270. Ages 31-35, Ages 26-30, 504. 17% 17-20.364,12% Ages 21-25, 719, 23% An analysts of paalient records seized dtirang search warninis at several dispensaries show that 52% of the cttstoma :rs purchasing marijuana were bet\tieen the a acs of 17 to 30. 63% of primary caregivers puri hrising marijuana were hetwecn the ags r,f' I X through 30. Only 2.05% of customers submitted a physician's recommendation for AIDS, Lilattacoma, or cancer. Why these businesses were deemed to be criminal --not compassionate: The medical marijuana businesses were deemed to be criminal enterprises for the following reasons: • Many of the business 9 .�A i,.—, had histories of drug ani' \ Mlence-related ,ureses, • The business owners rc ., eet-level mail f i j (.i:-. ,,.r .14 aalers ti- h,, :'; aadvaanta,,c. oto llrop. 215 in an attempt to legitimize n?:a; i j uana sal ! t r; 11, • Records, or lack of records, i d dun t Iw search warrants showed that all the owners were not properly reports P _, M:.from the sales of marijuana. Many owners were involved in money laundc: i is x :unci tar. cv asion. • The businesses were selling to ind � iduals without serious medical conditions. • There are no guidelines on the amount of maarijuana which can be sold to an individual. For (.c:) 2009 California Palace Chiefs Assn. 23 All Rights Reserved exanip 1 e, an individual ww i til a 11 h y s i c l a n ' 7 recommendation can go to as many marijuana distribution businesses and pus -diose ,is much marijuana as he/she wants. • California/ kiw Lsllowvs an individual to 1)osscss 6 mature or 12 immature plants per qualified person- l Ic)w-cvcr, the San Divuo Municipal Cade states a "caregiver" can only provide care to 4 people, 111clLit! ing themselves; this translates to 24 mature or 48 immature plants total. Many of these dispensancs are operating large marijuana grows with far more plants than allowed Linder law- ` overal of the dispensaries had inclloor' n'lal-ijuana grows inside the businesses. evith r1-laturc an[liar initllaturc lnari juatla plants [ w cr the limits. • State law .IllsNw S J tltlallliled Il/dent or lirimlary calregiver to nosscss no more than eight ullc�:s oh(liled marijtuln,a patient. I-lowvever, the gain Dic_�,!o N&MIcipal Code allows primary cared fiver,, ;-ws--,ess no more thari twvo pounds ol' processed marijuama. Under either law, ati-n sr: ,, ,.iarljuaila dispClls.lr-y had over two lio nlds of processed marijuana Burin_: the of the search warrant:;. r Sonic m arijuall,l dlspcils:ll i, -s lora customers to sign itlrms (lc4ignalting 1110 l�rssiIWSS ;s (heir I�I'iIII ar7 caIV; Iiler. in .III aiIC111p1 to circumvent the law. 2. EXPERIENCES WITH MARIJUANA DISPENSARIES IN RIVERSIDE COUNTY There were sonic marijuana dispensaries operating in the County of Riverside until the Distriel Aitorney's Unice took a vel v a-n-esshIC stanie. in closim, them. In Riverside. �iiivone til-li i � lt.10 ,l "cltsalified patient" or -primary calrc4giw cr'" tinder the Medical Marijuana Pro_F1-1,101 Act ww lu sells, or transports nlariluanas is heiug prosectiled. Sevcrall dispciis"ary cl(ystucs illustrate the Mi1xicl: this position has had on ivt,:rl!LIJ31,1 t,,sl, ll ; r i s. For install(,c. Clic: 11,illn sprillgs Caregivers disponsalry {also known as Palm Springs Safe Access (_'ollec(iw 0} \w- "vs sea rchcd after a warrant ww as Issued. All materials inside were seized, and it was ciclscd d[?wti i1 ;tlld /-chains closed. 1 he California ('Lire£=svers Association iation was located in downtown Riverside. Vcry shorily altar it opened, it was also searched pLll-SL1,1111 tU Li ww'arrant and shLlt (IOwVn. The CalnnaHLll7 dispkmsary w.vals located in Palm Desert. It was searched and closed doxvn 0mrly ill 2007. The owns r ,nld m o manauers were then prosecuted for marijuana s;des and po[ ses;sio ii of marijuana I'()r the purpose of sasle. However, ajucl 0 `ranted their motion to quash the search warrant and diswisscd the chm-cs- The District ,Vtorney'i Office then ippe:ailed to the Fourth District Court r-& Ap Leal. Presc�iitiy, the Office is ww'aiting for grail ar-Limcnis to be scheduled_ Di�peusaries ill rllc: county have also been clo'--,d I-,,, court order. The Hea!Mn °::.1,i, rl, F"llective wvass located in Corona. The owner lied about l.i-I:_ :iture of the business ihi Ii .r ,r,i i.:; ti ,r, [�. r a licensc- f llc city pursued and obtained an 191, t1i"i rii :i fill,+t r('( uf',-e d thy 1 -iii, 9 cSs k) , io,,C. he owner appcalc(i to the 1-ourill District Court of Appeal, which ruled Ll,,auist Bina. (City qJ Corona v. Ronald Nuulls el cal., Case No. E04?772.) 3. MEDICAL MARUUANA DISPENSARY ISSUES IN CONTRA COSTA COUNTY CITIES AND IN 011-11 Fit BAY AREA COU:N TIES Seg oral cities in Contra Costa C ouniv, Californias haiw c arddrkssc•d tills Issuc 1)\ cltllcr banning dispensaries, enacting moratoria al`.�,lllist then/, re-ulatim-, diem, or tal:iitli)ll that thcV are simply not a permitted land use bvcuus( they vi[,I.itO federal law, Richmond, El Cerrito. San Pablo, 1 icrculcs. and C=oncord have adopted permanent rardfli snces banning the establishsilent of marijuana dls17cnsLir1cs. Antioch, Brenovi od, Oakley, Pinc)le, Lind 1'k0a,,Iint I -[ill have imposed moratoria agailist dispensaries. Clayton_ San. Ramon, and ll',iliwt Creel, have not taken any f0 mall action regarding the establishment of marijuana dispensaries but have indicated that marijuana dispensaries @ 2009 California Police Chiefs Assn. 24 All Rights Reserved are not a permitted use in any of their zoning districts as a violation of federal law. Martinez has adopted a permanent ordinance regulating the establishment of marijuana dispensaries_ The Counties of Alameda, Santa Clara, and San Francisco have enacted permanent ordinances regulating the establishment of marijuana dispensaries. The Counties of Solano, Napa, and Marin have enacted neither regulations nor bans. A brief overview of the regulations enacted in neighboring counties follows. A. Alameda County Alameda County has anineteen -page ie2uiatory scheme which allows the operatDfli {if_three licrinlaccl diSpc:nsaries in unincorporaicd portions 01'111C cOLL10v. Dispensaries can 1)nly lie located in commercial or industrial zones, or their cquivalcm- .ind may not be located within 1,000 feet of other dispensaries, schools, parks, pl'lV21— rinds, churl recover, facilities, or recreation centers. Pri-mit 1Itisticince is controlled by the 5heritt: who is reeliuirCd to work with the Conu-nunity Developmeia \, cncv and the Health C;irt Ser\ ices agenic), to cstziMish operatint, conditions for each applicant prior to final selection. Adverse decisions t'tlil lie aippetilecl to the `S'heriff and are ruled upon by the same panel ro poiislble for setting rel,cru ig condioutls- That panel':; ciccisioa iimy he appealed to the Board ot' Supcn i:,ors, �\ hoose cleci:�Ion Is ftwil {Suhjcct to writ review in the SupCI-IOr Court per CCT sec.. 1094.5), 1'ersuns violating proN islutis of the ordinance are inuilty of a lnisde111eanor. B. Santa Clara County In November of 1998, Santa Clara County passed aii ori imuice permittMg dispeilsarles it.) k :.,Jst to unincorporated portions of the county with perllllts lit-st sought and obtained from the Department of Public i [ealth. In spite of this reguhitloii, neither the County Counsel nor the District Attorney's Dru- t - )nit Supervisor believes tll.lt Santa Ciara County has had anv marijuana dispensaries in operation at leiist through 2006. The 0111,• p01-111itted ,ictiyities are ille on-site culm,ation of medical 111.11-iju,in,i ;t11d li,. .4i:;tliblttion of medical n1 irljuanit;'i11r�1iclll m -ii- ju;ma liar d to fs. No rct;iiI !lc oi�:;ny proiil : i ..lir licrnlittec3 at the dispells arv. sill ldlil�-'. 111-Lsltoi1 or collsllmpti011 1:, :1IS0 pr, itiliitCd t ili ii .tc_, Or recommendrttions li.,r medical marijuana must be vcrtii,!d by lite : ; i: ,i,, s PuI,lic. Health Department. C. San Francisca County In December of 2001, the Board of Supervisors (sassed Resolution No. 012005. declaring San Francisco to be a "S;ulchian, Ior \IedICI'd U 'Hil'[his." ('IIV yciter. passed Proposition S in 2042, directing the city to explore the possibdlty of esi,ihlisltitlg a medical marijuana cultivation and distribution program run by the city i i sc l f'. San Francisco dispcnsaries must apply for ;usd rvk:cl� e a permit from the Del121-1111crit of Public Health. They matt oiiIN :l collecti%c or cooperative, as defined h} C,iliI Icaltli and Safety Code so.:Oot) I I i02 (,,,cc (11,cussion lil smion 4, under "California Law" above), and [na1 only sell or clistribUIi nlari;ll:.;;l,l tel nleillbers. Cult1\-Jh0t1, smoking. ,md s11111.in, Anel selling food prOdlletS may be allowed. I'• i'. !.i i.; applications are rctcrred icy the 1)epartmems of I'laimM�,. BLIIIJility hispecilon. alid Police. Cl illllll,l! I.,-,1ck.ground chccltti Are reLIL111-ed but C%cillptlolls could still ;IIIm\ the operation of dispensarlcs b3 iii,-;Hk.'•.d:l::il -vi11h prior coiwictions for \ iolrnt felonies of who Have hau prior permits ,ubpcnded or re:\, AdyCrse (IMSIMIS ca11 I)c a111cCL icd to tho Director of n 2009 California Police Chiefs Assn. 25 All Rights Reserved Public Health and the Board of Appeals. It is unclear how many dispensaries are operating in the city at this time. D. Crime Rates in the Vicinity of MariCare Sheriff's datti liave been compiled for "Calf for Service" within a Italf-mile raclitls of 127 Aspen Drive, Pacheco- i lo\vc%er, in research conducted by the Ll Cerrito 1'(11ce Department and relied tll)on by RP.c.lsid,-, C "111lty ill recently enactill, its hart on dispensaries, it was re o-nized that not all crimes related to !neclical inarll'uaim tape place in or archin l a t_iispelisary. `:tyle' ::1 e I?lilcc at the homes of the owners, employees, or patIons. l hercibre, these stati':tie� CJ01.i"T ;`y;;!lit ! co1111)letc picture cel the impact a marlivatla dispeiisary has had on crime mite,. The statistics sho-,, ti>at the overall number of calls decro:lscd (. s, -40 in 2001 versus ?,2(,0 in 2006). However, there h.1ve been increases in the numhers of crimes which appear to be related to a bushic- ,,, ,+'Mich i, an attraction to a criminal Ilei umt. Reports ofconi mercial bur,-larics ini j �°cl 14 In X005? 24 in 2006). as dict reports of resi(tenti d hLil-I'101-les f l;' ill 2'005) 16 in 2006) and niisc:cIIancous burglaries (5 in 2005, 21 in 2006). Tender Holistic Care (THC marijuana dispensary formerly located on N. Buchanan Cirele in Pacheco wv',.is forcibly burglarized on .lune 11. 2000. 54,800 ill cash was stolen. aII.+no with marijuana. liash, marijuana food products, ma1-I.1uaMI Bills. inarlItiana parapllernaIla, and marijuana plants- The total loss was estimated to be S l (),21w�- dari(= .ire %vas also burglarized within two weeks of opening in Pacheco. On 21"r i 1 4. 20064 a window ww as smashed after 1.1:00 p.m. while an employee was inside. the 1~l ,in s ,. ii orking, late to get things or-ailifed. The female employed called "91 F and locked hersel; iii Lin office wvhlle the intruder ransac:kcd the downstairs dispensr, :,;id stole more than 5200 worth of marijuana. Demetrio 1kamirec iadicated that since they itlst mowing ill, there, ww•asnl t much inventory. Reports of vehicle thefts increas -'-1 (4 in 2(1,) ;- '006). Di:,lurbance reports increased in nearly all categories (Fights: 5 in 2005, 7 iri ='i ti- ;lar ::; .iii :rit: f M +.r , 5 in 2006; Juveniles: 4 in 2005, 21 in 2006; Loitering;: 11 in 2005, 19 Iii -'u06; Verbal: 7 iii 2005, 17 in 2006). Littering reports increased from 1 in 2005 to 5 in 2006. Public nuisance reports increased from 23 in 2005 to 26 in 2006. These; statislic:s reflect the complaints and collecrwt by Iicarhy residents. Rcsidents Imve rep000d to the District Nitnrney's L7f#ice_ n.5 well us to Sll[wrvisor 111c:hlio's ol'llce. that when calls are made to the SheIrllfs Dep;iIlilli:nt, (hc off' nder lids o teiin'mts tk. t the Area bel'Ure 111w enfori.cinenl .,in arrive. This has lecl io less reportln;,, ;Is it appoors to local to i7: ;i Mile act and r sis:t 'tits hal. c been ad\ ise.d that law en%rcemeIlt Is 1111derstaffed and cal non iflw ai', ti '!incl ,N respond to 'ii: _:i1 ,L r ,ei i e, As a result, Pacheco developed a \cry active, visible NeiL,hl,o6hoou Watch pro .,r'::!"i. 1-h:_ ,:: :'; f became much more active in 2()(.6, according to lJciug Stewart. t. Voltilltccl ol.)'KliA i.l r;itlr ;14"itl bC`ran frequently receiving Call~ dirct:tly Frohn local. buslnL°sscs and icsidents t, 1 o _k,rii:;cted tlit,m instead of lawn cnCorcomont. It is thcrefoi _ ;i-`r-Jticaiit that there has stiIt 1)o ti :triiii r.,<�c in ni,my types Of -calls for law etlforcetnenl cervi._ . ;llii;�,i, 11 the overall number of calls has decreased, Other complaints from residents included noise, odors. smokitt{or/cons irning marijuana in the area, littering and (rash lrom t1w dNil :llti;iry. loiterir;-f :i�%ii ,l N.:1-1 01 L,i . ;! 1, iir;t! ill the rlearbv Church parking lot.. obscrw,,itioris that tl-w primaty pair+lits of Vlarit`are .11-fl-:Vdl to 1,_ individuate underage 25, Q 2009 California Police Chiefs Assn, 26 All Rights Reserved and increased traffic. Residents observed that the busiest time for MariCare appeared to be from 4:00 p.m. to 6:40 p,m, On a typical Friday, 66 cars were observed entering MariCare's facility; 49 of these were observed to contain additional passengers_ The slowest tilde appeared to be from 1:00 p,m. to 3:00 p -m. On a typical Saturday, 44 cars were counted during this time, and 29 of these were observed to have additional passengers. MariCare has claimed to serve 4,000 "patients." E. Impact of Proposed Ordinance on MedDelivery Dispensary, Ell Sobrante It is the position of Contra Costa County District Attorney Robert J. Kochly that a proposed ordinance. ,lioulti tt'1-minate operation oftlie dispenslary in El Sobrante because the: land use of that business wutlld be Inconsistent \\ ith 1)otli -,,wie and federal law. However, the Community Development appai,cntly belle es that MedDelivery can remain as a "legal, non- conforming else.'. F. Banning Versus Regulating Marijuana Dispensaries in Unincorporated Contra Costa County l: N ~imply bad public policy to allow the proliferation of any type of business which is illegal and s..111�ti`t i t _1l _ l:!i..ie:l by lederal and'oi :;trite atithorities, In tact, e.iaht IoC'Lltlolls a,,.Soclated With the ltiet� lw'i'i7wLili 1.1i'l11C:II ary In San Francisco and Alameda Counties were ralded 111 October of 2006, and ele: � it `)ouillcrn California niarijuana clinics "ere raidcd by federal agents on January 1,", 2007. I lie Ley :"Wgeles head of the tct_lcral Drug l_ntorcenwnt AdniMistration told CBS dews after the J:ua LLICN 1 -,.ices that "Today's enI'orcement uperatiinls show that these cstahlislinicots are nothing more than tlrli`ATaffiCkl1W 01-11 nit',itlons bringing crinllllaI activlti es to our liborhoods and drugs near our clijklrcn.:.nil sclioo s- Lafayette, Cali forni a residen I who owned a lnisiness that produced marijuana -k.! ,:,1 t%Oods and drinks for niariinana clubs was sentenced in federal court to five years and 10 mon ;1; behind bars as well as a $250,000 line. Several of his employees were also convicted in that case. 1s (tiscussed above, there is absolritclr! IlQ CXCeptian to the federal prohibition against. marijuana Cultivation, possession, transportation, use, and distribution. >ti',_"i.iwr California's votcr, nor its Le,;lslature authorized the existence or operation (?l 1 1 t,ilt busincsses ll it ',1 `._heel the opportunity to do so. These enterprises cannot lit iltcn;:,_ l . ; ` .,lto narrow cxc pt1ons thai % vere crcnted by the Conlp lssion ate Use Act and N/ledical llariI-tia1.,-1 flee gran, ALC t- Furthcr. the presence ol'lnarijuLina dispcllsin4g businesses 4:ontributes substanti,11I\ to flit existence of scclliulllr 111,11-ket 1'.)r i lie L, 1d. tl eet level dlstrlbutlon of mLiri jtiana. This lli(r t vti as c'\ ell I- counlizcd. by the United States Supreme Court: "'file exemption for cultivation hV 11aliews 1111d c.lrc4mcrs can 0111y increase the ,,uppl\ of m.irijuana. in the C"alilOnila market. The likelihood that all stick prcxfuetiorl \will promptly tertninatc �,, hen p awnts recover or vwill precisely imiteh elle patients' medical needs d1.lrin,, their ;cows remote, whereas tltt d ui,er 11i.it ,:xc.: se -s will satisfy some of the admittedly enormous dctmind for recreational il,,e seems obvious," (Gonzales v" Raich, supra, 125 S,C1. a l). ` 14.) As outlined below, clear evidence lyes enlcr-Tetl of such a secondai v lel=irket in Contra Costa County. • In September of 2004, police responded to reports of tkV0 hell pointing a Run at cars in the parking lot ,it Monte N71sttl high School during an cvemiiz football ,,Lime dance. Two 19-year-u[d Dativille res]cicnis revere located in the parkin, Io( o filch was full of xviilckw,s and pedestrians) Lind In pos:ticsaion ol",t silver Airsolt pL Ilct p] stoI Licsigned to replicate a © 2009 California Police Chiefs Assn, 27 All Rights Reserved real Walther semi-automatic handgun. Marijuana. ll ish, arca mash oil with typical dispensary packaging and labeling were also located in the car. alar,.,- with a i Ll llor bottle of tequila (14 full). a bang with burned Residue, and rolling laalicrs. hl young then admitted tci having consumed an unknown amount of tequila at the pai-lc next to the school and tilat they Math pointed the gun at passing cars "as a joke." They fired several BBs at a evcio den fence in the park when there were people in the area. The owner of the vehicle admitted that the marijuana was his and that he was not a medicinal marijuana user. Ile was able to buy marijuana from his friend "Brandon," who used a Proposition 215 card to purchase from a cannabis club in Hayward.. • In February of 2006. Concord police officers responded to a report of a possible drug sale in progre.;s. They arrest,.:t_d a lii--h school senior for two outstanding warrants as he carne to buy marijuana from thl cannabis club located on Contra. Costa Boulevard. The 7 citing man expkiili":d that he had a canniil,i; Iub card that allowed him to purchase marijuana, and admitted Owt lie planned to rc , li ;ome ol'the marijuana to friends. He also admitted to possession ofnearl ; ,;',li l< ofcoc nnr which Naas recovered- A ? l -year-old man Nvas also arrested on ail outstanding 'warrant. In hIs car %V'[y a 111'111i1U tl1lt 4_11-1lacder, a baggie of marijuana. rcolling pipers, cigars. and a ` blrrilt„ tdfr,liOWt'(t OL[i cigar fiiled with marijuana for smol;in-) with tine cued bume d. The 21 -year-old admitted that lie did not have a physician's rcctainmendation for marijuana. • Also in February of 2006, a 17 -year-old Monte Vista High School senior was charged with tClony furnishing of marijuana to a child, alter `Iving a 4 -year-old boy a marijuana - laced cookie. The furnishing occurred on campuw. during a child &N etopi lent class. • In. March of 2005, police and fire responded to an explosion at a Spin R�mlon towl-illouse and found three young men engaged in cultivating and naanlfacturin,,, "honey oil" for local pot chubs. Marijuana was also being sold trom the residenui�. Honey oil iti ,a (-oucentrated form of cannabis chemically extracted from grotirid up nwi ijt,atv,i with extremely volatile butane and a special "honcy oil" cxtRactor tube. The bulaiii ti•1!r1i(:t±")n operaiion exploded with such force that it hlctt the g,aras.;c door partially tact li.; li.ii s<Yw. Sprinklers in the residence kept the fire frena sl,rcading to the other homes in fah; 11 i,; ly packc d residential neighborhood- At least one of the men was employed 1)v Ken l3stes, owner of the Dragonfly Holistic Solutions pot clubs in Richmond, San i�rtiiicisco, and Lake County. They were making the "honey oil" with marijuana and butane that they brought up from one of Estes' San Diego pot clubs after it was shut dm la by lcderLil a�cnts. Also in March of 2006, a 16-vc,ir-old El Cerrito High School sl utdcnl �S ils ,arrested after se Ili nt! pt)( cookies to fellow students on c ini fatis, mauv of whoni hccanic ill. At least fo:,,' 1 _ Itii ti ^ hospitalization. The investigation revealed that tiac ct okles were made with. a 1?ntt,;t' c, hIlii,;i d Oliki dt a marllliana dispensary I Li secondiiry s;iIa BCtr� eco 1bltifc11cit 2004 anal '' i:, u1 00 L-' 0. the l Cerrito Police Dcp.irtmcnt COnductecl ~evert iiia esti gat ic"ns at ill_ Is ;,_hool anis junior high school, restilting in talc arrest 1'n%,2iiiles for *iiig with ilrtelit to sell ila;ir-ij[wna on ur iircatinil the School c inapuses. • In June of 2()00. \;oraga police oilicers ni'lidc a traffic stop Iiia- u,;p7 'cicd driving under the influence cat alcohol. The c.ir way seen drifting over the clouhle vcll(m line scliaratlil"k north and soul hhound traffic hint. ,lid drivinu, in clic hike lane. The 210-vear-old driver dented havility consumed ails' :i "I l', �. a,` !,c '•vLis the "clesignated driver. " When asked about his bloodshot, watery, and droopy eyes, the college junior explained that he had 9 2009 California Police Chiefs Assn. 28 All Rights Reserved smoked marijuana earlier (confirmed by blood tests). The young man had difficulty performing field sobriety tests, slurred his speech, and was ultimately arrested for driving under the influence. He was in possession of a falsi tied California Driver's License, marijuana, hash, a marijuana pipe. a scale, and $12.29$. The marijuana was in packaging from the Compassionate Collective ot';1laiiletla County, a Hayward dispensary. He explained that he buys the marijuana Lit "Pot C'ltl)s." sells sortie, wid keeps the rest. He only sells to close friends. .Tout $3.1)(1t) to S4J)00 of the cash Nvas from playing high- stak s poker, but the rest kGas earned selling ll anjuana Mille a freshman at Arizona State Uim-ersity. Th,,- l X -year-old passenger had half -an 01,111CC of narijuana in her purse and produt:cd a doctor's recommendation to a marijuana club in Oakland, the authenticity of which could 1101 hC C011t11.111ec1. Another significant concern is the proliferation of marijuana usage at community schools. In February of 2047, the 11 althy Kids Survey for Alameda and Contra Costa Counties fotind that youthful substance .lhuse i:; more common in the 1 gist Bay's more affluent are -,is. These Areas had higher rates of high sclim-,l juniors who admitted having been high from drugs. The regional manager of the study found that the affluent areas had ]Rubel alcohol and marijuana use rates. USA Today recently reported that the percent.igc of 12 1' (-; rade students who said they had usQd w.tri juana has increased since 2442 { f i om 33.6"'o to 3o.2'; o in 2(105), and that marijuana was the most -Lined illicit drug among that aoc Y-)roap in ?4116. KSDK News Channel 5 reponcd that high school sw(lents are finding easy access to medical marijuana cards aixl presenting them to sc11001 authorities as a legitimate excuse for getting hi+ -h. School Resource Officers for Nlontc Vista and San Ramon Valley Hi,=h �c hools in Danville ha. c reported finding marijuana in prescription bottles and other pack.igin,� frr.iill Alanlccla County dispensaries. Maglu',ma has also been linked to psychotic illricsses.1111 A risk factor was foutld to be starting rrlariluarla use in dolescL!Ilce. For all of the above reasons, it is advocated by District Attomcv Kocllly that a ban on land uses which violate state or federal law is the most appropriate solution for the County of Contra Costa. 4. SANTA BARBARA COUNTY According to Sant.i Barbara County Deputy District Attorney Brian Cota. ten marijuana dispensaries are currently operating within Santa B.lrbara County. The mayor of the City of Santa Barbara, who is an outspoken medical tllanjuann suppc_lrler. 11.is stated that tile police must place marijuana behind every other police priority- ThIs flat; niadc it difficult k)r the loc.il District Attorney's Office. Not many minjualla Cases telae= to it .for lulu-:. The District Alto rney's t 1f-1icc \could like more rcgul.ttioiiti l)I,iced on Illy: dlspensarmes. I lowev,'r, the majoi-Ity of Sanui Baib.ii-a County political lcadcrs and reNidellts are vcry liberal .ind do not want allvonc io be cfLniccl .access to Medical nil injtiana if they say they Heed Ii. I'.irtly as a result, no disptnsamfs 11 e been prosecuted to date. 5. SONOMA COt NTV "tephan R. 1':+ss.1l .,l:G;.. District :\Hoi-ney for 11ie County of Sonoma, has recently reported the 1611o\ving inforn;,n-i,,ii related to distribution c4 n-cdical marijuana in Sonoma County. In 1997, the Sr norla County f :ry Enforce111ei1t Chiefs Association enacted the following medical marijuana "LIOCIiileti:.i qu-, j:-k�d patient i-, 11k.'rlllitted to possess three pounds of marijuana and grow 99 plants Ill it 100-SCIL1111'e-ioot callopl . ,'. qu flitted care, -mer Could possess or grm-v the--ibove-11 illii. l d amotlrlts liar c',Wh luaIitiecl prttfcnt. These IYu1621ines were eiwcted after l'rc,po ition -11 � overwhelnlipissed by the voters o1,Cal i1,61-1li t, and after Iwo separate untiucc:cs:sful prosecutions in 5ouoma County. 1 tiro Sonoma County jtules returned "not �. uilty" verdicts icer three defendants 0 2009 California Police Chiefs Assn. 29 All Rights Reserved who possessed substantially large quantities of marijuana (60 plants in one case and over 900 plants in the other) where they asserted a medical marijuana defense. These verdicts, and the attendant publicity, demonstrated that the community standards are vastly different in Sonouaa County compared to other jurisdictions. On November 6, 2006, and authorized by Rill 420, the ` ononiti C'ounw ill nrd o f `,(.1pCrvIsors specifically enacted regulations that allow 0 1 :1 i ted person hoIdIn<- a 'c a I I d IdentltlesitIoil etlrtl to possess up to three pounds of dried cane il,i :; ear and cultiN circ 10 platy, leer gttalitied patient. No individual from any law enforcement agcli in Sonoma County appeaYed Eft the hearing, nor dict any representative publicly oppose this resolution.. With respect to the People v. Sashon Jeiildns case, the defendant provided verified medical recomnlclidatiolas for five qualified patients prior to trial. At the time t? 1 :trit, Jcnl,ins said that he had a medic it imirijti,,uia card and was a care pro\ ides for mtiliiple people, but was unable to provide specific docl-i inc ntation. Mr. Jenkins had approxi niate I v 10 pounds oI' dried marijuana and was growing 14 plants, which iminber of plants is consistent with rile 2006 Sonoma County Board of Supervisors' resolution. At a preliminary hearing held In January of 1-007, the defense called five witnesses who were prot't'cred as -lcnkins' "patki-,,i ' and ,vlio canoe to court with medical recownlendations. Jenkins also tcstificcl that lie was tiles- Altcr the prelIin1nary licanng, the assigned prosecutor conducted a thorOU111 tet ,LW of the facts and the lave, and concluded that a Sonoma. CL?t111ty jury would not return a "guilty" verd1, i in this case. lienee, 11 L) tcic,ny information \E as- filed. W[th re.sl}cct to the retctrn of prop,rty i;;ue, the prosecuting deptity district attcai-rlcy iw\~ Cr a«reed to release the tllarijtiana .11,imssing the case. Other trial date's ;ire pending in Lases where medical niari,jtiana defenses ra't'e beim, alleged. Ditilrict Attorney Passalacqua h;is noted that, given the ov erMlelna[ng passage ofpropo.�itlon 115, coupled with at least one United Stales SU111`CMe Court ticci.slon that hits riot struck it dowil to date, these tactors presem currciit I()I' lav ctit-Oreenlent, heft that Ile and other 11t"OSCLI-1101"S 1t'ill Continue io vi`orouslyproscculc dcttlerti 1.vith'il. [lie bound;trics of, the lav~ - 6. ORANGE COUNTY There are 15 marijtiana dlspcw�arics ill Or,{n,_c Ckl 1t,.:il?.; severill tielivCIA services. Many of life delivery Services Operate out o1 the City of Loii i:.':tc1) In Lc?ti l�n-cics Cotlllty. t 1'an`.?e Couritv a ,e,uk:h Warrant on toile disPL'Iiw:t %..1!.11.1 1' ;cd it down. A, docimon is beina made whether or iiot to tilt= criminal charges in that cit,,, , 11 is po,,,ible that the United State.; Attorney will file ori that dispensary since it is a branch O ti iii ; r ai"y that i1w 1cdoral awhoritics raided in San Uic,�t? County. -1.1tc. Orange Ct?tllit` Board OfSLIPCn isors has ordered Li stud\ 11V elle l:•.ollllty-S 11eI.W.1 i.:'are Departmcnt oil hole, to comply Nidi the ,Medical N1I irijuann Pro—rant Act. The is i-li ict ll orn,_v's Oft -ice's position is that anv activity under the Medical M.iriluaii�i 1'1, : r:►ln Act bevorlti the menti [ssu.11}ce of identification cartls violates federal la v. '[`lie 1: i strict Attorney's Office has made it clear to County Counsel that if any 1laedical marijuana prm [der does not meet a strict definition of "primary caregiver" that person will be prosecuted, 2009.California Police Chiefs Assn. 30 All Rights Reserved PENDING LEGAL QUESTIONS Law enforcement agencies throughout the state, as well as their legislative bodies, have been struggling with how to reconcile the Compassionate Use Act ("CUA"), Cal. l lealth & Safety Code secs. 113 62.5, et seq., with the federal Controlled Substances Act (" C SA"), 21 U.S.C. sec_ 801, et seq., for some time. Pertinent questions follow. QUESTION 1. Is it possible for a storefront marijuana dispensary to be legally operated under the Compassionate Use Act of 1996 (Health & Saf. Code see. 11362.5) and the Medical Marijuana Program Act (Health & Saf. Code sees. 11362,7- 11362.83? ANSWER 1. Storefront marijuana dispensaries may he legally operated under the CUA and the Medical Marijuana Program :Act ("N1 'IPA"), Cal. Health. & Safety Code secs. 11362.7-11362.83, as Icing as they are "cooperatives" under the NILMPA. ANALYSIS The question posed does not specify what serN ICCs OF Produwts sire avildable at a "storefront" niarl'Juana dispensary. Tlie qucstirrll �11,,G1 clues Itot specify tllc bilsilicss structure of a "dispensary." A "d1slacnsary " 1s often coninionIy used Nowadays as a `cneric term for a facility that distriGutes mcLilc•al marijuan,l. The. term "dispensaiv" i', also used specihcally to refer to rritlrijuana facilities that :lrc operated more like a retail estahlishr"ient. that sire Cil}en to the public and often ".sell" liiedical nlarljLlMla to qualitled patiellts ar r lrc4 ivcrs. BN' use ofilic twrrn "store front dispwlisarti." the clue,iIon may be presurning that tlii, Wpe of facility is heir- olicrated. For purposes of this an"ll%sis. � • Nvill ass Lune tliaL a "dispensary" IS a "Clieril' term thdt does not coIiteniplate ;illy p;lrll:illilll711ti11W tis structure.1 Based on t}rat assumption. a "dispensary" might p ovlde "assIS11111ce ill 'Li quallficd palmit or a person �vlih .in identific ltion card, or his or her desi�.iiated priniriry caregiver, in ldn nil terhig medical marijuana to the cltudified patient or person or acquirin- the skills necessary to cultivate or administer marl j Liana for medical purposes to the qualified patient or person" and be within the permissible limits of the CUA and the MMPA. ("Cal. Health & Safety Code sec. 11362.765 (b)(3).) ' As the term "dispensary" is commonly used and understood, marijuana dispensaries would not be permitted under the CUA or the MMPA, since they "sell" medical marijuana and are not operated as true "cooperatives." 2009 California Police Chiefs Assn. 31 All Rights Reserved The CUA permits a "patient" or a "patient's primary caregiver" to possess or ctiltiv ute rnariiUana for personal medical purposes with the recommendation ora physic•ittlt. ( c(-',11. Fleal(It `�atcty Coale ,ec. I 1 02.5 (d).) Similarly, the MMPA provides that "patients" Or designated "primary careglvcrs" who have voluntarily obtained a valid medical marijuana identification card shall not be subject to Lirre.st for posscssioii. ti n asportation, delivery, or cultivation of me(ticLli mariivana in specified quantities. (Cal. health & Safcty Code sec. 11362.71 (d) & (e).) A "sto>refrollt dispensary" would not fit within either tit these categories. However, the MMFA also provides thrtt "I cl]tialified patient:,. ', ith t 1ili -i iklooil t it`nitoil cards, and the (lcsi�_,natcd primary cark,,JN crs otyualified patients and pert m< itlt identification cards, who a:;socmic within the State of C. al i tornia in lacier collectively or e'otrpci tir,Wel); to cultivate mariji_1,111a ti+r iticciical purposes. shall not solely on the basis of tliLit flic! 'he subject to state criminal sailc-tions an,lor section 11:157 [possession], 11358 1planting, or processing], 1 1.15c) [poscssiou for salel. ! I.760 1 llillavvfiil trantiporttltion, 11-111-1o[ ,,iti in, sale or gift]. 11366 [ol�cn1-1 or tllalntainillg place for trafFicking in controlled 11 ',06.5 [providing place for manufacture or distril)ution tit controlled substance; l ortill'itlg building to suppress lav enforcement entry], or 11570 _I_itiiicltr,.i; or places deemed nuisances sublectto abatement]." (Cal. Health & Safety odr sec. 1131> ; i t i nlph lsis C'adcicd) } Since medical niarijuana cooperativ cs arc perinitted purstiant to the. NMPA, a "sioretront dispens,iry" that would clualify as a cooperativo ii'rw/d be perinissible under the N1N4PA, (Cal. 1lealth & S,ifeiy Code sec. 1130.1.775. See also Pe-ople 1 Ur-iccmm ('00{ } 132 Cal. App. -tali 747 (finding criminal defendant," as entitled to present dettnsc relating, to operation of illedical marijuana cooper-Lttit c} ) In granting a rc-trial, elle a1�1-)elftltc court in C 'rcice ano found that the defendant could present evidence which might entitle hien to a defense under the MM PA as to the operation of a medical marijuana cooperatiN C. 111CIUding tic l,ict that the "cooperative" verified physician recotnmend:ltions and identities of indiv idtwk seek11111 Medic:ttl nliirljlklMl UIW individLials obtainin( inedical warijuarla paid membership (ecs, reinlblirtiecl clelLndant for Ills costs in ctiltiti atin!T the mcdical marijuana by way of don -pions, and kohin(eorect at the "cooperative." (Id. at p. 785.) Whether or not "sales" are permitted under Ur:icc•rr m and the MMFA is unclear. The U'r--iceanit Court did note th .a the incorporatioii of section 1 ] 359, relating to marijuana "sales," in secilon 11362. 775. ',Illi}WIn� the operation 'conte nipkites the formation and operation of nicclicinal niartltta11.1 cooperlitrVCS that VWUld r ' .' 'll ,' i,itnborse2inent for marijuana. and the services prop idc(l M conjunction with the provision o( ;i-t,ii t1l1ir1ju ijw_" Wllctller "i%_'II ii!)Lirsenient" inaN be in the form only of donations, as �,, ere the facts prescmcd in C: rzic'e'aiw, Lir �E lietller "purclli1;4 s" could be ritade for medical marijuaii�t, it does seem clear that a medical. is ,ri Altana "'cooperative" may not snake a"profit," but may be restricted to beim, reimbursed for ,icitiai costs in providing the marijuana to its members and., if there are ,lny "17riitits,' these may leave to be reinvested in the "cooperative" or shared by its members in order for a dispemary to Q 2009 California Police Chiefs Assn. 32 All Rights Reserved be truly considered to be operating as a "cooperative. ,2 If these requirements are satisfied as to a "storefront" dispensary, then it will be permissible under the MMPA. Otherwise, it will be a violation of both the CUA and the MMPA. QUESTION 2. If the governing body of city. cotlnty, or ci(G incl CoL111ty ,Ipprol es an ordinance atltl o razing and regulatim., iminjuana clisllcnsaries to Iniplemcnt the Colripassionate Use Act of 1.N6 and the Nxleclical Marijtiana Program Act, can an individclal board or council mernhcr he tiltind to be acting illegally and be subject to federal criminal charges, illcludill2 aidin , and abetting, or state crin inat charges? FAIMIUM 010 2. if a city, county, or city and county authorizes and regulates marijuana dispensaries, individual members of the legislative bodies may be held criminally liable under state or federal law.3 ANALYSIS A. Federal Law Generally, legislators of federal, state. and local legislative bodies are absolutely imnlune from liability for 1c;,i5iative acts- (U.S. Const., art. 1, sec- 0 (Slleecli and I?chate Clatlse, applical)lc to nlernbers of C inwnress): I -ed. Rules I:vid., Rule 501 (ev idcatiary privilege against admission of legislaliv e acts); Temici, v. BrAttntll ove (1951) 341 U.S. 367 (le, islativ e immunity appiirahle to state legis Ialors); Bogan V. scott-Harris (19c) i �?3 U.S. 44 e ininitillity applicable to local le(_,islators). ) €-Icp�' ck cr. \ hile federal 1Q,0slators are absolutely inrnluile from Goth criminal and civil Iiability for pUrely lc�islativ c: ac( s. Ideal le-'skitor are oiily ininitlne from civil habiiity ruder federal law. (l iriterl.` lata, i'. 011oc'Ic (1980) 445 U.S. 360.) Where the United S1,t..:' yrerne Court has lidd tliat fcdcral re`tilation of marijuana by w;lt of the CSA., 111c.ltlilifi` ;i;i ',i -'al" use of 111al-11tlana, 1s w11111I1 Coll-'ress, C olllnicrci: Culls power, fedei,ll law st,tild", ,?:ui It har to local action in direct violation of'the CSA. (Cir n.zc lc,. v. Raich (2005) 545 U.S. 1.) In fact, the CSA i(si:li' provides then Ccderal regulations do not A "cooperative" is delMied as follow., i ite.rprise nI- r 1'1_1 illization that is owned or managed jointly by those t� ho use its facilities o `c i;.' S. Tw..-'A-rtl tztt' AN 11F.PATAGE DICTIONARY OF THE I �c;l.t ti LAN01'AGE, by 1IoLq-,litoll Mif-11111 Coil allA (4th I'd, 2t)00)k lllciced, tllc ,anlc cnnctusicrn x\ mild seeni to result from the adoption by state legislators of the 111 MPA itself, in authori7in11 tllc issu,Illce of medical marijuana identification cards. (Cal. Health & Safety Cade sees. 1 136-1.7 1, et scq.) 2009 California Police Chiefs Assn, 33 All Rights Reserved exclusively occupy the field of drug regulation "unless there is a positive clan dict that provision of this title [the CSA] and that state law so that the two cannot consistent IN. stand together." (21 U.S.C. sec. 903.) Based on the above provisions, then, legislative action by local legislators could subject the indi� iciutll legishitors to federal criminal liability. Most likely, the only violation of the CSA that could occur as a resuh. � �fan ordinance approved by local legislators authorizing and regulating medical marijuarl.l w mi ld be aiding and abetting a violation of the CSA. The elements of tl]:. i, 4; i(' 1,:c i)f aiding and abetting a criminal offense are: (1) specific intent to facilitate commi�,,;ion of a crime by another; (1) guilty knowledge on the part of the accused; (3) thatan offenti;: ,_• a.s, being committed by someone, and (4) that the accused assisted or pai-ticil1ilteci in 11,L COI Ili If' Ml offense. (United States v. Raper- (1982) 676 F.2d 841; United San" v. 1;laten (1978) 581 F.2d 878.) Criminal aiding and abetting liability, under 18 U.S.C. section 2. r_cluires proof that the defendants in some �yav associated themselves with the illeg=al � enwre: that they partic•ipatcd ili the venture as something that they to bring about, .ind that thew sought by tlicir acti0111; to make the venture succeed. 1 C'c•wnil 13,mk, N.A. v. Fivs! Inic ),state Bmik, VA. (1994) 511 U.S. 164.) Mere famishing of compary to a Person ens agcd i,i a crime cines not render a companion an aider orabettor. ( United Slate 1. c ar�rWlo (2d Coir. 1 c)621) ; 10 F.2d 249.) In order for a defendant to be an aider and abettor he lmist know that the cond hired l)v taw is actually occttl ring and trust intend to help the perpetrator. (Unitc d Strrtc°,5 v, ,I lc D(rrriol [; 9th Cir. 1976) , 4� F.21d 641.) To be guilty of aicling and abetting, the def' ndant intist 1L 411ful1v Seek, lly some aiction of hitt own, to make a criminal \'entt[rc succeed. ([.'rite c1.5'trrtc.c ti'. Ehr ciiber, (E.D. i1a. t 9-173) ?;d l;. Supp. 460 cert. dented (1974) 94 S. Ct. 1612.) 1'110 question, 'LIS posed. ona y presume that the local legislative body has acted iii :i r-!111-1cr that affirmati� el :;llpports marijuana dispensaries. As phrased by .Senator Kuehl, the question to be answered «y the Altornev (icnerall's Office assumes that a loc,,d lewis1ai-P,c: bodyll, .:{ c,l)ted an ordinance 111,11i "authorizes" :nedicail marI.Itiniul i, clllticy. 1k hat It a lol:al pLlhlie entity ; dop is an ordinance that explicitly iil lil';ttk° ih,i' i { d ; i;r,j ; it] t11Ul-1 e, [Celihze. or Permit. ally (11"twilsa y that is in violation of federal 1 ,\ i lil,,w cE,;siiolled sul)s incos? 11 [li : local public entity orallts at permit, regulates, or inn[?, jklclili: li'.il regtttrclncilts [i€] mai ljlla?rat dispcil ti! i s e>>ith the aillltilllll��dlulderstandln [t1:i[ it Llue�; !]tit 1111111 a111V rlle."wl aictlt11' 'Ind d-i.a dl','peiltiaries are tecf[lired to comply with all appli"a IDIC lac`,;. +ii,, kidinu f':denil laws, then (ii,: public entity �dhonld h1 entitled to expect that ll! !tris will be ol-5�: ecf. It �%onld cL?m that a public entity is not intentionally alctiti'r I(% clic0u1:110 or aid acts in violati0il Ofthe inc.rcly hec.tl[ise it has adopted in ordinance \r llich regulates even the ititivalrIce of a "I+ermit", if it is (!Xl]resslr irol :illo\k ill_ 1 iol..itions of federall Cam, c-L1i1i01 necessarily ti ipport a charge or conviction of aiding and til]cttinwr v lohtion of the t.'SiV A puNic onilty tihould bc entitled to prc,,mric that dispensaries �\'ill obey all 7111plicable I'm s and that Iain 1111 IXIMHC.sS will be conducted at dispensaries. For instarice. duipcnsaries .:mild vcry well beet engage iii actual medical marijuana distribu[itrn, but iristcad In cdtictitlun amt m armee. uci1� hies Lis to the lnQdical eftertN '.il ti1a1["iJtlaill,t; the sale 011 0111,21'. prodticts [ltat a11J llt t11e �tllltrlll'�' ctl tci 2009 California Police Chiefs Assn. 34 all Rights Reserved ailing patients; or even activities directed at effecting a change in the federal laws relating to regulation of marijuana as a Schedule I substance under the CSA. These are examples of legitimate htlslness activities. and First Amendment protected activities at that, in which dispensam.. could cngaLe relatintF to ri4:dical mariju ilul, but not apparent): ill violation of the CSA. Public entities ,ho uld be emit 1,2(i -,, pie--,unic flim legiiinlate acil v'lil x.'41.11 and will be engaged inky dispensatics tliat are perin"Ec,.] -ind or rcgulated by local regulaiOm - In fact, it seems counterintuitive that local Iniblic eilmics !ihin the state shotild be expecl,.,J to be the watchdogs of federal 11111 ; II] the Arca of controlled su] ,stances, at least, local public Cniltic's do not have an affirmative obligation to discern whether bush:,-,,ses are violatin`- tcdcral law. The California Attorney General's Office will note that the State Board of F.clualization ("BOE") has already done. precisely \� llat hah heel} Suggested Ill Illi: preceding, paragnaph. In a Special notice issued by the B01" this vear, it has indicated that sellers of medical marijuana mast obtain a seller's permit. (See {Special Notir'e:. Important Information lt;r Sellc i -s of 1lictlical lVl irijuanii}.) As the Sliccial Notice cxplicitly indicate,., to medical niarijtianci tacilities, "[hJav in, i seller's permit does not mean you have authority to Brake unla�,� ful sales- The pk irnilt only proviLic:s a %Nay to remit any sales and use taxes due. The permit states, 'NOTICE- 1-0 PL,RMITI-1-",P: You are required to ol,cy all federal and state laws this IVU'Ukite or control your business. This permit clues not Alco void to do othLrll Ise,"' The above beim-, sLlltl. hmc cv cr. there is no marantee that criminal charges would not actually be brought by the ledcral 4glovernnlent or that person; so charged ccitlkd not be succ:cssfilly prosecuted. It does seem that Jr-uments contrary 1.0 the :i OVe c011cltas1011S C olid 11C PcrsuLlsi%e in convicn m, luc it lc,,islators. By permitting andlor rctttilating marijuana dispensaries by local ordinance:, some legitimacy ami credibility may he +,ranted by }governmental issuance of permits or authorizing -Laid allowing dispensaries to exist or localc r%ithiiin jttriSdietion.t to All of this discussion, then. simply demonstrates that individual board or cotincil members can, indeed, be found criiilinil ly liable under federal law for the adoption of an orclinance authorizing and regulating marijuana clispeiisaries that promote the use of nmarijuana is lnc&Cme. The actual likelihood of prosecution, and its potential success, n1aN depend on the particular facts of the regulation that is adopted. `' Of course, the question arises as to how far any such liability be taken. Where can the line be drawn between any permit or regulation adopted specifically v ith respect to rii:iriI'Ltana dispensaries and other permits or approvals routinely. and often nimi.4tcrlalh . -i-anted by local public entities, such as building permits or busines,, lie.cn:ses, \'-hich are dei cusi.cd infra? If local public entities are held responsible for adopting; an urtiinnnce authori:1r,., :;iis.l lir re}1tilatiVIL, marijuana dispensaries, cannot local public entities also be subject to I i l•hi 1 ii! ''Ur pre} icliilg general public serr ices for the: illegal dis11-1l7uti01] i,f "medical" marijtcto,.i'.' ( )illd it local public entity that knee' a clitipcilti;iil }.vas dlstribitum,"inedlcal" manjtl'in:i 'Oi�TII: II�C +.`•;ith state law be criminally liable if it provided eleciricity, ,iter, and trash tel that di-i'clisary'? How cali stick aCtI()ns really he distinguished from the adoption of a;l srl iIiti:itice that ::t 01iorizes and/or regulates marijuana dispensaries'? C7 2009 California Police Chiefs Assn. 35 Ail Rigl-is Reserved B. State Law Similarly, under California law, aside: tloni the l-ierson who directly .:ol7lrnits a criminal offense, no other person is gttiliv as a principal finless he kids and abets. (People v. Dole (1899) 122 Cal. 4,�6:1'eople v. ,5'Ic°if? ( t 1)4?) ; Ga 1. App, 2d 417.) A person who innocently aids in the commission oftllr ci-irrte cannot he found guilty. (Perl)le v� Frt•clom ( 1910) 1.2 Cal. App. 6 X5.) To authorize a conviction as. Lin aider and abettor of crime, it ulu:t be shown not. only that the person so charged aided and assisted in the commission of the offense, but aIso that he abetted I1ic act— that is, that he criminally or with gttilty krlmv ledgc and intent aided the actual pe1-pe-trator in the commission of the act. (Parole• v. Tcrinan (1935) 4 Cal. App. ?d '45.) To "abet" tltiolller in commission ofa crime implies a consclntl,nes, of guilt In irsttotltinL� , encouraging, pronlotin'g, or aiding the commission of the ofl:cnse. t 1'c°oph, 1,. Bc st ( 1941) 43 Cal- App. )d 1 W-) "Abet" it't tplics knowledge of the w ronL ftil purpose of the pci-pc trator of the crilllc. Wc: (r jdc v, Stein, .emrpra,) To be guilty of an offense conin11tted by anotlier person, the accused trust not only aid such perpetrator by assistim, or supplementing his efforts, but mu -,)t, ivith knowledge of the wr+.111-,ful pal -pose: Of the perpetrator, abet by inciting or encouraging him. (People v. Le. G) -ant (1946). 76 Cal. App, 2d 145, 172; People v. Carlswi (1 Q00) 177 Cal. App. 2d 201.) The conclusion under state law aiding and abetting would be similar to the analysis above under federal law. Similar to !t,,i,_-,al hm 11111nurilties available to local legislatcars, discussed above, state law immunities prw, I& sialic protection 1"Or local Legislators. Local legislators are c.criainl_y immune from civil liahiiiiv a,_l ;ting to le-Islativc° acts, it is uncloar, lim7 cver, w1letlier they "ould also be immune f "-)m crimi°1al liability. (Steinc•r� ),. Slrpc•r for Court, 50 Ciil. 1pp.-4th 1771 (assuming, but foidin;T no [ :tit ,-1rn"t atttharily tel,tting to a "criminal" exception to lhsaltltc immunity for umlor ]a" J.1 Gl1 en the apparent titilte of the LAW, l0c�d 11411til�1tol'S could only ho tll_lt 'h .', iwid be immune frow civil hability and could not be certain that j Although the Stainer 4.� m!ll: ,-otes that "well-cst�&ON'licd federal law supports, the exception," when icderal ctlsc authwiii, is:,pplied in a stale I,_1\\, ontext, there nlav he I dilicrcllt ouic'ume. 1 c(1crA atlthOrmcs note iil;ti .Q)c ptl1-.-,7;e supp,,rlill_'. c•s-irllinal immunity as to federal legislators fro111 federal pre?scci.11li 1S Itie `_'I .Il.nl101) 0 pi!.1 ", iOM-llle, Which does not apply in the contk�xt o IL u/ crlc,wever, i1"a st'ltc or County prosecutor bt-OLlght crlminill t12 -Ji `"Midst a local lcgltilator, [hc sep"lration of pow rs doctrine may bar such prosecution, (CL,i. Const.. art. III, sec. 3.) As fCdvi-al uuiliorines note.. bribery, or other criminal charges that do not depend upon evidence of" and cann07t be said to further, any lc{,islative acts, can still be prosecuted aLnilnst lcu-islators. (See Br o c v. Riddle (4th Or. 19', fO) 631 F.2cl'171, 279 ["Illc<Tal acts such as btihcrr ;llc oht i ,n 1v not in aici c,# 1c4 i,lativc activity and lcF:itilators. cart clailli In lmmunit`v' For mlc'r1 Shllc.� r, Bl'cit swr, U.S- 501 [[indictment tin- bribe!,. li.rl ,.ic•pendell; '.li •.)Il h(w, 6� `.9 l Iit"1' debLited, voted, or did anyti-i ng in chanlher or conln:ltiC,% I!1 i! „."1111011 i 21.i i_11111' aca`-'- ptance of money for promise to vole, not c'lrrvinig thio: i, -::1i „i ute 6V I,`gi:,l,lt ,t �: tcd State t. Sit- l Ball (11th Cir. 1c 1P) 1)71 1,.'(1 Q 2009 C Miforrlia P= -)!Ic Chiefs Assn. S All Rights Reserved they would he at all immune from criminal liability under state law. However, there would not be any criminal violation if an ordinance adopted by a local puh11c ental,,° were in compliance with the CUA and the %OMPA_ An ordinance authorizing anti re1,lllatin+g meclicaI marijutana would not, by virttile solely of its subject matter, be a violation of state law; only if the ordinance itself permilicd tiltli ei ictivlty inconsistent with state law ] e luting to medical nlarliaana would there be a r IoIatioil of state: law that cotil d subject local legislators to criminal liabik ! alder state law. QUESTION 3. 1f the gtncrlaing h()(tv ot',a city, city and county, or county approves an ordinance atlthc'rizin, 'Lind re`ulLit] ng marijuana Jispensaries to implement the C`ulip assionate Use :Act of 1996 and the Mc(11caI Marijvia na Program Act, and stihsequently a particular dispensary is found to be violating state 1',m, reR,arding ti ales and trafficking of marijuana. cotald an elected official on the governing body 17c 44LHlty of state crinimA charges'' ANSWER Iter aIdo 7tloix ofan ordinance aLIH10rizilzg 01, re'ulatim, marijuana dispensaries, elected ol'ficials could not lac found criminally liable under state law for the subseytlent violat.iiculclr dispensary. ANALYSIS Based on the state law pro %; isions rof' renced above rel atitag to aiding and abetting, it does not seem that a local public cntily WOUld be 11able for any actions of a rnariittana dispensary In violation of state law. Since an ordinance ,luthori-rinj Illd 01- IV('Uhting into iitlana dispensaries would necessarily only be authorizing and/or regulating to the extent alre.idN' J7t Ti i1h'd by state law, Ideal elected officials could not be found to be aiding and ,abetting a i= 01ation ol'slate law. In fact, the %1\MP.,1 c1cai-Jv contemplates local regulation of tiispensarics. (Cal. I lealth & Safety Code sec. 1 1 62. ("Nothing in this article sh.11l prevent it cliv or other local L o\ erning body from adopting and eni(_lrcing Laws consistent with this article."}.) Moreover, as discussed aLove, there way be le ,islati� e ininlunity .ipplicable to the 1G,,is1.lt1v c .acts of Mcli\ idtial elected oliIcials in adopling .111 ol-dlJWlice, especially whore it is consistent \r ith state lav re<<-arding marijuana dispensaries that dispense crude marijuana as medicine. 1531, 1549 [evidence of lc,islatl%e .lists tL els esselatiA elenwnt of proof and thus immunity applies].) Therefore, a criminal prosecution that rel.ltc:. o/c/v to legislative acts cannot be maintained under the separation of powers rationale for legislative immunity. CEJ 2009 California Police Chiefs Assn. 37 All Rights Reserved QUESTION 4. Does approval of such an ordinance open fey 54+ i:; ti ; tcri,clves to civil or criminal liability? ANSWER 4. Approving an ordinance author)/flak' ur r: �til.�ii a ilk-11ilJ.KILiI.J ,ii ,t :i ,; is inaay subject the jurisdiciions to civil u - criminal liulji'iay. 1N M'SIS Under federal law, criminal liability is created solely by statute. (1)a+hng, i'. Ui71wd Siutes (IQNti .) 173 U.S. 207, 213.) Altltcatlgh becoming more rare. mLill icipailitics have been, alid still may be, criminally prosecuted Cot, E lolations of federal Iaw, \� here the federal lav provides not just a penalty for iniprisonnient, but a pcn,,iloi for monetary saimitions. (See Green, Stuart. P., The Crinuncil M,o,W rrtic.11 011ocal Gorcririnrw_y. 72 N.0L. Rei, 1 197 (1994) (discussion of history of municipal criminal prosecution)') The CSA prohibits 17crsons f-om cnLniging in certain acts, inckidin , the distribution and possession of Schedule l Sul}stvanccs, Of which marijuana is onc. t? 1 U.S.C. sec. 841) A person, for pati-poscs int the CSA, includes "any individual. corporation. government or goE erninciltal subdix ision or agency, business utast, partnership, association, or other lq,al entity." (7 1 C.F.R. see. 1100,01 (34). Sec also ? l C.F-R. sec. 1 )01.02 ["Any term used in this part shall have the .lct1nition set forth In section 102 of the Act 5.21 U -S -C - 80") or part _1300 of this chapter.").) By its \ ery terms, then, rhe CSA may 6c vinlaited by a local public entity. If the actions of a local public entity othen� -„iii 4N. the re+111-0111 plats Of Jidin and tbeltino a violation of the CSA, as discussed above, thcli 1,,,_1 public endues may, Indeed, be subject to criminal prosecution for a violation of fed cniI lag\%. Under either federal or state law, local public entities would not be sub -lect to civil liaibility for the mere adoption of an ordinance. a legislative aict. As discussed above. local legislaators are absolutely Miniune from civic livability for legislative ants under both federal and ,tate lass . In addition, there is specific immunity guider state law relating to any issuance or denial of permits. QUESTION 5. Dares the issti anrc ofai business license to a nraarliuruaaa chspelasaty involve any additional civil or criminal Liability for a city or county and ils elected governing bocly? ANSWER S. Local public entities will likely not be liable for the issuance of business licenses to marijuana dispensaries that plan to dispense crude marijuana as medicine. O 2009 California Police Chiefs Assn. 38 All Rights Reserved ANALYSIS Business licenses ar,; ialalxased by cities within the State of California oftentimes solely for revenue purposes, but aiv permitted by state law to be imposed for revenue, regulatory, or for both revenue and rc-.ui ilory purposes. (Ctrl. Gov. Code scc. 37101.) Assuniing a busincSs license ordinance is f01, rc%cntie purposes only, it seems that a local public: entity would not have atay lialaility fni the mere colleciican Lara tttr. v� 1aether tela le,al or fele f +.1 ,l:tivitics. llm e%er, any liability that w otild attach would be analyzed the saint Li . ii ,c ii xl .1' "t "_. In the f°ncl, a ideal public entity c,;tild hardly be said to have aided and abctk, d [h, li,tvi -,tid ( t or posy'-;,.) ,ia O 11110 miana in v ,lation of the CSA by its mere collection of �i el;e=.L1li1 1111,111 Lll,l tea.: WI :ill W'' '' Z, :l i l l i U a e d within the entity's jurisdiction. OVERALL FINDINGS All of the above farther exc.inpIItic5 the catch-22 in which local public entities arc catight, in tryin'tel l'ecolicIIc the CUAand MMPA, on the one hand, and the CSA on the arthcr. In IIght of the e�iwtevice ofthe CUA and the 11\,IPA, and the resulting fact that medical marijtttula is being rued by individuals in Cali tolrnia. 1+.:"cal public entities have a nccd .and desire to regulate the locaaticln and operation of medical iaaarijttana facilities within their jurisdiction.6 W-1 I Iowa cr- hccausc lythe dig erg-=eni views of the CSA and Califori-tKi law XvIlether there is any accepted "nictlical" use of marijuana, state and local legislators. is well as local public entities themselves, could be subject to criminal liability for the adoption of"statutes l,i- m-diminces furthering" tlae posscss1011. cultivation, distribution, transportation (.and other act prohibitrcl under the Cti,rti} as to marijuana. Whether Cederal prosccutors Nv":7t11d pursue, federal crinaincal char4-cs l,aitasi State :indiur local lei isl,ators or local public entities rem ilns to be seen. BLIt, l)asCd Ola ptast 171ac11ccs of laically based U.S, /Vtonieys who have required sci,cures of large tanaounts of m°ll ijuana belorc federal filinus have been initiated, this can probably be considered unlikely. d Several compilations of research regarding the impacts of marijuana dispensaries have been prepared by the California. Police Chicf"s .yssuciatlo)n and highlight some of the practical issues facing local publics entities in rc okilatinu the, 1;3cilitics. Links provided are as follows: "Riverside County 01 fice of the 1)istrici 1ttorney," [White Paper, Medical Marijuana: History and Current Complicatirins. September 2006];"Recent Information Regarding Marijuana acid Dispensaries [El C'crrito Police Department Memorandum, dated January 12, 2007. from Coniniandcr Nl- Regan, to Scutt C' ltiirldand, Chicf'of Police]; "\,I.i ijuanaMenloatrnduali" [E1 Cerrito Police. Deliartment Nisi o nindLim, d<atcd 1-117ri1 18, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief a"f 11olice]: '"Liao I.ntnrceanent Concerns to N, lcrlic:al \Iarijutiria Dispensaries" [Impacts oft ,\ledical laaiijtlanta l)islMnsaries on conanattaaiiics hciween 75,000 and 100,000 population: 5urvcv and council al�-,cndaa rgiort, City of I-i� crworej. cU 2009 California Police Chiefs Assn. 39 All Rights Reserved CONCLUSIONS In light of the United States Supreme Court's rlccision and reasoning in Gonzales v. Raich, the United States Supremacy Clause renders ('.al[Fornia.rs Compassionate Use Act of 1995 and Medical Marijuana Program Act of 2004 stispect. No state has the power to grant its citizens the right to violate federal law. People have been, and continue to hc, fcLierally prosecuted for inariluana crimes. The autharti ofthis White Paper conclude blit medical marijuana is not le, -,al under federal law, dc—, ltc ills current Call fornia schcine: and wait for the f-`nitcd States Supreme Court to ultinitately rule. on this issue. Furthermore, stored-ont imirijualabusincsscs are prey for cr i-runals ,Incl create easily identifiable victims. The people growing marijuana are employins= ilicgal Inearls to protect their valuable cash crops. Many dMrihuting marijuana are liardened criniinals.'"' Sevsral are members of stepped crin-iin,:al ;lC:' t {(-Von;gs ind recogni7ccl nrt=anI7ed rrltile syndicates, while others distributing mariluaia�j to the businesses are perfcct targets for thieves and rolil)crs. They ,are being ct,s aulted, robbed. -ind niurderccl. Tliose baayialg and using, medical marl.] Liana are ako 1ikmig victimized. Additional la. illegal so-callcd "111esileLal I1ltlrijuana dispcllsaries" Hats the potential fur creating liability issues fur counties anti cities. AAI marijuana dispLmsaries should generally he considered illepil and should not be permitted to exist and en�gagc in business \\ ialain a county's or city's borders. Their presence poses a clear violation of fcdcral and Iola 1::w,: tix'-\ IIIA ite more crime; and tlley compromise the health and welfare of law -ah 1cl1ng c :ti..:s, . 4) 2009 California Police Chiefs Assn. 40 All Rights Reserved ENDNOTES 1 U.S. Corl;t.. art. VI, cl. 2. 2 U.S. Collyi... ail. I, sec. 8, cl. 3.. �ilrrl rtic : I. Paic h (2005) 125 S.Ct. 2195 at p. 1204 (;c)nzale•.s v. Raich. See also United Sidles v. (7ul,iurui [:'crrrraui r. /31r},ei;r' Cbol)et-(Ititle (200t) 121 S.Ct. 1711. 1718. ' Raah ( 2005) 125 S.Ct. 219s,ee ako C `wlcc/ Start's I'. Oak/crfr(l ( ';,r nabis ,Btryet;s C'rWJ)1 rWN L' I _' I S.(:'t, I 11. 6 je)sh N.lrvel & ticott [ Flo\ er, "U.S. won't p, o,,ccwc Inc�iical pot sales." Los Angelcc 1"irrres, 19 March 2009. availal,l . ut I, [ I.,IIn,:_:..t ;l,_Ya a1'. I Ill nt�clhl l I'r 'l)lcYnl Il 19,ia. VM7571.stoKy 7 CC pi'i,Ir(i, ,,��. l I :VIII ;. ;ld ;::;:: c. ,. ,I" ,(,".lo:! 1 1.36_5(1)) [ l) (A). Ail references hereafter to the Health and Safety t. ?.xlc ale 17'.r' `,eCtIV[I 111111ibJ:I unly. I i &S Cade sec. i 1362.5(a). H&S Code see. 11362.7 et. seq. t ll& S (_ , xlc sec. 11362.7. I1&Lti Co ,res. 11362.71-11362.'6. I IL4S f_ odc ,cc. 11362.77. 1 IL,�ti f [,rdc ,esti. 11 ;62.765 and 11362.7?5' 1', ,y,Ir ? . 1 i--i� s air ii (_100) i 3 2 Cal ..11b1,.4:r 7 : ,I1 ;, -ti,c •. I leo S i_ Tide wcc. 113(b3.77: hciIier or not this ,ecliun i„I:ate; the Ca: I!orllia Coll i; Stu; ill! . 1111dCr 1'evier,t 1j_r, 01C (.';SI11UI•tlla 5uln•eme COL11t- See 1-COI)Ic I.. Kclll ('00;8) 4-? C'a1.lLlbtr..3.d 1.r;"' an,l ,"..•c,Ir1e IS - v, l'Idrlrphalall (2(1Om 85 Cal.Rpii- '[d W)3. Ile> Code secs. 11 ,57, 11 11359, 11360, 1 136(,, 1 1 ;r)6.5, and I I II&S Code pec. 11 3(0_7i1l) I:fs es a niorej ce,mplchentiiEc list _.AIDti .Il l•". .I ,r,`,Irlti;. c ache itt. C[Illccl", Clliollic 11nill, _Illatcollla Ill] L'.r[lillC, 17Cr51;ICnC El1lS5CIC:;17atilllti. Scl.'lll :1cll" !ILII'.. .l. ''.Id IlIOti Other Clirlrlllt 11 f7 Itii.itCnt 171CdIC;ll tiff ID1-Itl:nl that C1IIICF-,1117titalIti[tIh, IillIiI 1h it bill) I Ir i'r ill; iti ltlllCt t]nC ormure lice acsivitiea ias iiclincd in the ADAJ ,Ir ma}cause ti t.-ienl; Marna to th tiiifeiy of plivsical or wk..•rltlll health if llw i lt, ed. l• l'I opic v. ( 'ta)_) ":� C',d.4th 457 at p. 476. '" hl. I'll i.ti,Iddcd. Packel, Or t,,iml_atwo c?;i,l Opt ration ,,f Cooperatives, 5th ed. (Philadelphia: American Law Institute, 1 v 0), 4-5. ' I Sarn Stanton, "Pat Clubs, Seized Plants, New President—Marijuana's Future Is Hazy," Sacramento Bee. 7 I K-c,:lrthcr 2008, 19A. 1101 EI ,:,ItCi. ide list.. l(tp:::`canOrrn).or,T [1rtll7 chl'll:,I.1r1.4111. I mil•:I ll,_C'[ltire, "1=ulllill t %CT the Pot 01,11h,',." C'ctliji„ io I errni Flrr,>u.-rrbr, atlnc 1006. 11&['tn1�• wee. 1 132.7(, (C) .,uc, .' , Pt ('I'll' u.th.-Z? i�CIO li, I�e 'a1.App.4uh 74 i at p. 7 1. [;nrr-,r/r, l Rate lr, ,:rl1+r• .1i 11 tIL�c 211)i. +_1C4"M?I i till`) 132 Cal, AI)p- IL[I -Z 47: ,,cc aisc) I IS -,S [ odk: sec. 11362.765, [LAIC', tId ed. See. e -g., Mcilu1Q, 'l un)illg Over Pot Clubs," CalifomiaLawyerMagazine, June 2006. I I&S Code secs. l 136_'. �i c) and 11362.7(d)(1), (2),(3), and (e); see also People ev rel. Lungren v. Peron c 1,11171 tie) Cal 1 ,. 1395. lke)i c'r . _,\ t'.11--Ith :rt 476. Emph&os added. !Ilencla :1n,lersclll. 1 tl\ lams 11L! 1l,trijt.lan,l itlrtl Shift to IXC ,Ith: - Ulla 13e<itcn In 11ome; No Suspects but 0I11CFlis lielws 1:1l11n[x F.clntr:d ti) 1'0r i:.rl,)� 111 ,' S',rrrrrr Rosa Press f),iwfi.na, 1,1 ',:wcmber2005,. I,.;il:�lhlr:il 'iillp ,r l IIIriCr11[.CLrlu,a�)�)ti:1)bc:..Jli .Ir,l.l'". 1f) 'lt4?. I I P) M il'5 �I 1 !�]+l,rr 0,'J "ylcclical lkhtl_11UaM;l Sho11 [: +Fileell," .5rnrtra Bctrhora Inde p, na, m, 10 Aupu t 2008, availabie al til Marl. Sc,lralllclla, '"til, 6100d DCeti [ 10C.S I npalli'�hecl hick r ,,m i t2/1< t . fdver'tiser, 16 June 2004, as lilahlc. at Ill W: '.; . ,, !3lcu+:l. 0111 P Ilr, 1 rl_;,-•r,'":'.l `,lull @ 2009 California Police Chiefs Assn. 41 All Rights Reserved Ricci G:rni l ;m, "Pollee Arrest Swzpect in Deadly San Leandro Pot C1u1, i? ,i,izcr " Oakland Tribitine, 8 ltl Lillst 2000{ avai13bleathttp;_ 1111r1::r[t ,.,.l,coil,haticles/mi_n417615 -'+l i + ;: n16659257 Ricci (Iri11:11n, „Man Faces, %]Iirdet ['il tl . ' in Pelt Robbery," Oakland Trillonc. 24 :iu_l.lst 2005, available at htl:, 11111; irl!_I11 .:;iIII k Alii 4 II : -l!'! t133.hto " Ricci Graham. ":lilotht•r :114(li(:,rl ,llarijllana CIMIC i ollhecl," Oakland Tr'ihlrnt • t[{ ' cptember2005, aWiillablL' 1t tlll), II.ICII.Y 11� �`: Ct. tl:_1', .._;CII .i:'Irl ISI I .lit '.l{1�{I(JlO i1 t i's;�[Y`1 till h�.II[ 39LL1tlr a ( hiik, "Pon l )ispcitsal y ()\v 11(: 1, 'Stair) at I I(lllrc ( 'Airrh 17<rilr dovrvtcil- N::'. _ Iiiber 2i.,'.Y7, available at ht�ll nitrrll,,°:1l,ti 111 rtl.!: • If-d 4r11[11C-:a Llw-(kDktlt i;'. ;l-hOl', 11 all ;!' I.MiLl. Clark, -Brcakin ti '11,. Slc•cli�al Maritualla Supplier I,cs C'I;Il K'Wo 1 l ?.i; 1 , s,rl• r,, al, 19 No\cniller 200'. L.nlra (_'lal-k, -f-e; Ci-ane Mi.n'rler Inl c,ti atinn Coruillmti," F 7;iui; ?',rr`ri -+u n.i1, 27 Itioi ,1 Jllbc8- Mar'Illl wl i (.kiii-1 Sliol to l),211t11 .. S;!illa 1i:'�:.? L7rr!!nt rur. II'I,:! .'I+t1; ( 1Q!lrhi Anderson, "Pot Actirisl i_ikcly Kncvx Kilkir - Polis'.° `t.'Ir'. t' r I::I1,ell NVIIo R,II111rcl I- IN. (11t111Ie Mali 1 ,)null,lr 11 itll I tome", S,o to Ro,%,i Pr'essLkrrl,r, rr.. 'I1 No, t' 11 I'L,' '+; ! a', 1kII 1bll ,lt lilll, : {LS :111!111 1 L i I 1 4',.11tii II'l i4't1 it I'll K scar.uliell'I. --I Ile: 11011do Pol (.'1)1-onicles,''. bidel-Son Valley Advertiser, 3 Octubci 2007, avail l,,ie it .}.'h' ,., ..'.1 {i1,.;1� LL."1�4ll !'-_ (1i_i 4i_r:C1 tIi.11tml '1 klrl; Jolinyulr. 'hitlin , 11ighlightsRisk ofSellWii 11ar•ijlr.11la- i:vcin 1,cgally,"New York Times, 13 iv:xch 2011 7, it leilahlc :11 - h111 . ., ,. ;.11,111;1, , ct71n'?(}t,''ct3 021tts/0?canrttlbis.html"?�=11y1'• .ilr latt.titn-cf{i9;�36f1�) ttl ,i(}ti=5117[1 `r' 1:11111 :Abdol[Lih & Rich:lyd WIntan, "Pot Theft Claimed In Boy's, Slwotiit,, Uc-,Mh,„ Los. bi-c1cs Tim s, 23 January 2007. <1v;tilahle at 'lli.l,:11'1.i'•.',.(;Illll,l[il.,t;,_lCcl li.'t� r?11�111t II c� 4111r1�l.in l Illi=, I,•�` 1ir�?1i.ii" �.t'r1,lii[I_' t1�al Ll?tit '? Will Biglli1111. "Clarelllont 5lallitlalul 1]i;]1cllsary 13urglat'ized,'' 1111018) I ,111111 I )Gill' Bedlenn, 27 January -IOU7, �1lailablc iit'rlil.t,: www'.dnilybulletin :yin! ' 104514 as Plamiing Comriki ioii A ,eu(lo, :ll ailahl(- at')[q). +',1 -c l i'r,.t?r ; �cc :iko ;'Llan Lop:z, "El CErrriio moves to 11 '11) Di pcll..sal ieti_ [_ Urrlr rr [- rrcrtr TN+e'.1', 24 41110 2006, .1vLlI[L1`,IC; at lltlh; '.'.,,11 1111- ll 1'.il}. II [ "„11,!11 1161'1+ L-0011111*•111.1`.`1-4, .t .!I -CJ Ilt::h'.>-11111 'i ' C Lty 13a11s (-)LJJcLs Cur Nledi al Marijuana." Sita Gabriel Fallr l li'ilunrc. 17 _'4 --i,i .?bOG, astliM „ .�':_I-uk.org/lu i nic.l f 1i}F6SLt-?-1; , [ 't - 1-- t 'H;j.1;11 1, ,cat :0 ' f ,c I- '(,-I�-I1',Scbb a-uk.ar lc.,�,,snnl !e�.r{, 'Ll . - - ,(Mr t..r - 1� �l� (ir '_ 13rato, `.Pot [_'1!1 ;1 [1.,,1: 1: Are San I !a,lc1 :l!,' 1!li'JThreat to \.i-'1.I, ILtal3.3 `t'h'an 1llc 1)EA?"f+c',r.,rrrr lr,r_'.r:rrr, . Fchrlia '11111. ai.;!il.tlilc El[ 1. Steckler. ( +r, ,i 1''relnon[T'nlii ?1 :,1""rrt 1. rn;,+urrrlrr;+r rr ltCLlic,r! li,i rj ,r,+,r ')LIT rr:,+ rc !"alis) ',ccs ;Idcwl 1rr,l?,a, 11. _'t'i ,11:,_ l,)C?; p iso N IiIIOr. f_ 01. 111 . I n41hcim 1'4) lir':' 1?(yP r, 'r; :.;: a: i ?;'; r Iti;Nls 1)h ,rr .1le.11fe,rurr,11021 rr A1"dic:al llririll (ir+rr11)is1"(`)I,1:[i) }' r 11.111)) 11:1,1 i ]r',?r; i, r;?; :'. S .I'.ine _{;I}' lelI 1lct),111;l14.i. "15 lit:ld in ,';1!,i, 11;11 `"to;" i,. r; r`)ir.tic] ('rri,ul-li ibune, 7 July 2006, available at nyandi<< ,,..r n., ntwt.htrrtl ' !�1t:I.J[,ilal�l:I3,"rrlU. I1 ,�.ti t_'otic sec. 11 lr)'.5, I'th'iii Stc:,n,lrl. --Thc Mcdlt.,al Marijunnn 1'lovc'nictit G[•ow s in Santa Barbara. Emerald Breams and �Iniokti' h.:,ltlliv S'..vufi h'ar hrrr,a 1111111 r+rrlc'++t, i 11111NO r, :n i111.1h1c at 1,uiv lirk:..l .'ll�:,. lll.�.,Y1111:-'•.0 •-'. %1:1, ii !!11`.11, L�•Ir!. IV Illii "n,f1 �11ll11-'.'I�!,\L,ti-ti(t[ll3173r1yi►r•al; see also It aw Ashton, "DEA BUNIN POI Sidor 1)'i l t'tcr Colin,, ii 1-alk,,. Modesto Fier. 28 September 2006. McDonald. -3 StC'Nl art. ;4 Ste:l.alt. ' Stewart. \ational E7r2l�-T Intelliwcncc C'elltcr, 00117CSfic C'Crrarrrllil' ('iil;ii ati,rn .ls essinew 2007, February 2007-, ar aiiabte at ilt[ti L i._.,,. 1:111. t :1I .'. la\un \',in DMockeii, Charlie Goo(lvcar.:.1c i6cltel Gordon, "3 S.P- POt [:'1111 s, Rai(lccl In Probe of( Ir-.2aniic'd �,m Francisco C'i„ m1 '1,-_ 23 June 2005, available;it Imp n11.;tr7atc.tt)1u ai-hiti:tlrticl,_.cPi'.'lilc c a 200-- M, ' MNGR.()i)I)(i3 LDTL; LAPD repoit iii) ?rnlation, 2007. 0 2009 California. Police Chiefs Assn. 42 Ail Rights Reserved V,in Derbckcll, c - ,rl. Bate Heneroty. "Medical marijuana indictment unsealed," Jurist, 24 June 2045, available at i _,�i!I s�.ln. ._ ll v: ,(J05106:'medic.al-rotiriitiarta-indic_tMnent-unsealod.nhn; Stacy Fll,,"19 Nml), rd in .Vcdit irtal I'm IlldIctm nt: More Than 9,300 Marijuana Plants Were Seized in Raids," f i urr,. i c r, (10 r;rrir 1, , 3 1 June 3005, availahlc ut :l•'Ii1�'.I,�,ri:L"01111 .01i::lr.c�*i°lilt- � I)lig;:irCr24.FRA(`i V', i)h(�'4CI.DTL 2222 -- - -_- - - ()t r:rnlr Cd f rimy u.11l.t In L.111Ii rnra," Ptishinghack. 29 li1lt11ithiL' III l �.lh hIl<il llc: l..�t fll`l�?..,, lll•tii7lli ?7.ii ;: .II�'lll �f.)!}i,, il�' 'cl !;_�'\� "A`it, [ JIV o 4ttr1 [.rlce:u. Crime S"'l urml,'00 ... .:i L,I I .II 1'171': Nltto[Ia1 I?itl IIIIelli,-,tinct.. Ue k:r, :1lei l-il r,,r . J,, lu. '001 ; 'a r .l: I irKl:.. 11 %VNX'.IIsdui [Icy?r�_e 1 I, A,ick (i;wIn the R2 !,c A-_:'llrl I I�.illi.r'nl_ ',- t t gun l [eritta'nrl�t—(.:Ins�ti Na]It-lIIIcll IIl (.ir•owlllc? 11oI'i t}I [)Inti I i-,IdC" ir-+,;;:• / ' ?i ? •r;r. .�I' it 2'.1+(11. 11 Ill Il !dram, 1 Imi;es UiAed to ;1;1:111 C;:ln,_s- liaall"l � :i!, I OffiI. 13itr?. ; .Cptelwi '60''.. at;Ii1:lh[L� at L_IIL+. d-Lid'.1 tll!!'tlll.�aim:'I;c',1 f,9600,N2, ' 13ighiuill 1 Illl)cl 'till?.. Fs Feds Caille aI)d iV nt- \tits 1'. ;1 :' News, 30 Jun c•'0W,'- cIl,lil:lh1e ,il. htll,_Unc'.,..hllllltll;.,_,.,nl ,1r liI LAPD [�q)orr tilomberDR rt:i(rtlli'S{I;il;. lur?ttst2006- I_AI'D Rcpui :~timber DR,iO(llk,250i 1 1- r...'1 irli ivfilier, ( 1tY of Anaheim Police 1), 1:1 rllcm: ")hctiial t7p1,1-atiolls C)Mslon .11rrlltlr:111tlur1l re NhL;_ijLI0Ml C)1;l}e11'0It (VINIT)) t3:lr' [Orin' ; 25 Oclobcr 3006-1 Johll:on, f Cal""I, tit�t'ki�'t. f. Itt rIl' Fremont Police Dk:p,iiirnent; Memorandkim re 'Qetlic.al ti�larijuana Dispensaries - Potential Se�•tlnci�in- impacts, 20 Juni: 20(1. `I[+IIItSOn. I ,1;1tt111- 11'lltit 11:; tide U.S_ 1)1,:1 :aid afloat Inttll .II il,I1:M1unl" \Ialijualla 00) 1 'A\ hat ll,t; Ietieral law ell COI Ceinellt said :rlu ttt Inrdir.Ii ,lis: ijl::ta �1,': ic11 1larijttana ProCvn.ol ,- 22009, y ' 1211} IlO!}t„0 Jinn ,111`.,1, "'Ilarijtim-I.I 11 illatlsil;llY: (-,Ops slo, 'I _�:trlf_•+_l ( vinic Is Sem lnLa l=,imllies Into the Suburbs to 61r-mv 1f.lrijuana.` ABC N,2w.S, IT ILlne 2007. wi!I .t.)'. ' L,,ll [:,Lil.•:1>,to.cr, ' :11 da: Anastasia;"DFA l..l: l; 1li.imi (li-o.l I ,:tl,._. +. 13S5.eom, 30 ,1pril 2l)lJa. al,ttlahle at ',li'n• L: - �m.rlrtti�,n;ll L_ ' , .1,, , I'. _ ,- I ln�l�t,ll,l. Hi-ImIll. '-7 3rl}tcnli7cr 'Ll{J7: Ethan 13;iron. "rin cl 1-Mic:.l , t I%,w-op,” The Province (CNBGI. 22 Mery ,'005, ,l�Lill:lble it. iit;p: I.I',':.lii.rl"•Iai.,�!�, •I_'.1 S1� 1 :ai'.hll'll lii._,h:. m, 3 Sq)1cnlhcr2(0 Iii.1hain, 23 Sqmr&Ln- 2t10? - I leather ;Men. 1IItl'1i atm Gi-t111 I1tltl�,eti i 10UPS11 a; tittuthticst Florida Market Drops," HeraldTribune.corn, 24 July 007, :I1 111,1h1e al Ilillz. C.iliis! li 11^l,' i.%I 7 llli!_Iw 'l)il If '-} `"-..[ �I} f)J 1ti I'sie [3tlil 'y 'inll. Tine ltctt"1111 lrl- "11'hcrc filar} bloc i� the :Lirl nc:\( door," 10 !rt t ltr.5 Times, 31 May '_{)I}�, ❑1,tllahle .It h.1h li".t; l�>l.l,iii!il+_`J..��,I!P 'i}fli;I1l,'r� ., I �� _,11 I�1�-I''+[-� I - R1 Eur�l:.a I Itiwt [ irc the lac;telt t.,l' You-kiio11-t1 h:tt.' lllr+rrbohli Crtall•, .1,',r ytl,teltll.�er 2008, available at lltty: 11C +.1 AMoll lelll'dl-la tit Aicat'ili Police t loci It:w(k \Iem(It i,a, I March 2009. J1J,:K irfla'v, "Manitt.ln l I itithcti RCre:ri; tin \ tctll, incl l 'c " ,1; II. 1'„r•k. Times, 9 June 2009, at 111.11:,Ie .I1 11ti[-i. tiwlv.nrtinIcs.ct.!I11 _1olix fYolw) ti sr pot. llt ill l"-' 1- _ I chem&-cr -1 213329 OVI,tlties: l ire [);1111 + .c 1101id.t1• '1'I.0 IjIlMl:l i rfON, 11i1111C, (:Illl}i:lf a' - 'i!tll. 15 i t:bruary 2008, available at Iklll Rli:lllc, "l;row Houses Can Imptic't 1 11 1 liv 13111~- 1'111)1X' ti;alett. "%ctl;-irlcss-conn, 12 April 2008, Xl 11latlie tit Imp:_. p:N,ti .dll 11::1,: '11t 'Ini';1 ri l .1`,111 ''"[A_A 12AIds %1iiml Grow Hutt:;c." Sandy Loucv, "An—cAs Tike Toll on Loc:ll (i.tlt,�• ?:'.ll,,� .ti,n ruslt�wo Bee, 14 August 2008, availahlc at Imp ..,iwww.sactiew.Coll 101k,tulL V-,PTIEll. ',tOIV I t 23,1UJ111111, 'Avila. @ 2009 California Police Chiefs Assn. 43 All Rights Reserved 88 Scott Glover, "Morro Bay Pot Dispensary Owner Found Guilty of Federal Charges," Las Angeles Times, 6 August 2008, available at l rrp //articles.l_atinies,coml2008/aug106/locallme pot6 89 Bailey and Reiterman. 90 ]anis Ramsay, "Special Report: i:jrov, _„l, I fouse Can Still Be Dream Homc: 1tcalLor Says,” The Barrie Advance, 25 August 2008, available at Imp- ww.mat?t x_ l d tis n +` :. [V 1: attc, iltml 91 Avila. 92 Bailey and Reitertnarn. 93 Steve Davis, "Grow Sccm-IL[ '." C'ami(d,ix C'iihuru Magazine, 6 All -illi[ 2004.'� L111,1blc at. llttp 1%Nww.cannat3i5clilturr:.cuni`iarlicl4 4-:_I_ himl 94 Bailey and Reiterman. 95' See People v. Urziceanu, 132 Cal.AppAih 747. 96 City of Pleasant Hill Presentation to Its Nanning C_ultm issiun by I'lanning Division Staff on April 24, 2007. 97 Office Consolldmion: By-law 361-2004 of the City of Brampton, Ontario, Canada. 98 Bill MCCollullt. "Landmark Bill Taruetin- Marijuana Grow l f oki,;cs Becomes Law," Attorney General Bill McCollum Nw Release, 17 .111nc 2000, ,i\ ail�ihlt at hul): .\I-.\1v71.2B('C1688D18525746B0070D23B -A,,lan Gangs Move Grow -ops," The .l. ,im ?'.r .ill. POsr, 27 September 2007, available at .,.411 wm iii; -)lust L"111 hi�lrt�tl {lltl(1(rt!tl;_-1,ian _*row U�35. t1U .17 [ i. 711 100 See Asian bangs \;Love Grow -ops. 10' See "Does Marijuana Contribute to Psychotic Illnesses?" Current Psychiatry Online 6(2), February 2007. 102 See, e.g,, Californiapolicecluets.c3rg>'nayr45carult'ursilnan� e,.html 103 National Drug Intelligence Center.. 02009 California Police Chiefs Assn. 44 All Rights Reserved NON -LEGAL REFERENCES Abdollah, Tami, and Richard Winton. "Pot Theft Claimed in Boy's Shooting Death," Los Angeles Times, 23 January 2007. Retrieved January 8, 2009, from http://NvNvw.califoniiapolicechiefs.or Ig nay filesllnariauana tiles/bellflower shooting death.Ldf Allen. I leather. 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L().s : iir}c°/c s Tiines, 6 August 2008 Retr1cvcot J� iivarv' 8, 21009, from llttL):/Ayd� ,_ ! tern ti �4 m I ti__1_ lt-dl_f 1.'_it _-.! iatb-'(lily _t lac, 1�.:' I004.story Graham, Ricci. "Man Faces Murder Charge in Pot Robbery." Oakland Tribune, 24 August 2005. Retrieved February 28, 2009 from httL)-.,,-/w«v\v.liighbeam.com/doc/tP2-7021933.hti-nI Graham. Ricci. "Another Medical Mar puana Clinic Robbed." Oakland Tribune, 10 Scp(ein er 2005. Retrieved February 24, '009, from http.iitin�l.art<< 1 cntrt/pl�trticicsltt�i_c�et-'. l i,. 200509.101ai_n 15809189/print Graham, Ricci.-Ilolic: 2 ,arrest Suspect in Deadly San Leandro Post Club Robbery." Oakland 7i,ibane, 8 August 2000. Retrieved 1-ebruar,, 24. 2009, from ht[L):,,,I-iii(iai-ticies.com/i)/articics,iiii gn4170; is�200(i SOSiai_n16659257 Heneroty, Kate. "Medical Marijuana Indictment Unsealed." Jurist, 24 June 2005. Retrieved January 8. 21001), from tial)-.,' dui i:t _l;s t '. �" i tl.wAIU 1). l is:; . i} , ::: "� Yf i y.'( .16/medical-1m triiLFan�t-indictment-unsealedphn .1c�llnsotl. Kirk. -Killin� i 11-llll flits R-sk of Scll'nQ Ml irlivann. Even Le- llv." Xc°,c llrr1c Tinie.s. 13 Marc k 2007. Retrieved January S. 200.9, from ijiio _ s\ v,-,w-nytimes.com/2007/03/02iusi 02cannabis. htnil'lex=1IS 1880000&en=c6099'36094a d(15150 ci -j070 LAPD Report Information, 2007. LAPD Report Number DR#060625000, 16 August 2006, LAPD Report Number DR#060625001, 16 August 2006. Lopez, Alan. "El Cerrito Moves to Ban Cannabis Clubs." Contra Costa Tunes, 6 January 2008. Retrieved January 8, 2009, frons http://w�vw.tlic-ministry.ttet/fonim/archive/el-cerrito-moves-to-ban-cannabis-clubs-6974.htni @ 2009 California Police Chiefs Assn, 47 All Rights Reserved Louey, Sandy. "Arrests Take Toll on Local Gang." The Sacramento Bee, 14 August 2008. Rerieved January 8, 2009, from littp://www.sacbec,con/clkgrove/v-print/story11152310.hxrni McClure, Laura. "Fuming Over the Pot Clubs." CalijOrnia Lwti er 2005. McCollum, Bill. "Landiiiark 13111 Far�ct.iii- Manl'tiana Grow 110LlScs Becomes Law," Attorney General Bill McCollum News Release, 17 RHIC 2008. Retrieved January fir, 2009. from lattp:I myt7oi idale�,il.�(zin'nei sr el.nst''newsreleascs, 1 Al 7k 2BCC 1688D I SS21 � 74 i 7()i)� ; i3 McDonald, Jeff. "15 Herld in Raid-, on Pot Stores," San Diego Union -Tribune, 7 July 2006. Retrieved February 24. 21009, irtirn http://www.sig,nonsanclic�,t!.coiii iniontrib/20060707/news 7rn7pot.htm1 McKinley, Jesse. "Marijuana Hotbed Retreats on Medicinal Use." New York Times, 9 June 2008. Retrie vecl \,-kir ch 19, 2009, Crom ltlit�; 1 'I'.��; int c�.�� Irl �{it�w.'QG1091us109pot.html`� r=1&em=&ex-1213329 "Medical Marijuana Shop Robbed." Santa Barbara Independent, 10 August 2006. Retrieved January 9. 2009, from littfa ' 11 Jcpcndent.com/news12006/aug/10/medical-inarijuaria-shop-robbed/ Meyer, Josh, and Scott Glover. "U.S. Won't Prosecute Medical Pot Sales," 19 March 2009. Retrieved March 21, 2009, from httl)://www,latinaes.coiaytiews local/la-nie-iiedpotl9-2009inarl9,0,4987*�71.stoa i I lcr, Tim. Citi,nf it 1; 'icf.,ii v 17epa viniciii: Spcc la/ Opc•i•criions Division Memorandum re Medical 11i.:i: i limier 'r 41 c ,i it ti i /.i/1Dj Bari (1i clmance, 25 October 2006. National Drug Intelligence Ceti Ikr. (ls.ti'C'.1'.1'fl enc 7007, 25 February 2007. Retric� ,--d JaHWP A ?. ' oo9, lrom liq://www.usdp.go0i(!i. ,ulas? 1/'. 41)6. t 11-lco Consolidation: By-laA -;x.71-'iW4 of th7: Ct;i ou of the City of Brampton, 22 Novenabcr 2004. "Or-"mi/.ed Crinis 13cliInd `Medical' Marijuana Dispensary in California." Pushingback, 29 September '006. Retrieved January 9, 2009, from llttp:/,ptrsl-�ingback.coiniblo�,s,pushiiig back%irchive'2006/09/29/791.asp Ortega, Fred. "City Bans Outlets for Medical Marijuana," San Gabriel Valley Tribune, 28 .August 2006. Retrieved January Vii, 2009, from http://kvN\ 1\ .tca uk.ora:'ical'orunyviewtopic.lihp`1f=6&t=2436&staart=0&sid=15b6dal 15a0da43facb44l95cbb 0 2009 California Police Chiefs Assn. 48 All Rights Reserved Packel, Israel. The Organization and Operation of Cooperatives, 4`h ed. Philadelphia: American Law Institute, 1970. Ramsay, Janis. "Special Report: Grow -op House Can Still Be Dream Home: Realtor Says_" The Barrie Advance, 25 August 2008. Retrieved January9, 2009, from het ://�v��.�.ma inc.�3r,'iint st7ewslv081n2i18iaC]6.htm1 Ruane, Don. "Grow Houses Can Impact Utility Bills, Public Safety." News-press.com, 12 April 2008. Retrieved January 9, 2009, from hqp://www.news-press.com/apps/pbes.dll/article?AID=/20080412/NE WSO 103/804120394 Scaramella, Mark. "The Mendo Pot Chronicles. Anderson Valley Advertiser, 3 October 2007. Retrieved January 9, 2009, from http://www.tlteava.comi07/1003-mendopot.htartl Scaramella, Mark. "No Good Deed Goes Unpunished." Anderson Dalley Advertiser, 16 June 2004. Retrieved January 9, 2009, from littp://wwNv.tlieava.cotn/04/0616-cerelli.htttil Stanton, Sam. "Pot Clubs, Seized Plants, Nc�v President—Marijuana's Future Is; llaiy." S acr aancnto Bee, 7 December 2008, 19.\. Steckler, Craig T. City of'Fremont Police Deperj-tiric,art .Memorandum re Medical Marijuana Dispensaries – Potential Secondary Lnpac ts, 20 June 2006. Stewart, Ethan. (2007, May 3). "The Medical Marijuana Movement Grows in Santa Barbara: L;tnerAd Dreams and Smoky Realities." Santa Barbara Independent," 3 May 2007. Reli-ier ed .l ulua v (). 2009, from 2007 medie.al-marijuana-movement grows -saner barbaral Van Derbeken. ,taxon, Charlie Goodye >> . ,,ti,d 1' iicli _,I �.F. pot clubs raided in probe of orl-aniz, td crime." San Fj� ao,_ , ,,1, r ;.,; ;,ri rc , 21 JL)11 _, u f?ciri�-•\ �t�-i .i,ttluary 9, 2009, from http:iiwww.sfizate.com/c` -- icle.cl;i.'tite: _ 3RQQQC 321.QTL "What has federal law enforcement said about medical marijuana?" Medical Marijuana ProCon.org, 2009, Retrieved February 24, 2009, from hltp_//tncdiealmarijuana.procon.or+w.,,iewanswers.asp'?questiotill:) 1)( 10630 "What has the U.S. DEA said about medical mariju ula'1' �lcilic al il'I iriju4t�ur 1't r�C"cnt-r�r j, ?cl[)5. © 2009 California Police Chiefs Assn. 49 All Rights Reserved ATTACHMENT B Public Safety Issues Related to Medical Marijuana in Orange County Page 83 PUBLIC SAFETY . ISSUES RELATED TO' MEDICALS MARIJUANA IN ORANGE COUNTY Orange- CGunty Chiefs of Police and Sherds Association Tine 2, 2014 ATTACHMENT Page 84 Acknowledgentetas Orange County Chiefs of Police and Sheriff's Association working group on Medical Marijuana in Orange County. Alex Bastreri, Fullerton Police Department Sanely Bodnar, Fountain Valley Police Department CJ Bradley, Fullerton Pofice Department Ted Burnett, Orange County District Attorney's Office Ron Coopman, Westminster Police Department Robert Coites, Fountain Valley Police Department Todd Ellin, Garden Geove Police Department Craig Ftlescu, Anaheim Police Department John Gaffney, Drug Cnforcement Administration Les Gogerty, Costa Mesa Police Department B Leiva, Garden Grove Police Department Martin Mayer, Jones and Mayer Law Firm. Mike rMcCny, Santa Aria Police Department Mary McElderry, Drug Fnforeement Administration Carel Mone, Orange County District Attorney's Office JeffNoble, Irvine Police Department Tire Olsou, Scat Beach Police Department Scott Pagel, Drug .Enforcement Administration Ross Peterson, Orange Police Department Adam Powell, Orange County Sheriffs Deptrrtrnent Jaen Stauffer, Garden Grove Police Department Torsi Tatpley, Tustin PoJ ice Department Chuck Tlioinas, Huntington Beach Police Department Robert Thorsen, Grange Police Department Jim Tibbetts, Brea Police Department `Wayne Minters, City of Orange, City Attorney's Office Page 85 The Orange County Chiefs of Police and Sheriff's Association (OCCSA) recognizes that medical marijuana dispensaries and its related issues can have an impact on public safety in Orange County. Agencies are receiving reports of significatit crimes, (robberies, burglaries, assaults), occurring at or .in the immediate area of dispensaries. These businesses have been known to associate with organized criminal gangs, receive their product (inarijuaria.) from large sophisticated groin operations and are receiving a significant financial profit. Orange County communities and citizens are asking law enforcement to address these pod other related Issues, As such, the OCCSA has implemented a working group to analyze tine issue and give potential tools to remedy identified public safety concerns. The mission of the working group is to: Idcnt � potendat pul lic safety issues of medical rnarijunna and possible Sohilions to thave issuer. The p imary fonts will be on the applicable criminal raid civil Iaws, dispensaries and deliveq businesses. The purpose o,,;i'the commrtlee is not to consider the medicinal values of mar yamaa. Medical Marijuana Laws To understand the public safety issues of medical marijuana dispensaries and delivery services it is important to understand the history and current status of the related laws. In 1996, "The Compassionate Use Act" (CUA), was passed by fire Voters of California. The CUA decriminalized inarijuana possession and cultivation for specific patients or their primary caregiver. Basically, the CUA Provides an affirmative defense against cultivation and possession of cannabis for a patient's personal medical treatment, with the oral or written recommendation of a physician. in addition, the patient's primary =,egivw is provided the same protections. The Act was codified in Health and Safety Code t 1362.5, which specifically states, to "ensure that seriously ill Californians have the fight to obtain aard use inarijuasta for medical purposes where that medicul use is deemed appropriate and has been recommended by, a physician who has determined that (lie person's health would benefit froax the use of marijuana," and to "ensure that patients, and their primary caregivers who obtain and use marijuana t.'oy medical purposes upon the recommendation of aphysician are not subjectto ctiminai prosecution or sanction." Under federal law, marijuaaia is classified as a Schedule 1 drug, which means it has no recognized medical use. Iia 2005, the United States Supreme Court riled in Gori, -ales v, faith that the federal Controlled Substances Act is valid even as applied to the usv of marijuana for personal medical use on the advice of a physician, While the ruling states marijuana remains illegal under federal lase, the ruling has no direct impact on California lawxelating to medical marijuana. Page 86 In 2003, tire. California State Legislature. passed Senate Bill 470, which became the Medical Marijudna Propra to (FviM.p) and took ef%ct on January 1, 2004. The -W4P further defined the definition of "patient" and "primary caregiver". It required the California Department. of PubRe Elcaidi to establish and manage a program for the voluntary registration of qualified medical marijuana patients and their primary caregivers ilirougti a statewide identification card system. Medical marijuana identification cards are intended to help jaw enforcement officers identify and verify that cardholders are able to cultivate, possess, and transport medical marijuana without being subject to attest. The Calitiarnia Department of Health Services (CDHS) manages the State's Nil'.. Each county is responsible for implementing f icir own Medical Mtrijuaina Program. Orange County haat named their program the Medical. Marijuana. Identification Card Program (MMIQ} Omnge County residents'may access the MMIC through the Public Health Services — Heath Care Agency website, htt //ochealthitafo,comhnmic. Each coral bas a unique identification number, which can be verified by law enfoircement through a database (wv wxailmu p. ov), The MMP also established limits on the amount of marijuana and plants.a single qualified .person could possess (Iicalth and Safety Code 11-362,77). The 11rlMP states qualified patients and primmy caregivers may possess 8 oz. of dried marijuana, and may maintain no more thati 6 mature or 12 ist,tnatiire plants per qualified patient. Irl addition, a doctor - may recommend additional amounts of marijuana to treat a specific patient's condition. Additionally, counties and cities could adopt local regulations that allowed qualified persons to possess nicdical marijuana in amounts exceeding the above possession guidelines. This section of the MMP was found to be an unconstitutional amendment of Proposition 215, which does not quantify the marijuana a patient may possess (People V. Kelly [20081). Thus; for the purposes of a criminal prosecution, the Section 11.362.77 limitations are inapplicable. The prosecutor Inst prove that the amount possessed was not reasonably related to the defondnafs current medical needs. And, because the CUA provides an Zfirtnadve defenso,•tife defendant bears the burden of providing evidence on that issue. However, the CUA docs riot provide a ppatectton agalnsl uYmsl -- which was var, of thr: stated piaposes of the &W. As such, to the extent that the NEW .limits the quttntit-y of marijuana (8 ounces, 6 mature ,plants or l2 immature plants) a person may have to prevent an arrest for possession ar cultivation, those limits are viable:. Accordingly, -tile litiiits may still be used by law enforcement to determine whether they have legal authority to arrest a person —protection from arrest is provided only for biose LVDH card holders who comply with the quantity limitations of Health and Satcty Gone 11362.77 (Sea SeGtion 11362.71(e)). After arrest, it will be up to the prosecutor to determine whether the defendant has a potential affirmative defense to a criminal prosecution under the "reasonaGleiiess'" standard - and then uta to the defendant to provide evidence supporting the difference. Page 87 As it relates to dispensary or storefront marijuana distribution, the NIMP created a /united Affirmative defense to criminal prosecution for qualifying individuals (patients and caregivers) that eol[ectivcly gather to cultivate medical marijuana and froze criminal sanctions for conduct such as possession, possession for sale, transportation, sate, furnishing, cultivation, and maintenance of places for storage, use or distribution of marijuana for- a person who qualifies as a "patient," a "primary Caregiver," or as a nrternber of a legally recognized " eo operative," as defined Within the statutory scheme, However, there is no law or .provision that expressly authorizes or protects the establishment of a storefront marijuana distribution business. The CUA authorized a patient or a patient's 'Idesignated primary caregiver" to cultivate and possess cannabis for the patients' medical use. As such, marijuana "dispensaries' started to talzca root in cotmmunitics. Operators were designated as a "primary caregiver" by "patients" -- often by the hundreds and even thousands. As the "caregiver % the dispensary operator would provide medical marijuana to the `°patients" for a fee. However, the CUA did riot authorize any individual or entity (phalmacy, cannabis buyers' clubs or dispensaries) to sell, or even give, cannabis to a patient or caregiver. In fact, the California Supreme Court rtded that a person whose "care giving" consists principally of supplying marijuana and instmr,,Ong on its use, and who otlxerwi:se only sporadically takes sonic patients to rnedica[ appointmenw, cannot qualify as 'a "primary caregiver" under the CUA. (People V. Mentelr (2008). Specifically, a "primary caregiver" mustprove that they: Conssistently provide care giving. - 1adependeflt of any assistance in taking'med cal marijuana, At or before the time he/she assumed responsibility for assisting with medical inarijuana. A primary caregiver must he the prine;pal, lead, or central person responsible for rendering assistance i -L tite provision of daily life oemgs[tles. The TMW also addressed "primary caregivers" and provided a specific de lidos. Fader Health and Safety Cade 113f2.7(d), "primary caregiver means the individual, designated by a qualified patient or by a person with an identification card, `4vbo has consisteritly assuined responsibility for the housing, health, or safety o.f that patient or person." Lav enfomenivat agencies should also be aware of the enurt decision ifam City of Garden Grove v. Superior Court. 'T'[ze Court ruled a defendant figs a dire process right udder the W4r' Amendment to (lie return of property where the marijuana was found to be lawfully possessed with the meaning of the CUA and/or the MMP. Defetndants requesting that marijuana be returned to them should be directed to obtain a court order for the return. If obtained, the, court order should be foltowed by the lawn enforcement agency. A number of Orangc County law enforcement Rgericies have returned matijuana to defendants of various criminal marijuana cases. Collectives and collaborative Since the .Mmtch decision, medical marijuana storefrnrlts have essentially stopped the practice of. identifying themselves as "primary caregivers." Iiowever, the IuiMP recognizes that patients and caregivers finny associate in order to collectively or cooperatively cultivate medical knarijuana. Specifically, the MMP added Health and Safety code 11362.775, which provides that "patients and caregivers who associate within the State of California in order to collectively or cooperatively cultivate ma'rijuan'a for medical purposes, shall not solely on the basis of that fact -be subject to state criminal sanctions" for the crimes of inarijuarza possession, possession for sale, transportation, sale, fumishing, cultivation, -and maintenance of places for storage, use, or distribution of marijuana. Zypically medical marijuana storefronts in Orange County -operate under the Madel or title of a "Collective or "Cooperative." In August 2008, the Califorrda Attorney General's office issued "Guidelines for the Security and Nan -diversion of Marijuana Grown for Medical Use." http:�Cag.ca.goy/ems netaGl�trentslpressl cll~s1n16Uf rnet{realmEte•i'tianaguidelisces.pdf, The AG's Guidelines stated that a '"cooperative" is a Iegal entity. As such, they must°file articles of hicorporation with the state and conduct its business for the mutual benefit of its inembers. 'It must follow strict rules on organization, articles, elections, add distriirution of earnings, and must report individual transactions from individual meinbeta each year - The AG Guidelines also addressed a "collective;" which is not defined under California law. The AG's Guidelines states a "collective" should be an organization that merely Facilitates the collaborative efforts of patient and caregiver members. According to the guidelines neither collectives nor cooperatives should purchase cannabis from, or sell to, lion -members. The guidelines also suggested Practices for operating "collective growing operations" including; - Non -Profit o Nothing allows coiiectives, cooperatives or individuals to profit from the sale or distr[bution of marijuana. .Business Licenses, Sales Tax, and Seller's -Permits The State Board of Equalization determined medical €narijuana transactions are subject to sales tax, - Membership Application and Verification a Suggests a written application. a Verification of tike individual's -status as a qualifted praticnt or primary caregiver. o F1ave the individual agree not to distribQte lnarijtrana to nari-members. 0 have -the individual agree not to use the marijuana for airier thwi medical purposes. 6 Pages 88 Page 89 o Maintain membership records on-site or reasonably available. o Track tnetnber's medical marijuana renommendation. cc ElforCe conditions of membership, Permissible Reimbursements and Allocations: Marijuana grown at a collective/corporative €or medical purposes may be: a Provided'free to members. o Provided in exchange For services rendered. o Allocated based on .Fees that are reasonably calculated to cover overhead costs and operathig expenses. As noted above, nothing in the CUA or IvlNIV expressly allows for the storefront sales of marijuana: in 01 -tinge County these stoiefronts have used the titles of "dispensaries', "collectives" , "cooperatives" and "alternative health care" to name a few. Typically, these businesses distribute/sell marijuana outside of Calit'omia law. As.noted previously, California Stine law, specifically the CUA under Health and ,Safety code 11362.5 and the NAV under Health and Safety Code sections 11362.7 through If 362.83, ,provides an afflmaativv defemo to charges of possession or cultivation of mari3uaaa for individuals who !rave_ a physician's recommendation for the use of marijuana to treat specified illnesses, or their primary earegivers_ However, this aifiientative defense does not apply to any storefront operation in which titers is (fie distribution or sale of tnadjaana, except in limited circumstances where persons with a valid physician's recommendation or their primary caregivers associate to collectively or coupernilvely cultivate mar#urma tnr fnedicat purposes. Outside of these parameters, a storefront is most likely an illegal operation. The simple act of having a customer sign a membership form (collective or otherwise), acid selling niarijtiana rvithouf:.any other relationship to cultivate marijuana is likely illegal. Inve=stigations have revealed these Acirefronis are involved in the illegal distribution and sale of marijuana for money and not the simple possession of marijuana by qualificd patients wrd dzeir primacy caregivers for ttie personal medical purposes of the patient. Page 90 Medical Nbriivaiis Disneusaries and Wiver•y Services Medical marijuana dispensaries and delivery services in Orange County consistently advertise their services . on internet sites such as littp-Jilegalme'rijiLmiadisL)ensary.com/, h t6//w-ww.canorm(.nrp/, www.weedmatis.com and it, the QCWeekly publication. There is even a mobile telephone application, iPot, to locate rnarijuana dispensaries. Mang are, operating out of locations that do not specifically advertise their business as a medical marijuana Business, such as natural herbs or health food stores. There arc even dispensary colleges to educate business owners on operadng dispensaries. Two are located in Los Angeles - Dispensary University and Oaksterdarn University and two in Orange County - Cannabis State in Sunset Beach and. Otherside Farms in Costa Mesa. Frequentivv, these dispensaries have close business relationships with, physicians who specialize in providing exauunations of peopllu seeku g a medical marijuana 1'ecartttrxetidatticn. Dispensaries have distributed advertising flyers and discount coupons for physiciatas. Delivery scl'vices appear to be increasing in numbers as more law enforcement agencies are taking enfDi cement action aga3ihst dispensaries. The associated public safety concerns can bG just as significant as with a dispensary. Anecdotal ovidpnce suggrsts that many crimes associated with delivery services go unreported to law enforcement. Local licensing and other legal business requirements are rarely followed. Identifying and heating these delivery busluesses can he difficult for agencies. Law enforcement officials estimated at the end of 2009 that there were between 600-800 dispensaries in"the City of Los Angeles alone (Las Angeles Times estimated 965). There are approximately 60-80 in bong Beach. The Los Angeles Police Department and the Los Angeles District Attorney's Office have taken an aggressive enforcement position with regards to these dispensaries. The following page Iists the number of ?mown Medical Marijuana Dispensaries (85) and delivery services (14) in Orange County as of January 1, 2010. It is important to understand that the number and locations of dispensaries ;and delivery services in Drange Courity changas ft -c }ueadt r. Page 91 Orange County Meriical P&Hjuaua Dispensaries and Delivery Services Jurisdiction Number of Vajown dumber of Known Medical Marijuana Medical Marijuana Dispensaries Delivery Services Aliso Viejo 0 0 Anaheim 5 5 Brca D 0 Buena Park p 0 Costa Mesa lZ 4 Cypress 0 0 Dana Point 5 0 Four►taisi Valley 1 0 Fullerton 0 0 Garden Grave 3 0 Huntington Beach 0 0 Irvine 3 0 La Habxa 0 0 LaPalroa 0 0 Laguna Beach 0 0 Laguna Hills 2 0 Laguna Niguel 3 0 Laguna Woods D 0 Labe Forest t l 0 Los Alamitos 0 0 MisKsion 'Viejo 0 0 Newport Beach 2 0 (]range 2 0 Placentia 0 0 Rancho -Santa Margarita 0 0 San. Clemente 0 0 Sari .mart Capistrano Q 0 Santa Ana 31 5 Seal Beech .... Stanton 0 0 Tustin 0 0 Unincorporated Coujrty 6 0 Area Villa Park 0 0 Westminster 0 .-D Yorba Linda 0 0 Orange County totals 85 14 Page 92 Public Snfety Inctlents iii Gran ee Connty To understand tate impact on public safety, it is valuable to know about specific experiences law enforcement agencies, have had with dispensaries and delivery services. The incidents help-to.put a perspective on the seriousness of the issue. The Following are descriptions of actuak incidents: Costa Iylesa • An Individual who owned a legitimate massage establishment rented a quite directly across from a business alleged to he dispensing martitiona. The massage business reported they could stncll the burning marijuana permeating their business and wanted to relocate their massage business. However, Costa Mesa currently has a moratorium on .massage establisht cents and therefore the business is unable to relocate. A business owner rented u suite in a business complex that is surrounded by several businesses allegedly involved in dispensing Enarijuana, The business owner reported a high volurne of font traffic and the munerous "clientele*' on the premises were negatively impacting their business. Therefore, the business owrit r plans to relovate the business, Huntington Berteh An undercover police detective attempted to buy medical rnarijuana ft•ortl a medical marijuana, dispensary, Ile was told he would first need to obtain a recamrnendation from a physiciari. The dispensary employee gave tate detective a single -page flyer advertising a physician who could provide the required recommendation. The flyer included a dlscount coupon for the physiciatr's services. The detective visited the physician's office expecting an examination. Instead, the detective completed a short medical questionnaire, spoke with the physician foes less than five minutes and then was given a recommendation carol. There was tra physical examination. There were no standard medical equipment (blood pressure muifit6rkbfP, stethoscope) devices and no medical certificates displayed. The detective had just told the physician of previous headaches and (hat when lie, detective, smoked marijuana tie headaches went away. The physician agreed that marijuana was good for headaches. However, the physician told the detective lie would need to return to the doctor in three months for another examination. They detective paid the physician $175.00 which included a 25% discount since the detective had the flyer. -The; detective was then able -to - return to the dispensary and. purchase marijuana. Police detectives received information them was going to be a "424 Darty" at a local tobacco products, or "smolce shop", business, "420" is a slang term referring to marijuana. The party was to include live entertainrnerrt and an illegal raffle The business was not licensed or permiUcd for any of these activities. Detectives Brea Page 93 advised the busilless that the planned party would be illegal. The business agreed to.xiot host the event. However, the business did hold a rnarijuana party at a vacant storefrotit adjacent to the smoke shop. This party inciuded a physician who` would provide an examination, for a fee, and then issue a medical marUuana rccorttmeridation card. The doctor described himself as a "careuiver." After receiving the card the detectives would be able to purchase marijuana from a printed price fist inside the business. The business was having a "Valentines day" special. several weeks later, detectives made oontact with a person working at the business and arranged fora delivery of medical marijuana to a local hotel. An individual contacted the city about a business permit for a medical madjuatra dispensary. He was told the city had an ordinance prohibiting such establislunents. He opened up a dispensary anyway under the guise of a -fond shop selling brownies, popcorn, etc. The paperwork he provided was falsified and the plroducts were laced with marijuana. One of the Bma Police Department narcotics detectives saw the business's advertisement an the Internet. The detective obtained a marijuana recommendation card frorn a physician in Lake Forest. With that recommendation card, the detective purchased marijuana at the shop at current street level prices. The individual was charged with municipal cock violations and felony sales. Yorlba Linda • Detectives received nuuncrous complaints of a business that had excessive foot traffic and the smelt of burning marijuana. The location was not licensed for any type of business thfough the City. Detectives entered the business under the guise of being p'ospective customers. The entrance was monitared by cameras and -a manned cage. Once inside, alae detectives locked down the business and obtained a search warrant. While waiting for the search warrant, numerous males, 18-25 years old, with no obvious physical ailments were turned away. One individual arrived with a back -pack full of marijuana with the purpose of selling to the business, Pie and two people working the counter were arrested for sales. Property records turned up fictitious Maines for the actual lessee and the true business owner was never located. The case on the two counter workers trailed for over a year in cilminal court. The defendants had .free legal council from NoRKE ('The National Organization for the Reform ofiVl'arijuana Laws) who brought people on crutches and in wheel chairs into court. * Brea Police [crated a -subject hom Laky; Elsinore malting deliveries of marijuana to Orange County with his first step being Yorba Linda. He was looatod on the irtternet. He was arrested after a controlled bury in the east znd of the city. Il Oran 'IhG East Hills Patient Association applied for a business license tax application, However, the business did not fully diselme its Intentions of providing medicinal marijuana. Tlie lie ense clearly stipulated "No retail sales." 'Me applicant indicated on the application the business was: providing consultation and general services to outpatient and elderly patients. Tine applicant clearly stated he would not be a tuarWana dispensary. At a tater time, detectives observed an. advertisement in the CC Weekly publication reference the same locativti distributing marijuana. The advertisement also indicated a discowited price for first tame customers, Detectives created a frauduletrt physician recommeridation -card, which listed a fictitious doctor's natne. Detectives entered the business, .ua an undercover capacity, l rovided the recommendation card to the business metier and were instructed to wait in the lobby while the tegitimacy was confuxrrcd. Tire business operator called the phone number provided on the fraudulent recommendation, which was another detective's phone number, and inquired if the patient/detective was provided with the recnrtimendation card. The other detective, who was waiting in a vehicle outside of the business, confirmed onhis cell phone, the padentldetective's rcw-mmendation was tegitimate. The patient/deteotive was escorted to a secured room. The detective did not see any uniformed security present dueing the entire transaction. The room passessed a display case, which contained several different types of catmabis. There was an exchange of U.S. cunenry for marijuana, which was ui violation of .the Orange Municipal Cade. A criminal. complaint ivas ultimately filed through, the Superior Caru't. Doto tives received a "We -Tip" report about the Orange County Healing Patients Association. Detectives learned there was no existing license fbr that tocation and the business owner attempted to cirownvent the system by not applying for a City of ❑Lnuge business tax license. Detwtivee entered tiro business, itr an undercover capacity, to detunivna whedier or not they were operating a medicinal cannabis dispensary. Detectives created a fraudulent physician recommendation card, which listed a fictitious doctor's name. The fictitious recoinmetrdadon card was provided and the patient/detective, was able to purchase marijuana, The seller was cited for Business Tax Certificate code violation. Although it was difficult to determine whether or not customers lead a legitiinate physical disability or illness, the average patllcnts entering the businesses while detectives were present was in their early twenties. During the hours of surveillance, detectives did not see anyone enter the business with the assistance of a walkiirg cane. crutch, 4vheelrhair, or caregiver. 12 Page 94 Fullerton Page 95 On February 13, 20(x$ at about 1100 hours, police detectives inspected several Cannabis Dispensaries operating in the City of Venice, California. 'These locations wire published on the " NORML" .web site. In an undercover capacity, detectives entered a two-story building with a sign reading "Medical Kush." Detectives did not see any wheelchair access to the second floor, Detectives were told.by a receptionist that a doctor was on site and the detective could he examined that day. The detective was told that if "qualified", the detective would receive a medical marijuana card, which would enable the detective to purchase medical marijuana at their location in Venice or any location in the State of California. The detective filled out the medical questionnaire and'was told to produce a valid photo identification card. Tho detective provided a photo ID card which had been issued by the North Orange County School of Continuing Education_ The detective ,,Jas escorted to a room to be interviewed by a mate -who identified himsdif as a physician. Tater the detective was able to confirm the doctor was, iii fact, a licensed physician and surgeon iu good standing, The intervicwlexainination lasted 3-5 minutes. The detective told the doctor he wanted at .medical marijuana card so he could tegally possess marijuana. Fla told the doctor he smoked marijuana when he woke up in the morning with a sore neck ant' also found marijuana helpful when having difficulty sleeping at night. The doctor told the detective lie qualified under -tatr: law to TisP medical marijuana to treat his medical conditions and suggested eating marijuana as opposed to smoking it. The detective asked the doctor how much marijuana he would need to eat to feet relief from his medical coitditioias. The doctor told h m. he did not know and suggested that he experiment with marijuana to. determine the correct dose. The detective returned to the reception area where he paid $75.00 for a laminated Medical Marijuana Card. Thc. price of the cards ranged froin $75.00 for 3 -months to $140.00 for 12 -months The detective was allowed access to the dispensary and smoking room. He saw live -or six yow)g people who appeared io he in their late teens or early twenties lying on sofas smoking caiittabis. A Iemale behind a P(exigtas window showed the detective various samples of mitrijuatia apd hashish. He purchased 1l8 mince of marijuana for $60.00, which was marketed as "Orange Cush"". 1 D also s selected a mall amou►it of hashish which.he was charged an additional $40,00. Tile sale was not rung up on a cash rugistar or computer and he was not offered a receipt for the transaction. A detective called "CC Private Caregivers" 949-887-7246. Ile had obtained this phone number from the "HOWL" web site as one of 19 services that delivers medical, marijuana in Grange County. The detective spoke, to a subject who ideizk fled himself as "Jeff'. The detective told "Jeff"' that he had a medical marijuana cat'd iGsued to him by a physician and wanted to order marijuana. Jeff told him that lie could usually deliver anyevhere in Orange County within one hour, depetiding on flee current traffic conditions. Jeff said his service is open 13 Page 96 from l0orn tol2am, 7 days -a -week. Re said that he was running a "Valentines Special" today filial die dctcotive could save $40.00 rift' (hc purvhasu ofan ounu; of roadipana. The detective ordered out; ounce of marijuana for $300.00. The detective obtained a room at a local motel and vvaited for the delivery of his order. A short time later, a male arrived at the motel carrying a clipboard. This subject identified himself as "Tim", The police surveillance tenin itnd observed the subject: arrive in a 1.994 Mercede513cny, "Tim" entered the motel room and the detective presented him with the medical marijuana card. "Turin verified the detective had $390.00 in cash and exited the room telling him that the marijuana was in his car_ He. returned a_ shdrt time later carrying two white paper bags that contained two round plastic pill vials with marijuana. Patrol officers were dispatched to a Ioeation in regards to a shooting that just occurred, One subject, who had been shot multiple times, was down on the street and was holding a handgun. Officers arrived and found this subject still alive and still iu possession of the handgun. There was also a plastic bag near him which containdd approximately three ounces of marijuana. He was safely detained and transported for medical treatment. A second shooting victim had driven himself out of the nclgitborhood to a gas station at Harbor and Bastanchury, OfAcers located .hire and he was also transported for medical care dile to a single gim shot wound to his chest. liivestigators discovered that. both shooting Victims had arrived at the location together and were shot during an attempted drug deiil. The two "victims" attempted to rob the dope 'dealer of 'bis Medical Marijuana. Further investigation vevenled that (lie two "victims" were La. Habra gang inernbers. The shooterldope dealer in this case was later arrested and charged with two counts of attempted murder and drug charges. Both shooting victims survived and the initial shooting victim is paralyzed. Grange County Sheriff`s Department Deputies were dispatched to an alarm call at a medical marijuana dispensary business. Upon their arrival, deputies saw three suspects runnliig away :iron the business. Whin a fury minutes, four suspects vicre taken into custody. The investigation revealed that the suspects tunneled into the business from an adjoining Business while wearing gloves and ski masks. According; to the disperisnry owner, the business had been burglad7.ed two weeps prior. The owner did not report the break-in, in which a safe containing $20,000 of zoadjuatia.was stolen. As a result of the first burglary, lie owner installed the alarm system that resulted in the arrests during the second burglary. 14 Page 97 A Dome invEision robbery occurred at a residence in an unincorporated area of Santa Aala. 'fire robbery stolraIIed firoln tine vidian culti voting naarijaana- at tine residence. ' In addition, the victim was involved in suppiying a collective and operating a marijuaria delivery service. At ].-DO ANI, the victfm woke up when fie heard the, side door of his residence forced open. ivlornents Later, two suspects attacked the victim inside the master bedroom area. The victim was struck numerous times around the head area with a tire, iron. The assailants then tied up tho victim with duct tape. The victim was asked repeatedly by the assailants about the marijuana and other items relating to marijuana sales. The suspects ransacked the house and fled with approximately three- pobnds of recently harvested niarljuana, electronics, and mise_ itorns. The victim had a fully operational indoor hydroponic marijuana grow located in the residence. The marijuana grow was found in two .separate rooms. Marijuana plants and processed marijuana were found. The marijuana grow included sophisticated ventilation, hydrating, fertilizing and lighting systems. Tho victim cfaimed tc be a member of a. marijuana collective with a medical marijuana license. Items relating to the suspected illegal cultivation and sales of marijuana, including a large amount of US currency were collected by Sherjffs7 Investigators. • An investigation and search warrants tied to dispensaries in Laguna Niguel and Irvine lcd to the owner's residence in Nellie Gail (Laguna Mills). At the location, investigators found PVC containers with mud on Vie outside. Inside the containers, they found packaging consistent with bulk money la=deriug. A further search of the residence revealed «ver .S 100,040 in currency. During •the -search at the Irvine storefront, documents showing a storage unit rental in Ladera Bunch were -identified. Investigators obtained a search warrant for the location the same evening. A, search of the unit located additional PVC contaiizers and over $200,000 in currency. Documentation and physical evidence demonstrated the owners were burying the PVC containers with built currency in their backyard. • A number of undercover investigators have received medical marijuana rccommendations from various doctors throughout Grange County. In some instances doctors who advertise their cannabis service on-line will not issue a recornmendatlon without a diagnosis from another physician. The "cannabis doctor" conducts a cursory review of diagnoses and prescriptions records Groin the prior treating physician. The "cannabis doctoz" concurs with the diagtiosrs, and then writes a recommendation for medical. marijuma, Other doctors that specialize in marijuana recornrricrndations will diagliose and rccornmend from their office or rented hotel rooms. In every case tl3ese doctor's provide 24/7 recornnrendation verification Cor dispensaries, which is a 15 Page 98 significant selling point. With round-the-clock verlfcaticn, eustatners believe they. do not need to obtain a State Medicai Marijuana Card. The Sheriff's Department investigative process has resulted in search warrant setvice for seven dispensaries in Lake Forest, Laguna Miguel, Dana Paint, Irvine and Ilninenrporaled La Sabra, In addition, each -storefront has a number of residertees related to each location. While post seizure analysis is being. conducted on many of these iavestigatioas, two locations have resulted in case filings. In addition, * suspects have pled guilty to various charges with one operator pleading to a four year prison term. A police, informant repoi4ed there had been an armed "takeover" robbery at,a medical marijuana dispensary. The business had not reported the crime. The loss included maffluana, cash and personal records. When contacted by the police, the dispensary operators, after some time, confirmed the crime had occurred. However, the operators refused to provide any detaifs of the crime or.coaperate with the investigation. 16 Page 99 Related Governmental Agencies and. their Potential Imnact on the Issite The State Board of Equalization, Franchise Tax Hoard and the Califomia Medical Board ail have a uriigtte role wken dealing with medical marijuana. It is buportan.t to understand Cie requirements and restrictions each -of these agencies. must follow. The foilowing are descriptions of areas of jyrisdiction relating to the issue: STAIR BOARD OFEQUALLZAnQN According to the Board of Equalization (BOE), the retail sale of medical marijuana does require a seller to obtain a permit and pay sales tax. The BOR has always cot:sidered medical- marijuana taxable and began issuing permits in 2005. The BOE also indicated that medical warilutiA dispensaries do not qualify for an exemption under Sales and Use Tax Regulation' 1591-, because the FDA has not approved medical marijuana as a medicine. The BOE does actively follow-up on businesses that have not obtained the required seIler's permits undA.-r have rot pail! thein ss Its tan, including medical marijuana dispensaries. 'file BOE, is currently involved in a "door to door". program to ensure compliance. RANCHI,SE !AIR -OA RD According to the Franchise Tax Board (FTB), any business, including a medical inadjuana dispensary, ►rust elect their business structure, e,g. sole proprietorship, partnership, LLC etc.., and then file their income tax in accordance with the specifications established for the stt-uctute selected. If the PTR learns that a particular business is not: filing their income tax returns, they will follow-up to ensure compliance and take potential legal action. CAMMQRMA NJE➢ICAC BQARD The Medical Board of California has provided a written statement on www.s edl,d.ca. nv a��erl.cal Mar uana.hw)i eegardiug physicians who ch-OONz to participate in the implementation of the Compassionate Use Act. The Board's position is: "Dry November 5, 1996, the people of California passed Prol)oxiti5n 215. Through this Initiative Aleasure^, Section 11362,5 was added to the Ifealih cue Safety Code, and is also known as lire Comparshmate Uve .,,tct of 1996 77ae purjm.ses of I.F:e ,ort include, in part: "(f2J To emure that .seriously ill Californians have the r[ght to obtain and use maeijucma for nw&ral purposes where rhe medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit f om the use of mar uana in the tj eotment of cancer, anorexia, AMS, chronk pexin, spasiici4glaucowa, ar!hritis, migeaine, or any other illness for which 777e11•yruyrra provides rchaf, and VIA Page 100 A To ensure that patients and their primaty caregivers who Obtain acrd use marYu6na for madical purposes upon the recommendation of aphysician w -e not subject M rilmina1 prosecution or sanction. " , punished, or deremarry Yahl or prir+ilege &c havi a mcommended-»radiuw- a- ro a anent for medical m posm " - The: MMical Board of California developed this statement since medical madjuana is aii emerging treatment modality. The Medical Board wants to assure physicians who chouse to recommend inedicaI marijuana to thei_patients, as )Fal of their regulpr practice o pe. that trey WELL NOT be subteot to investigation or di8glDlinm action by tha MEC if thew arrive at the decision to make this recofgmendation. in Becordance with aerepted standards of rnvdicat xesponsibiki , Tire mere receipt of a complaint that the physician is recommending medical marijuana will not generate an invesEigation absent additional infon-nation indicating that the physician is not adhering to accepted medical standards. 'These accepted standards are the same as any reasonable and prudent physiefan would fallow when recommending or approving any other medication, and include the following,. STAM ARDS OF CARP, L History and good faith examination of the patient. 2. Development of a treatment plan with objectives. I Provision of inforined consent including discussion- of side effects. 4. Periodic review of the.traatmenfs efficacy. 5. Consultation, as necessary. E. l'r[apCr record keeping that •aupports the dpvssiotz to recomt ternd the ease of :redicai mari.juanns. In other words, if physicians use the same care in recommending medical mariiuima. to proms as they would recommending or approving any other medication, they have nothing to fear from the Medical Board. Here are sone imp_nxtant,points to consider when madjunna.- 1. Although it could trigger federal action, making a recommendation in writinvo the patient wilt not trigger action by the Medical Board of California. 2. A patient need not have failed on all standard medicadalls, in order for a physician to recommend or approve the use of medical marijuana. 1s Page 14'1 3, The physioian should determine that medical madjgana use isnot maslcing an acute or trcltiMo progressive cQndition, or that such use will lend to a worsening of the patient's condition. 4. The Act names certain medical conditions for which medical marijuana may be useful, although physicians are not limited in %heir secommendaiions to those speck conditians. In all cases, the physician should base his/her detetrttination on the results of clinical trials, if availabta, raedical literature and reports, or on experience of that physician or other physicians, or on credible patient reports. In all cases, the physician must detemnino that -the risklbene€it ratio of medical rrcarijuana is as good, or better, than other medications it -tat could be. used. for that iadividual patient, 5. A physician who is not the primary treating physician may still recommend medical marijuana for a patient's symptoms. I3owever, it is incumbent upon that physician to consult with ttte patient=s primary treating physician or obtain the appl-opriate patient records to confirm the pat?ent's underlying diagnosis and prior treatmerd.history. 6. The initial examination for'the condition for which rnedicO marijuana is being recommended must be in-person. 7. Reromtnerrdatioas should be Urnited to the time necessary to appropriately monitor the patient. Periodic reviews should occur and be documentedd at least annually or more fmqucntly as warranted. S. If a physician recommends or approves the use of medical marijuana for a minor, the parents or legal guardians must be fully hiformed of the; risks and benefits of sucli use and must consent to that use. Physicians may wish to refer io CMA's ON-CALL Document #11315 titled "The Compassionate Use Act of 1996", updated annuatly for additional information and guidancc: 1 ttl .,1Mus_err'igftet.v��/bavks;c�i�recvnerrIl��rrrlC ur�inli13I3�clf7crrll iyutnbex-=.1315&CF,.rD=74.S764&C'FTOKE'N1 27566287). Although the Cotupassionatc'Use Act allows the use of medical marijuana by a patient upon the recommendation or approval of a physician, California physicians should boar in mind that marijuana is listed in Schedule I of the federal Controlled Substances Act, which [Weans that it has no accepted medical use under fbderal law, However, in Conant y. Walters (9th Cir.2402) F.3d 629_ the lJriitcd States Court of A�pcals recognized that physicians have a c_oilstitutiotially-p ntected .ri 1 t to discuss .mica[ marfluana as a treattnetit nation wital their ati nts- and make oral or written rccomrnandaL[ on for rn.cdieal mariivaga. However, the court cmutioned that physicians could exceed the scope of this coristitauallal Protection if they conspire with, or aid and abet, their paticuts in obtaining inedical marijuana. Depat•lrrre> t off" Health Cal eS'e�vices I C al oe rater Deperrtmett[ Public 5eallh_ 4:FXli&7da IGfedical1larU2Lana Program 19 Page 102 If the Medical Board of California (MBC) Complaint Unit receives a complaint directed towards a physician, and believes the accusations pertaining to the physician's conduct has not met the applicable standards of care, they vvill initiate an investigation. The investigative unit will detemihie whether or not the physiclan is Adhering to the Standards of Care, which are listed and highlighted in red on Page 2. In addition, they will determine if the physician is making decisions based on what a reasonable physician would do based on the same training and experience. Upon conclusion of the MHC ,complaint unit's, investigation, they will forward theist findings, if applicable, to the Attorney General's (AG) offsce For review. The AG's will present their case to the Administrative Law Judge, who will mace a determination. no Medical Hoard will thein impose disciplinary actions against the physician. Those disciplinary actions include, but are not limited to the following: administrative penalties, fines, probation, suspension, and revocatior: of licenses. I'utthe mere, in regards to physicians recommending the use of medicinal oxinabis to their patients, they shall adhere to the previously listed eight items of "Consideration". Local Orange County Law Entiorcerrnent officers should contact the a MBC office to address local -complaints and initiate a parat€el investigation, which wilt be conducted by the Medical Board Complaint Unit. The M13C has the discretion to investigate and. must, believe there is substantial evidence of criminal conduct or conduct that fails to meet their appropriate standards of care. 20 Page 103 StratclZies to Address Associated Public Safe issues .Regulation of ]slid use — this can be one of tlxe njost effectiva means of regulating -dispensaries and delivery services. Recent case law has supported the efforts of cities and counties to regulate or prohibit these businesses. Cites and counties have a legal right to ban dispensaries and delivery services with the establishment of zoning ordinances. At least 80 California cities and G cot►nties have enacted taws. banning dispensaries. The courts have ruled that cities and counties may not create an ordinance that is in conflict: with State or Federal law (California Gove,myrient Code 37104). Investigate and. prosecute illegal dispensaries and delivery services — these investigations are usually time and labor intensive,. however, can be productive in clkninating a specific business within a jurisdiction. Fast investigations have found these businesses. possessing weapons, significant cash and links to organized crime. The target of these investigations should be to identify who is supplying t>ie marijuana, who is operating the dispensary, who is profiting, is tite dispensary engaging in over-ttie-counter marijuana sales and the dispensary is not associating to collectively or cooperatively cultivate marijuana for medical purposes. A critical r.ompotrent: of the investigation is for the law enforcement agency to contact and collaborate with the district attorney's office at the start of tho investigation. There may also be the need to contact the agency's city actorn.ey if Iocal ordinances and/or land use issues will be involved. Note: As of February of 2069, the Drug Enforcement Administration will not pursue criminal investigations involving inaeijuana dispensaries If the dispensaries are following State laws. • Collaborate with other law cnforcemeat agencies — operators of marijuana dispensaries and delivety services tend to move From jurisdiction to jurisdiction. Orange County law cafat�cerrrent should capitalize on its long history of County- -- wide collaboration and community support to address all the related issues, • Provide training to law enforcement personnel — 1,_A. Clear/141I]TA provides it training class. "Illegal Medical Marijuana Dispensarics Investigations" (ww)M.lahidtatrainina.ora] and the Los Angeles SheriT- s Department hosts training on "Medical .Marijuana for Patrol Officers" (gdwalsb@Ansd.org). 13A classes can be highly-heneficial. • Resources "White Paper on Marijuana Dispensaries" by tate California police Chiefs Association's Task i'orce on Marijuana Dispensaries h_,tt�t;//wsvw.callt'orniapolicechieCs.ar� 21 ATTACHMENT C ACC -QC Report on Cannabis Use & Cultivation Policies r IW,& -3 A, . AS.sociATIoN of (.A[-]F()RNIA CITIr5 ORANGE COUNTY eHUB Research Title: Cannabis Use & Cultivation Policies 11/2/15 Requester: Association of California Cities — Orange County ACC -OC Staff: Joey Garcia Last Revised: 11/23/15 AssociATIoN OFCALIFORNIACITIES ORANGE COUNTY eHUB Research Title: Cannabis Use & Cultivation Policies 11/2/15 Background: This survey was conducted by ACC -OC in response to the growing saliency of cannabis use by Orange County residents and by upcoming California legislation implementation of AB 243, Wood, Medical Marijuana. ACC -OC Summary: With 15 respondents, we found the following information: • 14 cities have taken steps to address marijuana dispensaries • 7 cities provided a copy of their ordinances • Santa Ana is most active in the development of Cannabis Dispensaries policy o Require business license o Limited Zoning a Limited hours o Conducted community outreach o Conducted business outreach • 4 cities have more specifically defined cannabis • 4 cities have issues moratoriums on dispensaries On Cannabis Cultivation • 11 cities prohibit use and cultivation through zoning and land use 0 10 cities have had such ordinances in place before 2015 o Proactive response to salient issue • 14 cities have taken action to prohibit or regulate cannabis in response to AB 243 0 11 ban land use through ordinance or zoning n Steps taken to address AB 243 vary from city to city ■ 4 explicitly define cultivation ■ 6 explicitly ban the use of land for cultivation ■ 7 cities are currently discussing further action Documents Procured • Fullerton Cannabis Code • Cypress Cannabis Code • Laguna Cannabis Code • Laguna Hills Cannabis Code (Separate Attachment) • Santa Ana Cannabis Code (Separate Attachment) • Stanton Cannabis Code • Villa Park Cannabis Code Policy Development in City Councils Included THE ONLINE RESOURCE FOR GOOD PUBLIC POLICY ASSOCIATION OF CALIFORNIA []TIES ORANGE COUNTY Contents Council Development....................................................................................... Have Cities Responded to Cannabis Dispensaries?......................................... Breakdown of Answers................................................................................ What Actions Have Cities Taken?......................................................... Breakdownof Answers................................................................................ OtherResponses.......................................................................................... Reason for No Action or Further Action.......................................................... Breakdown of Answers................................................................................ OtherResponses.......................................................................................... AB243 Response.............................................................................................. Breakdown of Answers................................................................................ OtherResponses.......................................................................................... CypressCode...... .............................................................................................. FullertonCode.................................................................................................. LagunaBeach Code.......................................................................................... StantonCode.................................................................................................... Villa Park.......................................................................................................... Respondents.................................................................................................... ............................................ 4 ............................................ 6 ............................................ 6 ............................................ 7 ............................................ 7 ............................................ 7 ............................................ 9 ............................................ 9 ............................................ 9 ..........................................10 ..........................................10 ..........................................10 ..........................................11 ..........................................12 .................................13 ..........................................14 ..........................................1s ..........................................16 .m 1 lit UNLINt KtJVUKI.,t ASSOCIATION OF CALIFORNIA CITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY 3 Council Development 1114/15 Aliso Vielo Moratorium Agenda Location: Discussion Title: Local Implementing Regulations Regarding Medical Cannabis Uses and Interim Moratorium Ordinance r Recommendation: Adopt an interim urgency ordinance of the city council of Aliso Viejo, California, enacted pursuant to California government code section 65858 establishing a temporary moratorium on cannabis dispensaries, cannabis manufacturers, and the cultivation and delivery of cannabis pending the completion of studies and the preparation of an update to the city's municipal and zoning codes; and Give direction on the development of long-term regulation and/or bans of cannabis 11/15/15 Fullerton Define Cannabis Cultivation Y Agenda Location: Public Hearing Title: Resolution of Intention — Ordnance Amendment to Title 15 — Medical Cannabis Cultivation Y Recommendation: Resolution no. 2015-xx — a resolution of the city council of the city of Fullerton, California, to consider amendments to title 15 of the Fullerton municipal code to create and modify definitions for medical cannabis cultivation 11/17/15 Fountain Valley Ban All Use Includine Cultivation Y Agenda Location: Consent Y Title: Conduct A Public Hearing To Consider The Introduction Of An Ordinance Titled "An Ordinance Of The City Council Of The City Of Fountain Valley Adding Chapter 8.60 "Medical Marijuana" To The Fountain Valley Municipal Code Prohibiting All Types Of Commercial Recommendation: Land uses associated with medical marijuana are not permitted in the city. Recently enacted state laws reaffirm the ability of cities to regulate and/or ban medical marijuana, but also require cities to enact affirmative bans to prohibit certain medical marijuana uses. Proposed for council's consideration is an ordinance affirmatively banning commercial medical marijuana activity, including cultivation and delivery of medical marijuana? The ordinance also bans cultivation of medical marijuana for personal use. 11/18/15 Aliso Viejo Ban Cultivation Agenda Location: Discussion Title: Ordinance Prohibiting Cannabis Dispensaries and Cannabis Manufacturing, Cultivation, and Delivery Recommendation: Introduce and approve the first reading of an ordinance entitled: an ordinance of the city council of the City of Aliso Viejo prohibiting cannabis dispensaries and cannabis manufacturing, cultivation, and delivery THE ONLINE. RESOURCE FoR GOOD PUBLIC POLICY 4 ASSOCIATION OF CALIFORNIA CITIES ORANGE COUNTY 11/24/15 Buena Park Ban All Use Including Cultivation Y Agenda Location: New Business Y Title: Interim Urgency Ordinance Adoption — Prohibition of All Commercial Medical Marijuana Uses Including Delivery and Cultivation Y Recommendation: To adopt an interim urgency ordinance prohibiting all commercial medical marijuana uses including deliveryand cultivation. Recommended Action: 1) Adopt an ordinance prohibiting all commercial medical marijuana uses including delivery, storage, and cultivation, by adoption of an interim urgency ordinance pursuant to California Government Code 65858. 11/24/15 Newport Beach Ban All Use Includine Cultivation Y Agenda Location: Consent Y Title: Second Reading and Adoption of Ordinance No. 2015-33 Imposing An Express Ban on Marijuana Cultivation, Marijuana Processing, Marijuana Delivery, and Marijuana Dispensaries in the City i- Recommendation: Conduct second reading and adopt Ordinance No. 2015-33, An Ordinance of the City Council of the City of Newport Beach, California, Imposing an Express Ban on Marijuana Cultivation, Marijuana Processing, Marijuana Delivery, and Marijuana Dispensaries in the City. THE ONLINE RESOURCE ASSOCINOfCALIFORNIACITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY Have Cities Responded to Cannabis Dispensaries? Breakdown of Answers Has your organization taken steps to address cannabis use or cannabis dispensaries in. response to public concerns? Response Response Answer Options Percent Count Yes 93.3% 14 No 6.7% 1 answered question 15 skipped question Q ................. . Has your organization taken steps to address cannabis use or cannabis dispensaries in response to public concerns? &7% MOR NIX) LmHUBI�� THE ONLINE RESOURCE FOP Goon PUBLIC POLICY 2 hPtx: ulu.ln nr OCIATION DF CALIFORNIA CITIES RANGE COUNTY What Actions Have Cities Taken? Breakdown of Answers What action(s) has your city taken or will take in the next 30 days? Check all that apply Answer Options Response Response Response Count Define cannabis use separate from smoking or tobacco 26.7% 4 use Issue a moratorium on cannabis dispensaries 26.7% 4 Require business licences for cannabis dispensaries 6.7% 1 Limit operating hours for cannabis dispensaries 6.7°% 1 Limit areas of operation (zoning) for cannabis dispensaries 20.0% 3 Inform cannabis dispensaries of regulations 6.7% 1 Issue cease and desist letters 20.0% 3 Community forum on cannabis dispensaries 13.3% 2 Reduced enforcement on cannabis use 0.0% 0 No enforcement on cannabis use 0.0% 0 No action 0.0% 0 Other (explain) 73.3% 11 answered question 15 skipped question 0 Other Responses • Medical Marijuana dispensaries were banned in 2014. The prohibition includes any person, place, or use • Previously adapted zoning provisions to prohibit medical marijuana dispensaries in all zoning districts. • Costa Mesa currently has a moratorium on cultivation and dispensaries. Much discussion has been done due to two initiatives on the ,ubject that have qualified for the November 2016 general election. City held meetings in Dec 2014 and March 2015 on the issue and considered (did not adopt) a City measure. • The City currently prohibits marijuana dispensaries in all zones. • The City is discussing options to address the issue. • The City's current language does not list cannabis use specifically - it only prohibits any businesses that contravene federal law. However, we are drafting a revised zoning ordinance which has specific language about cannabis. This will be completed in the beginning of 2016. THE ONLINE RESOURCE ASSOCIATION OF CALIFORNIA CM ES FOR GOOD PUBLIC POLICY ORANGE COUNTY 7 • Amend ordinance to expressly prohibit cultivation. • City Council consideration of a marijuana cultivation moratorium ordinance • City staff will be proposing a prohibition on cannabis cultivation as we have already done on medical marijuana dispensaries. Anaheim City Council is the authority body to approve, modify or deny this proposal. • Defined Medical Marijuana dispensary as a use and ban this use in all zones. • Since the city has already a complete ban over marijuana dispensaries in place for several years, city staff will soon submit to the Council for their consideration a request to ban all cultivation, transportation, mobile delivery, and testing of marijuana or cannabis within the city limits. What action(s) has your city taken or will take in the next 30 days? Check all that apply 80.0°!a 70.0°/0 — 60.0% 50.o°r° -!—-- -- 40.0% 30.0% - 2Q Q°h 10,0% . . ........ N 0 Q Cll Y7 � C U N N [(1 D] N c G U U] U -0 Q7 Q] U E D C 21QJ v 6 U v � Cll a I HE ONLINE RESOURCE FOR GOOD PUBLIC POLICY 3 ASSOCIATION OF CALIFORNIA CITIES ORANGE COUNTY . . ........ N 0 Q Cll Y7 � C U N "3 N Z U U] N V) -0 v I HE ONLINE RESOURCE FOR GOOD PUBLIC POLICY 3 ASSOCIATION OF CALIFORNIA CITIES ORANGE COUNTY Reason for No Action or Further Action Breakdown of Answers Why has or hasn't your city taken action on cannabis use or cannabis dispensaries? Check all that Apply Answer Options Response Response Percent Count Resident Concerns 2.8.6% 4 Business Concerns 28.6% 4 No Resident Concerns 0.0% 0 No Business Concerns 0.0% 0 Ordinances in Place Prior to 2015 71.4% 10 Proactive Response to Issue 35.7% 5 Waiting on Council 7.1% 1 Waiting on California Legislature 21.4% 3 Other (please specify) 14.3% 2 answered question 14 skipped question 1 Other Responses • The City will be taking action (unknown at this time), in response to new state legislation. • Position was the use is not permitted by omission in the Code. Code defines permitted uses and since it's not defined, it's not allowed. Also, Code states that uses that violate State or Federal law are not permitted. Now with new State legislation, we will place a moratorium and then to regulate with a comprehensive Ordinance. 80.0% 70.0% 60.0% 50.0%0 40.0% 30.0 20.0% 10.0% 0.0%n ..fir ............. .....................�- N L C: [U N pNj Q'rn - C 0 U) U M 7 O C0 N .@ 00 - o z 0, M 1 HE ONLINE RESOURCE FOR GOOD PUBLIC POLICY E ASSOCIATION OF CAllFORNIA CITIES ©RANGE COUNTY AB 243 Response Breakdown of Answers What actions) have been taken, or what action(s) will your city take, on the regulation of cannabis cultivation/growth? Answer Options Better define cannabis cultivation/growth Limit zoning Ban land use for cannibals cultivation Develop regulation of cannibals cultivation Other (please specify) Response Response Percent Count 26.7% 4 13.3% 2 40.0% 6 13.3% 2 46.7% 7 answerer! question 1s skipped question 0 Other Responses • Action already taken prohibiting medical marijuana dispensaries, including cultivation. • Unknown at this time. • Ban cannabis cultivation • Currently developing an approach to deal with the issue. • consideration of a moratorium • Straight prohibition within the city limits of Anaheim will be the proposal before our City Council governing body for ultimate approval, modification or denial of this proposal. • Additional separation standards, operational standards and review/approval process if the City decides to move forward with the regulation of medical marijuana. What action(s) have been taken, or what action(s) will your city take, on the regulation of cannabis cultivation/growth? 50.0% ., 46.7% . 45.0°/0 _.___.....__ _ 40;,0% - - 40.0% i I I I_ ._.... ... 35.0% 26.7/0 30.0°/0 _ 25.0% ...- ....__ _ _ _......_._.._ 20.0% 13.3% - 15.0% 10.0°/a 0.0% L N !1 coo .o p 47 C > Q i- " E m U C�i J � o CL o� a C @ L6 O 0- a @ U ❑ U fr3 v- U THE ONLINE RESOURCE FOR GOOD PUBLIC POLICY 10 ASSOCIATION Of CALIFORNIA CITIES ORANGE COUNTY Cypress Code Cypress Municipal Code: 2.06.030. Commercial zoning district land uses and permit requirements. A. AllnwPd Innd+lses- Table 2-6 indicates the uses allowed within the 4P, CN, CG, and CH zoning districts, and the land use permit required to establish each use, in compliance with article 4 (Land Use and Development Permit Procedures). B. Prohibited land uses. Any table cell with a "—" means that the listed land use is prohibited in that specific zoning district. C. Land uses not listed. For land uses not listed in table 2-6, the provisions of subsection 4.19.030 (Directors review) shall apply. D. Design review required. All construction activities (e.g., additions, alterations, construction, reconstruction, or remodeling) shall require design review approval in compliance with subsection 4.19,060 (Design review). E. Applicable subsections_ Where the last column in the tables ("See Section") includes a subsection number, the regulations in the referenced section apply to the use; however, provisions in other sections of this zoning ordinance may also apply. F. All commercial uses to be conducted within an enclosed structure. All uses allowed within the commercial zoning districts shall be conducted within an enclosed structure, unless allowed otherwise by a conditional use permit in compliance with subsection 4.19.070 or a temporary use permit in compliance with subsection 4.19.040.(Ord. No. 1062, § 2(Exh. A), 11-25-04.} TABLE 2-6 ALLOWABLE USES AND PERMIT REQUIREMENTS FOR COMMERCIAL ZONING DISTRICTS Key to Table Permitted Use C Conditional use—Conditional Use Permit required (See Subsection 4.19.070) Use not allowed Site Review by Design Review Committee TUP Temporary Use Permit Land Use Permit Requirement by District OP CN CG CH See Section Services Land Use Permit Requirement by District Medical Marijuana Dispensary — I — I — 6.31.020 (Ord. No. 1062, § 2(1:xh, A), 11-25-04; Ord. No. 1073, § 3, 4-10-06, Ord. No. 1082, § 3, 9-11-06, Ord. No. 11171 § 2, 5-10-10.) TH E ON LIN E RESOURCE ASSOCI- A aN OF CALIFORNIA CITIFS FOR GOOD PUBLIC POLICY ORANGE COUNTY 11 Fullerton Code Chapter 4.20 MEDICAL MARIJUANA DISPENSARIES 4.20.010 PURPOSE AND FINDINGS. The City Council finds that federal and state laws prohibiting the possession, sale and distribution of marijuana would preclude the opening of medical marijuana dispensaries sanctioned by the City of Anaheim, and in order to serve public health, safety, and welfare of the residents and businesses within the City, the declared purpose of this chapter is to prohibit medical marijuana dispensaries as stated in this chapter. (Ord. 6067 § 1; August 7, 2007.) 4.20.020 DEFINITIONS. The following terms and phrases, whenever used in this chapter, shall be construed as defined in this section: .01.0 "Identification card" is a document issued by the State Department of Health Services which identifies a person authorized to engage in the medical use of marijuana and the person's designated primary caregiver, if any. .020 "Medical marijuana" is marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code Section 11362.7. .030 "Medical marijuana dispensary or dispensary" is any facility or location where medical marijuana is made available to and/or distributed by or to three or more of the following: a qualified patient, a person with an identification card, or a primary caregiver. Each of these terms is defined herein and shall be interpreted in strict accordance with California Health and Safety Code Sections 11362.5 and 11362.7 et seq. as such sections may be amended from time to time. .040 "Primary caregiver" is the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person. .050 "Physician" is an individual who possesses a recognition in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient's medical record the physician's assessment of whether the patient has a serious medical condition and whether the medical use of marijuana is appropriate. .060 "Qualified patient" is a person who is entitled to the protections of California Health and Safety Code Section 11362.5, but who does not have an identification card issued by the State Department of Health Services. (Ord. 6067 § 1; August 7, 2007.) 4.20.030 MEDICAL MARIJUANA DISPENSARY PROHIBITED. Medical Marijuana Dispensaries are prohibited in the City of Anaheim. It shall be unlawful for any person or entity to own, manage, conduct, or operate, or as a landlord or land owner (or as such landlord or land owner's agent, property manager or similar person having control over real property on behalf of its owner) allow or permit to exist, or be established, conducted, operated, owned or managed on or within any real property owned or controlled by such person, any Medical Marijuana Dispensary or to participate as a landlord, lessor, land owner, employee, contractor, agent or volunteer, or in any other manner or capacity, in any Medical Marijuana Dispensary in the City of Anaheim. THE ONLINE RESOURCE FOR GOOD PUBLIC POLICY 12 ASSOCIATION Of CALIFORNIA CITIES ORANGE COUNTY (Ord. 6067 § 1; August 7, 2007: Ord. 6315 § 1; February 24, 2015.) 4.20.040 USE OR ACTIVITY PROHIBITED BY STATE OR FEDERAL LAW. Nothing contained in this chapter shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any state or federal law. (Gird. 6067 § 1; August 7, 2007.) 4.20.050 PUBLIC NUISANCE DECLARED. Operation of any Medical Marijuana Dispensary within the City of Anaheim in violation of the provisions of this chapter is hereby declared a public nuisance and may be abated by all available means. (Ord. 6315 § 2; February 24, 2015.) Disclaimer: This Code of Ordinances and/or any other documents that appear on this site may not reflect the most current legislation adopted by the Municipality. American Legal Publishing Corporation provides these documents for informational purposes only. These documents should not be relied upon as the definitive authority for local legislation. Additionally, Lhe furrnatting and pagination of the posted documents varies from the formatting and pagination of the official copy. The official printed copy of a Code of Ordinances should be consulted prior to any action being taken. Laguna Beach Code 25.02.003 Prohibited use in any zone in the city. A. Medical Marijuana Dispensary Prohibited in All Zones. A medical marijuana dispensary, as defined in Section 25.08.024 of this title, is not an allowable use within any zone in the city of Laguna Beach and is expressly prohibited in all zones. No other definition or term utilized herein shall be interpreted to allow such use. Each individual zone in the city of Laguna Beach is hereby updated to prohibit medical marijuana dispensaries. B. Individual Use in Compliance With Compassionate Use Act. Nothing in this section shall be construed to make unlawful an individual's cultivation and/or consumption of medical marijuana in his or her own residence for their own use, or for the use of a qualified patient, if such cultivation, possession, or use is lawful under California Health and Safety Code Sections 11362.5 through 11362.83, inclusive. (Ord. 1511 § 4, 2009). THE ONLINE RESOURCE ASSOCIAONOFCALIFOILNIACITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY 13 Stanton Code Chapter 9.38 MEDICINAL MARIJUANA DISPENSARIES PROHIBITED 9.38.01.0 Prohibition of medicinal marijuana dispensaries. A. No person shall establish, operate, or permit to be operated, a medicinal marijuana dispensary in or upon any premises in the city, nor operate such a dispensary as a mobile vendor. It is a violation for any person to knowingly allow property of which he or she is the tenant or owner to be used as a medicinal marijuana dispensary. B. No medicinal marijuana dispensary shall be established or located or operated within the city, nor shall any building permit, conditional use permit, development plan, zoning clearance, or other entitlement for use be issued for any medicinal marijuana dispensary, nor shall any existing uses be modified to add a medicinal marijuana dispensary. (Ord. 953 § 3, 2008) 9.38.020 Definitions. For the purposes of this chapter, unless otherwise apparent from the context, the following definitions apply. "Marijuana" means all parts of organically grown Cannabis plants, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seed, or its resin. "Marijuana" does not include the mature stalks of the plant, fiber produced from the stalks, oil, or cake made from the seeds of the plant, or any other compound, manufacture, salt, derivative, mixture, or preparation of mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. "Medicinal marijuana" means marijuana authorized in strict compliance with California Health and Safety Code Sections 11352.5 through 11362.9. "Medical marijuana dispensary," "medicinal marijuana dispensary," "dispensary," and'medical/medicinal marijuana clinic" means any facility, site, cooperative, location, use, or mobile vending vehicle where medicinal marijuana is cultivated, distributed, sold, exchanged, given away, or made available for medical purposes in accordance with Health and Safety Code Section 11362.5. It shall not include any qualified residents or patients within any of the health facilities, as long as the location of such uses is otherwise regulated by this code or other applicable laws, as follows: a clinic licensed pursuant to Chapter 1 of Division (Sections 1200 et seq.) of the Health and Safety Code; a health care facility licensed pursuant to Chapter 1 of Division 2 (Sections 1250 et seq.) of the Health and Safety Code; a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 (Sections 1569 et seq.) of the Health and Safety Code; and a hospice licensed pursuant to Chapter 8.5 of Division 2 (Sections 1.745 et seq.) of the Health and Safety Code. (Ord. 953 § 3, 2008) Of 64.0) ,qnHUBI�) THE ONLINE RESOURCE FOR GOOD PUBLIC POLICY 14 im-uA. 0 - N Of CALIFORNIA CITIES GE COUNTY Villa Park ARTICLE 23-3. - EFFECTS OF ZONING REGULATIONS Sec. 23-3.1. -Application of Provisions. The provisions of this chapter governing the use of land, buildings, and structures, the size of yards abutting buildings and structures, the height and bulk of buildings, the density of population, the number of dwelling units per acre, standards of performance and other provisions hereby are declared to be in effect upon all land included with the boundaries of each and every zone established by this chapter. • Sec. 23-3.2. - Buildings Under Construction. Any building for which a building permit has been issued under the provisions of earlier ordinances of the City which are in conflict with this chapter, and on which substantial construction has been performed by integration of materials on the site before the effective date of this chapter, may nevertheless be continued and completed in accordance with the plans and specifications upon which the permit was issued. • Sec. 23-3.3. -Approved Tract Maps or Parcels Maps. Any approved tentative tract map or tentative parcel map which has been approved pursuant to the provisions of earlier ordinances of the City and which is in conflict with this chapter may nevertheless be continued and completed in accordance with the provisions of its approval provided it is completed within the time limit in effect at the time of its approval and provided it complies with all other ordinances and laws in effect at the time of its approval. Final tract maps may be approved pursuant to this section and building and other permits may be issued for any lots created pursuant to this section consistent with such approval. Sec. 23-3.4. - Medical Marijuana Dispensaries Prohibited. A medical marijuana dispensary, as defined in Article 23-5 of this Chapter, is not an allowable use within any zone in the City of Villa Parka nd is expressly prohibitcd in all zones. No other definition or term utilized herein shall be interpreted to allow such use. Each individual zone in the City of Villa Park is hereby updated to prohibit medical marijuana dispensaries. (Ord. #2010-552, § 3) THE ON LINE RESOURCE ASSOC-A�NOFCALIroRNIACITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY 15 Respondents City: Name: Title: Aliso Viejo Dave Doyle City Manager City Clerk brenda.green@costamesca.gov Community Development Preservation Anaheim Sandra Sagert Manager Buena Park Jay Saltzberg Planning Manager Costa cschaefer@lahabraca.gov Police Mesa Brenda Green City Clerk Community Douglas Director Cypress Hawkins City Planner Fountain jmorgan@cityoflagunaniguel.org City Manager's Valley Dan Llarens Chief Of Police Fullerton Matt Foulkes Senior Planner La Habra Chris Schaefer Senior Planner Laguna Beach Jason Kravetz Police Captain Community Laguna David Development Hills Chantarangsu Director Laguna Niguel John Morgan Planning Manager Spec. Assistant To Santa Ana Robert Cortez The Cm Community And Economic Omar M. Development Stanton Dadabhoy Director Elizabeth Tustin Binsack Director Jarad Villa Park Hildenbrand City Manager Department: Email Address: Administration ddoyle@cityofalisovieio.com Planning ssagert@anaheim.net Community Development isaltzberg@buenapark City Clerk brenda.green@costamesca.gov Community Development dhawkins@ci.cypress.ca.us Planning dan.11orens@Fountainvalley.org Community Development mattf@ci.fullerton.ca.us Planning cschaefer@lahabraca.gov Police Department jkravetz@lagunabeachcity.net Community dchantrarangsu@ci.laguna- Director hills.ca.gov Community Development jmorgan@cityoflagunaniguel.org City Manager's Office rcortez5@santa-ana.org Community Development odadabhoy@ci.stanton.ca.us Community Development ebinsack@tustinca.org Administration jarad@villapark.org Fop, GOOD PUBLIC POLICY 16 ASSOCIATION OF CALIFORNIA CITIES ©RANGE COUNTY ATTACHMENT D Planning Commission Resolution No. 4307 And Draft Ordinance No. 1466 RESOLUTION NO. 4397 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL ADOPT ORDINANCE NO. 1466, AMENDING TUSTIN CITY CODE SECTIONS 9270C AND 9297 TO EXPRESSLY PROHIBIT MARIJUANA CULTIVATION, PROCESSING, DELIVERY, AND DISTRIBUTION IN ALL ZONING DISTRICTS. The Planning Commission does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That the federal Controlled Substance Act ("CSA"), codified at 21 U.S.C. Section 841 et seq., strictly prohibits the cultivation, distribution, possession, or use of marijuana under any circumstance, including for medical purposes. B. That in 1996, California voters approved Proposition 215, entitled The Compassionate Use Act ("CLIA"), codified in Health and Safety Code Section 11362.5 et seq. The CUA, which was intended to enable seriously ill persons to obtain and use marijuana for medical purposes, exempted qualified patients and their primary caregivers from criminal prosecution under state law for the cultivation, distribution, possession, and use of marijuana under specified circumstances.. C. That in 2003, the California Legislature enacted Senate Bill (SB) 420, known as the Medical Marijuana Program Act ("MMPA"), codified in Health and Safety Code Section 11362.7 et seq. The MMPA clarified the scope and application of the CUA, better defined the regulatory framework for the cultivation, distribution, possession and use of medical marijuana, and recognized the right of cities to regulate the operation, location, and establishment of medical marijuana dispensaries. D. That on February 6, 2006, the City Council adopted Ordinance No. 1309, an interim urgency ordinance, and found that medical marijuana dispensaries are not permitted uses in any zoning district in the City of Tustin ("City") and expressly prohibited the establishment of any medical marijuana dispensary in the City for forty-five (45) days pending the commencement of appropriate studies and consideration of alternative land use approaches for addressing the health, safety, and welfare issues associated with the regulation of medical marijuana dispensaries in the City. On March 20, 2006, the City Council adopted Ordinance No. 1310, extending Ordinance No. 1309 for an additional ten (10) months and fifteen (15) days. E. That on december 4, 2006, the City Council adopted Ordinance No. 1322. The purpose and intent of Ordinance No. 1322 was to prohibit all illegal Resolution No. 4307 Page 2 uses, including medical marijuana dispensaries, to promote the health, safety, morals and general welfare of the residents and businesses within the City. F. That in 2608, the California Attorney General published Guidelines for the Security and Non -Diversion of Marijuana Grown for Medical Use, which, among other things, set forth suggested standards for the lawful operation of medical marijuana cooperatives and collectives, including medical marijuana dispensaries properly organized and operated as collectives or cooperatives. G. That neither the CUA, the MMPA, nor the Attorney General's Guidelines obligate cities to allow or permit medical marijuana dispensaries within their local jurisdictional limits. H. That since the enactment of the CUA, City Staff has researched, evaluated and monitored: (1) federal and state laws pertaining to medical marijuana; (2) litigation concerning the authority of cities to regulate and prohibit medical marijuana dispensaries; (3) medical marijuana dispensary ordinances enacted by other cities; and (4) reports and studies on the primary and secondary effects of marijuana dispensaries on local communities. That on May 6, 2013, the California Supreme Court in the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., 56 Cal, 41h 729, confirmed the right of municipalities to ban medical marijuana dispensaries, holding that neither the CUA nor the MMPA preempted a zoning ordinance which declared medical marijuana dispensaries to be a prohibited use of land. J. That on October 9, 2015, Governor Brown signed the "Medical Marijuana Regulation and Safety Act'" ('"MMRSA"), which is comprised of the State legislative bills known as Assembly Bill (AB) 243, AB 266, and Senate Bill (SB) 643, into law. K. That the MMRSA becomes effective January 1, 2016 and contains provisions that govern the cultivating, processing, transportation, testing, and distribution of medical cannabis to qualified patients. The MMRSA creates a State licensing program for issuance of permits that allows cultivation, processing, delivery/transportation, and distribution of medical marijuana. The MMRSA also contains new statutory provisions that: Expressly provide that the MMRSA does not supersede or limit local authority for local law enforcement activity, enforcement of local ordinances, or enforcement of local permit or licensing requirements regarding marijuana (Business & Professions Code §19315(x)); Resolution No. 4307 Page 3 ii. Expressly provide that the MMRSA does not limit the authority or remedies of a local government under any provision of law regarding marijuana, including but not limited to a local government's right to make and enforce within its limits all police regulations not in conflict with general laws (Business & Professions Code § 19316(c)), iii. Require a local government that wishes to prevent marijuana delivery activity, as defined in Business & Professions Code section19300.5(m) of the MMRSA, from operating within the local government's boundaries to enact an ordinance affirmatively banning such delivery Activity (Rusiness & Professions Code � 19340(x)); and iv. Require a local government that wishes to prevent cultivation of marijuana, as defined in Business & Professions Code section 19300.5(1), within its borders to enact an ordinance affirmatively banning such cultivation activity. (Health & Safety Code §11362,77(c)(4)). L. That several California cities and counties have experienced significant adverse impacts and negative secondary effects on the public health, safety, and welfare associated with and resulting from the establishment and operation of medical marijuana dispensaries. According to these communities, news stories widely reported, and medical marijuana advocates, medical marijuana dispensaries have resulted in and/or caused an increase in crime, including burglaries, robberies, murders, property damage, illegal sales of marijuana to, and use of marijuana by, minors and other persons without medical need, as well as nuisance conditions for adjacent businesses, in the areas immediately surrounding such medical marijuana dispensaries. M. That significant adverse secondary effects arising from the operation of dispensaries throughout California were chronicled in a report prepared by the California Police Chiefs Association. dated April 22, 2009, as well as by a report prepared by the Orange County Chiefs of Police and Sheriffs Association, dated June 2, 2010, in these reports, various crimes including armed robberies, murders, and burglary, arising from, or connected with, the operation of these establishments have been recorded by law enforcement agencies in, among numerous other communities, the California communities of Santa Barbara, Mendocino, San Leandro, Hayward, Laytonville, Bellflower, Claremont, and Willits, as well as in various communities in Orange County, N. That the California Police Chiefs Association report further found: (a) that. there have been reported poisonings from distribution of marijuana products due to contamination issues which are more likely because such products are not inspected by health agencies; (b) that adverse traffic, Resolution No, 4307 Page 4 noise, and drug dealing impacts occur commonly outside marijuana dispensaries; and (c) that gang involvement in the ownership and operation of these dispensaries have been reported in some communities. Q. That marijuana plants, as they begin to flower and for a period of two months or more, produce a strong odor, which is offensive to many people, and detectable far beyond property boundaries if grown outdoors. P. That in the case of multiple qualified patients who are in control of the same legal parcel, or parcels, of property, or in the case of collective or cooperative cultivation, or in the case of a caregiver growing for numerous patients, a very large number of plants could be cultivated on the same legal parcel, or parcels, within the City. Q. That the strong smell of marijuana creates an attractive nuisance, alerting persons to the location of the valuable plants, and creating a risk of burglary, robbery or armed robbery. R. That the indoor cultivation of marijuana has potential adverse effects to the structural integrity of the building in which the cultivation activity takes place, including installation of unpermitted roof and floor vents, and issues created by water and mold damage. In addition, the use of high wattage grow lights and excessive use of electricity increases the risk of fire which presents a danger to the building and its occupants. & That based on the experiences of other cities, these negative effects on the public health, safety, and welfare are likely to occur, and continue to occur, in the City due to the establishment and operation of marijuana cultivation, processing and distribution activities. T. That medical marijuana cultivation, proccssing, delivery, and distribution not listed as a "permitted use" in any zoning district in the City. The Tustin City Code ("TCC") provides that: (1) any use that is not expressly permitted in a district as a permitted use or as a conditionally permitted use, including a use in a district determined to be similar in character to a particular use allowed in such district as provided in this Code, shall be deemed a prohibited use and such use shall not be allowed in such district; and (2) Notwithstanding any provision of this Code to the contrary, any use, entitlement, authorization, license, or permit allowed or issued under this Code, including without limitation any accessary or ancillary use, shall be consistent with applicable state and federal law. Any use or activity that is illegal under local, state, or federal law shall be deemed a prohibited use in all districts within the City. U. That Code Amendment (CA) 2015-005 clarifies the status of medical marijuana dispensaries as an expressly prohibited land use, and shall not be construed to limit or affect the application of Sections 9270c and 9298g of the TCC to medical marijuana dispensaries or any other land use or activity. Resolution No. 4307 Page 5 V. That on December 8, 2015, a public hearing was duly noticed, called, and held on Code Amendment 15-005 by the Planning Commission. W. That Code Amendment 2015-005 is consistent with the goals, objectives, and policies of the General Plan as a whole and is not inconsistent with any element thereof in that medical marijuana dispensaries are not a contemplated land use in the General Plan and prohibiting marijuana cultivation, processing, delivery, and distribution activities in all zoning districts of the City is necessary and appropriate to maintain and protect the public health, safety and general welfare of the City as a whole. This Ordinance clarifies that medical marijuana cultivation, processing, delivery, and distribution activities are prohibited in all zoning districts in the City. Medical marijuana dispensary uses are not allowed by the current General Plan and City Code. Adoption of this Ordinance maintains the current consistency with the General Plan and between the General Plan and the City Code, This Ordinance promotes public health, safety, and general welfare and serves the goals and purposes of the Tustin City Code by clarifying and confirming that medical marijuana cultivation, processing, delivery, and distribution activities are prohibited in all zoning districts in the City. The continued prohibition of such uses in all zoning districts will ensure that none of the negative secondary effects of medical marijuana dispensaries will adversely impact the general welfare of the City as a whole.. X. That Code Amendment 2.015-05 is not subject to the California Environmental Quality Act (CEQA) pursuant to California Code of Regulations, Title 14, Chapter 3, Sections 15060 (c) (2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. II. The Planning Commission hereby recommends that the City Council adopt Ordinance No, 1466, amending Tustin City Code (TCC) Sections 9270c and 9297 to expressly prohibit marijuana cultivation, processing, delivery, and distribution in all zoning districts, attached hereto. PASSFf7 AND ADOPTED at a regular meeting of the Planning Commission of the City of Tustin held on the 8th day of December, 2015. JEFF R. THOMPSON Chairperson ELIZABETH A. BINSACK Planning Commission Secretary Resolution No. 4307 Page 5 STATE OF CALIFORNIA } COUNTY OF ORANGE } CITY OF TUSTIN I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California, that Resolution No. 4307 was passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 81" day of December, 2015. PLANNING COMMISSIONER AYES: PLANNING COMMISSIONER NOES: PLANNING COMMISSIONER ABSTAINED: PLANNING COMMISSIONER ABSENT: ELIZABETH A. BINSACK Planning Commission Secretary ORDINANCE NO. 1466 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING TUSTIN CITY CODE SECTIONS 9270C AND 9297 TO EXPRESSLY PROHIBIT MARIJUANA CULTIVATION, PROCESSING, DELIVERY, AND DISTRIBUTION IN ALL ZONING DISTRICTS. The City Council of the City of Tustin does hereby ordain as follows: Section 1. The City Council finds and determines as follows: A. That the federal Controlled Substance Act ("CSA"), codified at 21 U.S.C. Section 841 et seq., strictly prohibits the cultivation, distribution, possession, or use of marijuana under any circumstance, including for medical purposes. B. That in 1996, California voters approved Proposition 215, entitled The Compassionate Use Act ("CUA"), codified in Health and Safety Code Section 11362.5 et seq. The CUA, which was intended to enable seriously ill persons to obtain and use marijuana for medical purposes, exempted qualified patients and their primary caregivers from criminal prosecution under state law for the cultivation, distribution, possession, and use of marijuana under specified circumstances. C. That in 2903, the California Legislature enacted Senate Bill (SB) 420, known as the Medical Marijuana Program Act ("MMPA"), codified in Health and Safety Code Section 11362.7 et seq. The MMPA clarified the scope and application of the CUA, better defined the regulatory framework for the cultivation, distribution, possession and use of medical marijuana, and recognized the right of cities to regulate the operation, location, and establishment of medical marijuana dispensaries. D. That on February 6, 2006, the City Council adopted Ordinance No. 1309, an interim urgency ordinance, and found that medical marijuana dispensaries are not permitted uses in any zoning district in the City of Tustin ("City") and expressly prohibited the establishment of any medical marijuana dispensary in the City for forty-five (45) days pending the commencement of appropriate studies and consideration of alternative land use approaches for addressing the health, safety, and welfare issues associated with the regulation of medical marijuana dispensaries in the City. On March 20, 2006, the City Council adopted Ordinance No. 1310, extending Ordinance No. 1309 for an additional ten (10) months and fifteen (15) days. E. That on December 4, 2006, the City Council adopted Ordinance No. 1322.. The purpose and intent of Ordinance No. 1322 was to prohibit all illegal Ordinance 1466 Page 2 uses, including medical marijuana dispensaries, to promote the health, safety, morals and general welfare of the residents and businesses within the City. F. That in 2008, the California Attorney General published Guidelines for the Security and Non -Diversion of Marijuana Grown for Medical Use, which, among other things, set forth suggested standards for the lawful operation of medical marijuana cooperatives and collectives, including medical marijuana dispensaries properly organized and operated as collectives or cooperatives. G. That neither the CUA, the MMPA, nor the Attorney General's Guidelines obligate cities to allow or permit medical marijuana dispensaries within their local jurisdictional limits. H. That since the enactment of the CUA, City Staff has researched, evaluated and monitored: (1) federal and state laws pertaining to medical marijuana; (2) litigation concerning the authority of cities to regulate and prohibit medical marijuana dispensaries; (3) medical marijuana dispensary ordinances enacted by other cities; and (4) reports and studies on the primary and secondary effects of marijuana dispensaries on local communities. That on May 6, 2013, the California Supreme Court in the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., 56 Cal. 4«' 729, confirmed the right of municipalities to ban medical marijuana dispensaries, holding that neither the CUA nor the MMPA preempted a zoning ordinance which declared medical marijuana dispensaries to be a prohibited use of land. J. That on October 9, 2015, Governor Brown signed the "Medical Marijuana Regulation and Safety Act" ("MMRSA"), which is comprised of the State legislative bills known as Assembly Bill (AB) 243, AB 266, and Senate Bill (SB) 643, into law. K. That the MMRSA becomes effective January 1, 2016 and contains provisions that govern the cultivation, processing, transportation„ testing, and distribution of medical cannabis to qualified patients. The MMRSA creates a State licensing program for issuance of permits that allow cultivation, processing, del iveryltransportation, and distribution of medical marijuana. The MMRSA also contains new statutory provisions that: 1. Expressly provide that the MMRSA does not supersede or limit local authority for local law enforcement activity, enforcement of local ordinances, or enforcement of local permit or licensing requirements regarding marijuana (Business & Professions Code §19315(a)); Ordinance 1466 Page 3 2. Expressly provide that the MMRSA does not limit the authority or remedies of a local government under any provision of law regarding marijuana, including but not limited to a local government's right to make and enforce within its limits all police regulations not in conflict with general laws (Business & Professions Code § 19316(c)); 3. Require a local government that wishes to prevent marijuana delivery activity, as defined in Business & Professions Code section19300.5(m) of the MMRSA, from operating within the local government's boundaries to enact an ordinance affirmatively banning such delivery activity (Business & Professions Code § 19340(a)); and 4. Require a local government that wishes to prevent cultivation of marijuana, as defined in Business & Professions Code section 19300.5(1), within its borders to enact an ordinance affirmatively banning such cultivation activity. (Health & Safety Code § 11362.77(c)(4)) L. That several California cities and counties have experienced significant adverse impacts and negative secondary effects on the public health, safety, and welfare associated with and resulting from the establishment and operation of medical marijuana dispensaries. According to these communities, news stories widely reported, and medical marijuana advocates, medical marijuana dispensaries have resulted in and/or caused an increase in crime, including burglaries, robberies, murders, property damage, illegal sales of marijuana to, and use of marijuana by, minors and other persons without medical need, as well as nuisance conditions for adjacent businesses, in the areas immediately surrounding such medical marijuana dispensaries. M. That significant adverse secondary effects arising from the operation of dispensaries throughout California were chronicled in a report prepared by the California Police Chiefs' Association, dated April 22, 2009, as well as by a report prepared by the Orange County Chiefs of Police and Sheriff's Association, dated June 2, 2010. In these reports, various crimes including armed robberies, murders, and burglary, arising from, or connected with, the operation of these establishments have been recorded by law enforcement agencies in, among numerous other communities, the California communities of Santa Barbara, Mendocino, San Leandro, Hayward, Laytonville, Bellflower, Claremont, and Willits, as well as in various communities in Orange County. N. That the California Police Chiefs' Association report further found: (a) that there have been reported poisonings from distribution of marijuana products due to contamination issues which are more likely because such Ordinance 146E Page 4 products are not inspected by health agencies; (b) that adverse traffic, noise, and drug dealing impacts occur commonly outside marijuana dispensaries; and (c) that gang involvement in the ownership and operation of these dispensaries have been reported in some communities. a. That marijuana plants, as they begin to flower and for a period of two months or more, produce a strong odor, which is offensive to many people, and detectable far beyond property boundaries if grown outdoors. P. That in the case of multiple qualified patients who are in control of the same legal parcel, or parcels, of property, or in the case of collective or cooperative cultivation, or in the case of a caregiver growing for numerous patients, a very large number of plants could be cultivated on the same legal parcel, or parcels, within the City. Q. That the strong smell of marijuana creates an attractive nuisance, alerting persons to the location of the valuable plants, and creating a risk of burglary, robbery or armed robbery. R. That the indoor cultivation of marijuana has potential adverse effects to the structural integrity of the building in which the cultivation activity -takes place, including installation of unpermitted roof and floor vents, and issues created by water and mold damage. In addition, the use of high wattage grow lights and excessive use of electricity increases the risk of fire which presents a danger to the building and its occupants. S. That based on the experiences of other cities, these negative effects on the public health, safety, and welfare are likely to occur, and continue to occur, in the City due to the establishment and operation of marijuana cultivation, processing and distribution activities. T. That medical marijuana cultivation, processing, delivery, and distribution are not listed as "permitted uses" in any zoning district in the City. The Tustin City Code ("TCC") provides that: (1) any use that is not expressly permitted in a district as a permitted use or as a conditionally permitted use, including a use in a district determined to be similar in character to a particular use allowed in such district as provided in this Code, shall be deemed a prohibited use and such use shall not be allowed in such district; and (2) Notwithstanding any provision of this Code to the contrary, any use, entitlement, authorization, license, or permit allowed or issued under this Code, including without limitation any accessory or ancillary use, shall be consistent with applicable state and federal law. Any use or activity that is illegal under local, state, or federal law shall be deemed a prohibited use in all districts within the City. U. That Code Amendment (CA) 2015-005 clarifies the status of medical marijuana dispensaries as an expressly prohibited land use, and shall not Ordinance 1466 Page 5 be construed to limit or affect the application of Sections 9270c and 9298g of the TCC to medical marijuana dispensaries or any other land use or activity. V. That on December 8, 2015, a public hearing was duly noticed, called, and held on CA 2015-005 by the Planning Commission. W. That on December 8, 2015, the Planning Commission adopted Resolution No. 4308, and recommended that the City Council adopt Ordinance No. 1466, approving CA 2015-005 to prohibit marijuana cultivation, processing, delivery, and distribution in all zoning districts. X. That on January 5, 2016, a public hearing was duly noticed, called, and held on Code Amendment 2015-005 by the City Council. Y. That Code Amendment 2015-005 is consistent with the goals, objectives, and policies of the General Plan as a whole and is not inconsistent with any element thereof in that medical marijuana dispensaries are not a contemplated land use in the General Plan and prohibiting marijuana cultivation, processing, delivery, and distribution activities in all zoning districts of the City is necessary and appropriate to maintain and protect the public health, safety and general welfare of the City as a whole. This Ordinance clarifies that medical marijuana cultivation, processing, delivery, and distribution activities are prohibited in all zoning districts in the City. Medical marijuana dispensary uses are not allowed by the current General Plan and City Code. Adoption of this Ordinance maintains the current consistency with the General Plan and between the General Plan and the City Code. This Ordinance promotes public health, safety, and general welfare and serves the goals and purposes of the Tustin City Code by clarifying and confirming that medical marijuana cultivation, processing, delivery, and distribution activities are prohibited in all zoning districts in the City. The continued prohibition of such uses in all zoning districts will ensure that none of the negative secondary effects of medical marijuana dispensaries will adversely impact the general welfare of the City as a whole. Z. That Code Amendment 2015-05 is not subject to the California Environmental Quality Act (CEQA) pursuant to California Code of Regulations, Title 14, Chapter 3, Sections 15060 (c) (2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. Ordinance 1466 Page 6 Section 2. The following definition for "medical marijuana dispensary" is hereby added to Section 9297 of Part 9 of Chapter 2 of Article 9 of the Tustin City Code to read as follows: "Medical marijuana dispensary" means any association, business facility,. use establishment location deliverV service, cooperative, collective, or provider, whether fixed or mobile, that possesses, cultivates, processes distributes, makes available or otherwise facilitates the distribution of mari'uana in any form or incorporated into any otherproduct) to an person including, but not limited to, a qualified patient, a person with an identification card, or a primary caregiver as those terms are defined in California Health and Safety Code Sections 11362.5 and 11362.7 et seg., as may be amended from time to time." Section 3. Section 9270c of Part 7 of Chapter 2 of Article 9 of the Tustin City Code is hereby amended to read as follows (new text underlined): Prohibited Uses Any use that is not expressly permitted in a district as a permitted use or as a conditionally permitted use, including a use in a district determined to be similar in character to a particular use allowed in such district as provided in this Code, shall be deemed a prohibited use and such use shall not be allowed in such district. Medical marijuana dispensaries shall be expressly prohibited in all zoning_ districts. Section 5. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held out to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance, The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this 191h day of January, 2016. JOHN NIELSEN, MAYOR Ordinance 1466 Page 7 ATTEST: ERIC N. RABE, CITY CLERK STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF TUSTIN } CERTIFICATION FOR ORDINANCE NO. 1466 Erica N. Rabe, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1466 was duly and regularly introduced and read by title only at the regular meeting of the City Council held on the Sth day of January, 2016, and was given its second reacting, passed, and adopted at a regular meeting of the City Council held on the 1 gth day of January, 2016, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: Erica N. Rabe, City Clerk Published: