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HomeMy WebLinkAbout10 CODE AMENDMENT 2015-005 & ORDINANCE NO. 1466 - MEDICAL MARIJUANAMEETING DATE: TO FROM: AgendaItem 1_ ewew AGENDA REPORT RCity Manager Finance Director A JANUARY 5, 2016 JEFFREY C. PARKER, CITY MANAGER ELIZABETH A. BINSACK, COMMUNITY DEVELOPMENT DIRECTOR SUBJECT: CODE AMENDMENT 2015-005 AND AMENDMENTS TO ARTICLE 3 OF THE TUSTIN CITY CODE (ORDINANCE NO. 1466) — MEDICAL MARIJUANA SUMMARY: Draft Ordinance No. 1466 consists of proposed amendments to the Tustin City Code (TCC) that would expressly prohibit the establishment and operation of marijuana cultivation, processing, delivery, and distribution activities within the City. On December 8, 2015, the Planning Commission adopted Resolution No. 4307, recommending that the Tustin City Council adopt Ordinance No. 1466. (Applicant: City of Tustin) RECOMMENDATION: That the City Council introduce and read by title only Ordinance No. 1466 amending TCC Sections 9270c and 9297 and amendments to Article 3 of the TCC (General Business Regulations) to expressly prohibit marijuana cultivation, processing, delivery, and distribution within the City, and set a second reading for the next City Council meeting. FISCAL IMPACT: The proposed CA is a City -initiated project. There is no direct fiscal impact to the General Fund. CORRELATION TO THE STRATEGIC PLAN: The proposed project furthers the objectives of the following Strategic Plan goals: City Council Report January 5, 2016 Ordinance No. 1466 Page 2 • Goal A: Economic and Neighborhood Development — The proposed project would enhance the quality of life in the community. • Goal B: Public Safety and Protection of Assets — The proposed project would ensure Tustin is an attractive, safe and well maintained community in which people feel pride. APPROVAL AUTHORITY: The TCC Section 9295g authorizes the City Council to adopt Zoning Code amendments following a recommendation by the Planning Commission and a public hearing. A recommendation from the Planning Commission and a public hearing are not required for the proposed amendments to Article 3 of the TCC (General Business Regulations), which are included in Ordinance No. 1466. BACKGROUND AND DISCUSSION: Proposed Code Amendment The proposed CA would expressly prohibit the establishment and operation of marijuana cultivation, processing, delivery, and distribution activities within 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. 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. City Council Report January 5, 2016 Ordinance No. 1466 Page 3 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 prohibiting 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 required and cultivation of marijuana within such a city will be legal (with a State issued permit) even if the city has a marijuana 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 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. City Council Report January 5, 2016 Ordinance No. 1466 Page 4 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 Sheriffs 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. 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. City Council Report January 5, 2016 Ordinance No. 1466 Page 5 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 City Council wish to explore alternatives and 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 City Council 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 MMRSA. 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 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. PUBLIC INPUT AND PLANNING COMMISSION ACTION: On December 8, 2015, the Planning Commission held a public hearing, staff provided a presentation, and one (1) member of the public provided public testimony (see Attachment D — December 8, 2015, Planning Commission Draft Minutes). This individual spoke in opposition to the proposed code amendment and noted various health benefits of marijuana use. Following the public hearing, the Planning Commission considered the public input and staff's recommendation, deliberated proposed CA 2015-005, and, adopted Resolution No. 4307 (Attachment E), which passed 5-0, recommending that the City Council adopt Ordinance No. 1466, approving Code Amendment 2015-005. Pursuant to TCC Section 9295f, after the close of the public hearing or continuations thereof, the Planning Commission shall make a report of its findings and its recommendation with respect to the proposed code amendment. The Planning Commission report shall include a list of persons who testified at the hearing, a summary of the facts adduced at the hearing, the findings of the Commission, and copies of any maps or other data and/or documentary evidence submitted in connection with the proposed amendment. The attached Planning Commission Draft Minutes and Planning Commission Resolution No. 4307 (Attachments D and E) constitute the report required by the TCC. City Council Report January 5, 2016 Ordinance No. 1466 Page 6 Planning Commission Concerns In addition to adopting Resolution No. 4307, the Planning Commission expressed concerns about the City adopting an ordinance that would expressly prohibit qualified patients from cultivating and/or receiving marijuana for their own medical use. The Planning Commission directed staff to relay these concerns to the City Council for consideration (Attachment D). AMENDMENTS TO ARTICLE 3 OF THE TUSTIN CITY CODE: Following the Planning Commission's consideration of CA 2015-005 on December 8, 2015, Draft Ordinance No. 1466 was revised at the advice of the City Attorney to incorporate related Amendments to Article 3 of the TCC (General Business Regulations) which have been included to ensure internal consistency within the TCC. These Amendments to Article 3 restate existing provisions of the TCC relating to prohibited uses and restate that medical marijuana dispensaries are a prohibited use within the City. ENVIRONMENTAL ANALYSIS: The proposed CA 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. PUBLIC NOTICE AND CHAMBER OF COMMERCE REVIEW: A public notice was published in the Tustin News on December 24, 2015, informing the public of the City Council public hearing for proposed CA 2015-005. In addition, a copy of the staff report and proposed Ordinance No. 1466 were forwarded to the Chamber of Commerce prior to the City Council's hearing on the matter. CITY ATTORNEY REVIEW: The City Attorney has reviewed the content and form of Draft Ordinance No. 1466. CONCLUSION: Significant negative effects on the public health, safety, and welfare have been documented due to the establishment and operation of marijuana cultivation, processing and distribution activities. Proposed CA 2015-005 would expressly prohibit the establishment and operation of marijuana cultivation, processing, delivery, and distribution activities 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 City Council Report January 5, 2016 Ordinance No. 1466 Page 7 medical marijuana dispensaries will adversely impact the general welfare of the City as a whole. Accordingly, staff recommends that theCity Council approve CA 2015-005. �/- ak&A41�'= — tt Reekstin Elizabeth A. Binsack Principal Planner 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. December 8, 2015, Planning Commission Draft Minutes E. Planning Commission Resolution No. 4307 F. Draft Ordinance No. 1466 (Code Amendment 2015-005) ATTACHMENT A White Paper on Marijuana Dispensaries WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES © 2009 California Police Chiefs Assn. All Rights Reserved ACKNOWLEDGMENTS Beyond any question, this White Paper is the product of a major cooperative effort among representatives of numerous lav enforcement agencies and allies who share in common the goal of bringing to light the criminal nexus and attendant societal problems posed by marijuana dispensaries that until now have been too often hidden in the shadows. The critical need for this project was first recognized by the California Police Chiefs Association, which put its implementation in the very capable hands of CPCA's Executive Director Leslie McGill, City of Modesto Chief of Police Roy Wasden, and City of El Cerrito Chief of Police Scott Kirkland to spearhead. More than 30 people contributed to this project as members of CPCA's Medical Marijuana Dispensary Crime/Impact Issues Task Force, which has been enjoying the hospitality of Sheriff John McGinnis at regular meetings held at the Sacramento County Sheriff s Department's Headquarters Office over the past three years about every three months. The ideas for the White Paper's components came from this group, and the text is the collaborative effort of numerous persons both on and off the task force. Special mention goes to Riverside County District Attorney Rod Pacheco and Riverside County Deputy District Attorney Jacqueline Jackson, who allowed their Office's fine White Paper on Medical Marijuana: History and Current Complications to be utilized as a partial guide, and granted permission to include material from that document. Also, Attorneys Martin Mayer and Richard Jones of the law firm of Jones & Mayer are thanked for preparing the pending legal questions and answers on relevant legal issues that appear at the end of this White Paper. And, I thank recently retired San Bernardino County Sheriff Gary Penrod for initially assigning me to contribute to this important work. Identifying and thanking everyone who contributed in some way to this project would be well nigh impossible, since the cast of characters changed somewhat over the years, and some unknown individuals also helped meaningfully behind the scenes. Ultimately, developing a White Paper on Marijuana Dispensaries became a rite of passage for its creators as much as a writing project. At times this daunting, and sometimes unwieldy, multi-year project had many task force members, including the White Paper's editor, wondering if a polished final product would ever really reach fruition. But at last it has! If any reader is enlightened and spurred to action to any degree by the White Paper's important and timely subject matter, all of the work that went into this collaborative project will have been well worth the effort and time expended by the many individuals who worked harmoniously to make 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 Appelsmith, Office of the California Attorney General John Avila, California Narcotics Officers Association Phebe Chu, Office of San Bernardino County Counsel Scott Collins, Los Angeles County District Attorney's Office Cathy Coyne, California State Sheriffs' Association Lorrac Craig, Trinity County Sheriffs Department Jim Denney, California State Sheriffs' Association Thomas Dewey, California State University—Humboldt Police Department Dana Filkowski, Contra Costa County District Attorney's Office John Gaines, California Department of Justice/Bureau of Narcotics Enforcement Craig Gundlach, Modesto Police Department John Harlan, Los Angeles County District Attorney's Office—Major Narcotics Division © 2009 California Police Chiefs Assn. I All Rights Reserved Nate Johnson, California State University Police Mike Kanalakis, Monterey County 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 Angeles Police Department 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 Regan, EI Cerrito Police Department Melissa Reisinger, California Police Chiefs Association Kimberly Rios, California Department of Justice, Conference Planning Unit Kent Shaw, California Department of Justice/Bureau of Narcotics Enforcement Crystal Spencer, California Department of Justice, Conference Planning Unit Sam Spiegel, Folsom Police Department Valerie Taylor, ONDCP Thomas Toller, California District Attorneys Association Martin Vranicar, Jr., California District Attorneys Association April 22, 2009 Dennis Tilton, Editor © 2009 California Police Chiefs Assn. ii All Rights Reserved TABLE OF CONTENTS Pages ACKNOWLEDGMENTS...................................................... i -ii EXECUTIVE SUMMARY......................................................iv-vi WHITE PAPER ON MARIJUANA DISPENSARIES INTRODUCTION............................................................1 FEDERALLAW..............................................................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 SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILARLY OPERATING COOPERATIVES.................................8 ANCILLARY CRIMES.........................................................8-10 OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES..............................................................I1 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 © 2009 California Police Chiefs Assn. iii All Rights Reserved WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES EXECUTIVE SUMMARY INTRODUCTION Proposition 215, an initiative authorizing the limited possession, cultivation, and use of marijuana by patients and their care providers for certain medicinal purposes recommended by a physician without subjecting such persons to criminal punishment, was passed by California voters in 1996. This was supplemented by the California State Legislature's enactment in 2003 of the Medical Marijuana Program Act (SB 420) that became effective in 2004. The language of Proposition 215 was codified in California as the Compassionate Use Act, which added section 11362.5 to the California Health & Safety Code. Much later, the language of Senate Bill 420 became the Medical Marijuana Program Act (MMPA), and was added to the California Health & Safety Code as section 11362.7 et seq. Among other requirements, it purports to direct all California counties to set up and administer a voluntary identification card system for medical marijuana users and their caregivers. Some counties have already complied with the mandatory provisions of the MMPA, and others have challenged provisions of the Act or are awaiting outcomes of other counties' legal challenges to it before taking affirmative steps to follow all of its dictates. And, with respect to marijuana dispensaries, the reaction of counties and municipalities to these nascent businesses has been decidedly mixed. Some have issued permits for such enterprises. Others have refused to do so within their jurisdictions. Still others have conditioned permitting such operations on the condition that they not violate any state or federal law, or have reversed course after initially allowing such activities within their geographical borders by either limiting or refusing to allow any further dispensaries to open in their community. This White Paper explores these matters, the apparent conflicts between federal and California law, and the scope of both direct and indirect adverse impacts of marijuana dispensaries in local communities. It also recounts several examples that could be emulated of what some governmental officials and law enforcement agencies have already instituted in their jurisdictions to limit the proliferation of marijuana dispensaries and to mitigate their negative consequences. FEDERAL LAW Except for very limited and authorized research purposes, federal law through the Controlled Substances Act absolutely prohibits the use of marijuana for any legal purpose, and classifies it as a banned Schedule I drug. It cannot be legally prescribed as medicine by a physician. And, the federal regulation supersedes any state regulation, so that under federal law California medical marijuana statutes do not provide a legal defense for cultivating or possessing marijuana—even with a physician's recommendation for medical use. © 2009 California Police Chiefs Assn. iv All Rights Reserved CALIFORNIA LAW Although California law generally prohibits the cultivation, possession, transportation, sale, or other transfer of marijuana from one person to another, since late 1996 after passage of an initiative (Proposition 215) later codified as the Compassionate Use Act, it has provided a limited affirmative defense to criminal prosecution for those who cultivate, possess, or use limited amounts of marijuana for medicinal purposes as qualified patients with a physician's recommendation or their designated primary caregiver or cooperative. Notwithstanding these limited exceptions to criminal culpability, California law is notably silent on any such available defense for a storefront marijuana dispensary, and California Attorney General Edmund G. Brown, Jr. has recently issued guidelines that generally find marijuana dispensaries to be unprotected and illegal drug-trafficking enterprises except in the rare instance that one can qualify as a true cooperative under California law. A primary caregiver must consistently and regularly assume responsibility for the housing, health, or safety of an authorized medical marijuana user, and nowhere does California law authorize cultivating or providing marijuana—medical or non-medical—for profit. California's Medical Marijuana Program Act (Senate Bill 420) provides further guidelines for mandated county programs for the issuance of identification cards to authorized medical marijuana users on a voluntary basis, for the chief purpose of giving them a means of certification to show law enforcement officers if such persons are investigated for an offense involving marijuana. This system is currently under challenge by the Counties of San Bernardino and San Diego and Sheriff Gary Penrod, pending a decision on review by the U.S. Supreme Court, as is California's right to permit any legal use of marijuana in light of federal law that totally prohibits any personal cultivation, possession, sale, transportation, or use of this substance whatsoever, whether for medical or non-medical purposes. PROBLEMS POSED BY MARIJUANA DISPENSARIES Marijuana dispensaries are commonly large money -making enterprises that will sell marijuana to most anyone who produces a physician's written recommendation for its medical use. These recommendations can be had by paying unscrupulous physicians a fee and claiming to have most any malady, even headaches. While the dispensaries will claim to receive only donations, no marijuana will change hands without an exchange of money. These operations have been tied to organized criminal gangs, foster large grow operations, and are often multi -million -dollar profit centers. Because they are repositories of valuable marijuana crops and large amounts of cash, several operators of dispensaries have been attacked and murdered by armed robbers both at their storefronts and homes, and such places have been regularly burglarized. Drug dealing, sales to minors, loitering, heavy vehicle and foot traffic in retail areas, increased noise, and robberies of customers just outside dispensaries are also common ancillary byproducts of their operations. To repel store invasions, firearms are often kept on hand inside dispensaries, and firearms are used to hold up their proprietors. These dispensaries are either linked to large marijuana grow operations or encourage home grows by buying marijuana to dispense. And, just as destructive fires and unhealthful mold in residential neighborhoods are often the result of large indoor home grows designed to supply dispensaries, money laundering also naturally results from dispensaries' likely unlawful operations. © 2009 California Police Chiefs Assn. v All Rights Reserved LOCAL GOVERNMENTAL RESPONSES Local governmental bodies can impose a moratorium on the licensing of marijuana dispensaries while investigating this issue; can ban this type of activity because it violates federal law; can use zoning to control the dispersion of dispensaries and the attendant problems that accompany them in unwanted areas; and can condition their operation on not violating any federal or state law, which is akin to banning them, since their primary activities will always violate federal law as it now exists— and almost surely California law as well. LIABILITY While highly unlikely, local public officials, including county supervisors and city council members, could potentially be charged and prosecuted for aiding and abetting criminal acts by authorizing and licensing marijuana dispensaries if they do not qualify as "cooperatives" under California law, which would be a rare occurrence. Civil liability could also result. ENFORCEMENT OF MARIJUANA LAWS While the Drug Enforcement Administration has been very active in raiding large-scale marijuana dispensaries in California in the recent past, and arresting and prosecuting their principals under federal law in selective cases, the new U.S. Attorney General, Eric Holder, Jr., has .very recently announced a major change of federal position in the enforcement of federal drug laws with respect to marijuana dispensaries. It is to target for prosecution only marijuana dispensaries that are exposed as fronts for drug trafficking. It remains to be seen what standards and definitions will be used to determine what indicia will constitute a drug trafficking operation suitable to trigger investigation and enforcement under the new federal administration. Some counties, like law enforcement agencies in the County of San Diego and County of Riverside, have been aggressive in confronting and prosecuting the operators of marijuana dispensaries under state law. Likewise, certain cities and counties have resisted granting marijuana dispensaries business licenses, have denied applications, or have imposed moratoria on such enterprises. Here, too, the future is uncertain, and permissible legal action with respect to marijuana dispensaries may depend on future court decisions not yet handed down. Largely because the majority of their citizens have been sympathetic and projected a favorable attitude toward medical marijuana patients, and have been tolerant of the cultivation and use of marijuana, other local public officials in California cities and counties, especially in Northern California, have taken a "hands off' attitude with respect to prosecuting marijuana dispensary operators or attempting to close down such operations. But, because of the life safety hazards caused by ensuing fires that have often erupted in resultant home grow operations, and the violent acts that have often shadowed dispensaries, some attitudes have changed and a few political entities have reversed course after having previously licensed dispensaries and authorized liberal permissible amounts of marijuana for possession by medical marijuana patients in their jurisdictions. These "patients" have most often turned out to be young adults who are not sick at all, but have secured a physician's written recommendation for marijuana use by simply paying the required fee demanded for this document without even first undergoing a physical examination. Too often "medical marijuana" has been used as a smokescreen for those who want to legalize it and profit off it, and storefront dispensaries established as cover for selling an illegal substance for a lucrative return. © 2009 California Police Chiefs Assn. VI 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 Bernardino County Sheriffs Department INTRODUCTION In November of 1996, California voters passed Proposition 215. The initiative set out to make marijuana available to people with certain illnesses. The initiative was later supplemented by the Medical Marijuana Program Act. Across the state, counties and municipalities have varied in their responses to medical marijuana. Some have allowed businesses to open and provide medical marijuana. Others have disallowed all such establishments within their borders. Several once issued business licenses allowing medical marijuana stores to operate, but no longer do so. This paper discusses the legality of both medical marijuana and the businesses that make it available, and more specifically, the problems associated with medical marijuana and marijuana dispensaries, under whatever name they operate. FEDERAL LAW Federal law clearly and unequivocally states that all marijuana -related activities are illegal. Consequently, all people engaged in such activities are subject to federal prosecution. The United States Supreme Court has ruled that this federal regulation supersedes any state's regulation of marijuana — even California's. (Gonzales v. Raich (2005) 125 S.Ct. 2195, 2215.) "The Supremacy Clause unambiguously provides that if there is any conflict between federal law and state law, federal law shall prevail." (Gonzales v. Raich, supra.) Even more recently, the 91h Circuit Court of Appeals found that there is no fundamental right under the United States Constitution to even use medical marijuana. (Raich v. Gonzales (9th Cir. 2007) 500 F.3d 850, 866.) In Gonzales v. Raich, the High Court declared that, despite the attempts of several states to partially legalize marijuana, it continues to be wholly illegal since it is classified as a Schedule I drug under federal law. As such, there are no exceptions to its illegality. (2l USC secs. 812(c), 841(a)(1).) Over the past thirty years, there have been several attempts to have marijuana reclassified to a different schedule which would permit medical use of the drug. All of these attempts have failed. (See Gonzales v. Raich (2005) 125 S.Ct. 2195, In. 23.) The mere categorization of marijuana as "medical" by some states fails to carve out any legally recognized exception regarding the drug. Marijuana, in any form, is neither valid nor legal. Clearly the United States Supreme Court is the highest court in the land. Its decisions are final and binding upon all lower courts. The Court invoked the United States Supremacy Clause and the Commerce Clause in reaching its decision. The Supremacy Clause declares that all laws made in pursuance of the Constitution shall be the "supreme law of the land" and shall be legally superior to any conflicting provision of a state constitution or law. 1 The Commerce Clause states that "the © 2009 California Police Chiefs Assn. 1 All Rights Reserved Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."Z Gonzales v. Raich addressed the concerns of two California individuals growing and using marijuana under California's medical marijuana statute. The Court explained that under the Controlled Substances Act marijuana is a Schedule I drug and is strictly regulated .3 "Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment."4 (21 USC sec. 812(b)(1).) The Court ruled that the Commerce Clause is applicable to California individuals growing and obtaining marijuana for their own personal, medical use. Under the Supremacy Clause, the federal regulation of marijuana, pursuant to the Commerce Clause, supersedes any state's regulation, including California's. The Court found that the California statutes did not provide any federal defense if a person is brought into federal court for cultivating or possessing marijuana. Accordingly, there is no federal exception for the growth, cultivation, use or possession of marijuana and all such activity remains illegal .5 California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 do not create an exception to this federal law. All marijuana activity is absolutely illegal and subject to federal regulation and prosecution. This notwithstanding, on March 19, 2009, U.S. Attorney General Eric Holder, Jr. announced that under the new Obama Administration the U.S. Department of Justice plans to target for prosecution only those marijuana dispensaries that use medical marijuana dispensing as a front for dealers of illegal drugs .6 CALIFORNIA LAW Generally, the possession, cultivation, possession for sale, transportation, distribution, furnishing, and giving away of marijuana is unlawful under California state statutory law. (See Cal. Health & Safety Code secs. 11357-11360.) But, on November 5, 1996, California voters adopted Proposition 215, an initiative statute authorizing the medical use of marijuana.7 The initiative added California Health and Safety code section 11362.5, which allows "seriously ill Californians the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician ...."" The codified section is known as the Compassionate Use Act of 1996.9 Additionally, the State Legislature passed Senate Bill 420 in 2003. It became the Medical Marijuana Program Act and took effect on January 1, 2004.10 This act expanded the definitions of "patient" and "primary caregiveri11 and created guidelines for identification cards. 12 It defined the amount of marijuana that "patients," and "primary caregivers" can possess. 13 It also created a limited affirmative defense to criminal prosecution for qualifying individuals that collectively gather to cultivate medical marijuana, 14 as well as to the crimes of marijuana possession, possession for sale, transportation, sale, 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 member of a legally recognized "cooperative," as those terms are defined within the statutory scheme. Nevertheless, there is no provision in any of these laws that authorizes or protects the establishment of a "dispensary" or other storefront marijuana distribution operation. Despite their illegality in the federal context, the medical marijuana laws in California are specific. The statutes craft narrow affirmative defenses for particular individuals with respect to enumerated marijuana activity. All conduct, and people engaging in it, that falls outside of the statutes' parameters remains illegal under California law. Relatively few individuals will be able to assert the affirmative defense in the statute. To use it a person must be a "qualified patient," "primary caregiver," or a member of a "cooperative." Once they are charged with a crime, if a person can prove an applicable legal status, they are entitled to assert this statutory defense. © 2009 California Police Chiefs Assn. 2 All Rights Reserved Former California Attorney General Bill Lockyer has also spoken about medical marijuana, and strictly construed California law relating to it. His office issued a bulletin to California law enforcement agencies on June 9, 2005. The office expressed the opinion that Gonzales v. Raich did not address the validity of the California statutes and, therefore, had no effect on California law. The office advised law enforcement to not change their operating procedures. Attorney General Lockyer made the recommendation that law enforcement neither arrest nor prosecute "individuals within the legal scope of California's Compassionate Use Act." Now the current California Attorney General, Edmund G. Brown, Jr., has issued guidelines concerning the handling of issues relating to California's medical marijuana laws and marijuana dispensaries. The guidelines are much tougher on storefront dispensaries—generally finding them to be unprotected, illegal drug-trafficking enterprises if they do not fall within the narrow legal definition of a "cooperative"—than on the possession and use of marijuana upon the recommendation of a physician. When California's medical marijuana laws are strictly construed, it appears that the decision in Gonzales v. Raich does affect California law. However, provided that federal law does not preempt California law in this area, it does appear that the California statutes offer some legal protection to "individuals within the legal scope of the acts. The medical marijuana laws speak to patients, primary caregivers, and true collectives. These people are expressly mentioned in the statutes, and, if their conduct comports to the law, they may have some state legal protection for specified marijuana activity. Conversely, all marijuana establishments that fall outside the letter and spirit of the statutes, including dispensaries and storefront facilities, are not legal. These establishments have no legal protection. Neither the former California Attorney General's opinion nor the current California Attorney General's guidelines present a contrary view. Nevertheless, without specifically addressing marijuana dispensaries, Attorney General Brown has sent his deputies attorney general to defend the codified Medical Marijuana Program Act against court challenges, and to advance the position that the state's regulations promulgated to enforce the provisions of the codified Compassionate Use Act (Proposition 215), including a statewide database and county identification card systems for marijuana patients authorized by their physicians to use marijuana, are all valid. 1. Conduct California Health and Safety Code sections 11362.765 and 11362.775 describe the conduct for which the affirmative defense is available. If a person qualifies as a "patient," "primary caregiver," or is a member of a legally recognized "cooperative," he or she has an affirmative defense to possessing a defined amount of marijuana. Under the statutes no more than eight ounces of dried marijuana can be possessed. Additionally, either six mature or twelve immature plants may be possessed. 15 If a person claims patient or primary caregiver status, and possesses more than this amount of marijuana, he or she can be prosecuted for drug possession. The qualifying individuals may also cultivate, plant, harvest, dry, and/or process marijuana, but only while still strictly observing the permitted amount of the drug. The statute may also provide a limited affirmative defense for possessing marijuana for sale, transporting it, giving it away, maintaining a marijuana house, knowingly providing a space where marijuana can be accessed, and creating a narcotic nuisance. 16 However, for anyone who cannot lay claim to the appropriate status under the statutes, all instances of marijuana possession, cultivation, planting, harvesting, drying, processing, possession for the purposes of sales, completed sales, giving away, administration, transportation, maintaining of marijuana houses, knowingly providing a space for marijuana activity, and creating a narcotic nuisance continue to be illegal under California law. © 2009 California Police Chiefs Assn. 3 All Rights Reserved 2. Patients and Cardholders A dispensary obviously is not a patient or cardholder. A "qualified patient" is an individual with a physician's recommendation that indicates marijuana will benefit the treatment of a qualifying illness. (Cal. H&S Code secs. I I362.5(b)(1)(A) and I I362.7(f).) Qualified illnesses include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides reliefs 7 A physician's recommendation that indicates medical marijuana will benefit the treatment of an illness is required before a person can claim to be a medical marijuana patient. Accordingly, such proof is also necessary before a medical marijuana affirmative defense can be claimed. A "person with an identification card" means an individual who is a qualified patient who has applied for and received a valid identification card issued by the State Department of Health Services. (Cal. H&S Code secs. 11362.7(c) and 11362.7(g).) 3. Primary Caregivers The only person or entity authorized to receive compensation for services provided to patients and cardholders is a primary caregiver. (Cal. H&S Code sec. 11362.77(c).) However, nothing in the law authorizes any individual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code sec. 11362.765(a).) It is important to note that it is almost impossible for a storefront marijuana business to gain true primary caregiver status. Businesses that call themselves "cooperatives," but function like storefront dispensaries, suffer this same fate. In People v. Mower, the court was very clear that the defendant had to prove he was a primary caregiver in order to raise the medical marijuana affirmative defense. Mr. Mower was prosecuted for supplying two people with marijuana. 18 He claimed he was their primary caregiver under the medical marijuana statutes. This claim required him to prove he "consistently had assumed responsibility for either one's housing, health, or safety" before he could assert the defense. 19 (Emphasis added.) The key to being a primary caregiver is not simply that marijuana is provided for a patient's health; the responsibility for the health must be consistent; it must be independent of merely providing marijuana for a qualified person; and such a primary caregiver -patient relationship must begin before or contemporaneously with the time of assumption of responsibility for assisting the individual with marijuana. (People v. Mentch (2008) 45 CalAth 274, 283.) Any relationship a storefront marijuana business has with a patient is much more likely to be transitory than consistent, and to be wholly lacking in providing for a patient's health needs beyond just supplying him or her with marijuana. A "primary caregiver" is an individual or facility that has "consistently assumed responsibility for the housing, health, or safety of a patient" over time. (Cal. H&S Code sec. 11362.5(e).) "Consistency" is the key to meeting this definition. A patient can elect to patronize any dispensary that he or she chooses. The patient can visit different dispensaries on a single day or any subsequent day. The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. But, in light of the holding in People v. Mentch, supra, to qualify as a primary caregiver, more aid to a person's health must occur beyond merely dispensing marijuana to a given 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, in most circumstances the primary caregiver must be at least 18 years of age. © 2009 California Police Chiefs Assn. 4 All Rights Reserved The courts have found that the act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make that person one. (See People ex rel. Lungren v. Peron (1997) 59 Cal.AppAth 1383, 1390: "One maintaining a source of marijuana supply, from which all members of the public qualified as permitted medicinal users may or may not discretionarily elect to make purchases, does not thereby become the party `who has consistently assumed 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 when setting forth what types of facilities could qualify as "primary caregivers." Those included in the list clearly show the Legislature's intent to restrict the definition to one involving a significant and long-term commitment to the patient's health, safety, and welfare. The only facilities which the Legislature authorized to serve as "primary caregivers" are clinics, health care facilities, residential care facilities, home health agencies, and hospices which actually provide medical care or supportive services to qualified patients. (Cal. H&S Code sec. 11362.7(d)(1).) Any business that cannot prove that its relationship with the patient meets these requirements is not a primary caregiver. Functionally, the business is a drug dealer and is subject to prosecution as such. 4. Cooperatives and Collectives According to the California Attorney General's recently issued Guidelines for the Security and Non - Diversion of Marijuana Grown for Medical Use, unless they meet stringent requirements, dispensaries also cannot reasonably claim to be cooperatives or collectives. In passing the Medical Marijuana Program Act, the Legislature sought, in part, to enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation programs. (People v. Urziceanu (2005) 132 Cal.AppAth 747, 881.) The Act added section 11362.775, which provides that "Patients and caregivers who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions" for the crimes of marijuana possession, possession for sale, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana. However, there is no authorization for any individual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code sec. 11362.77(a).) If a dispensary is only a storefront distribution operation open to the general public, and there is no indication that it has been involved with growing or cultivating marijuana for the benefit of members as a non-profit enterprise, it will not qualify as a cooperative to exempt it from criminal penalties under California's marijuana laws. Further, the common dictionary definition of "collectives" is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess "the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy, or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members."20 Marijuana businesses, of any kind, do not normally meet this legal definition. © 2009 California Police Chiefs Assn. b All Rights Reserved Based on the foregoing, it is clear that virtually all marijuana dispensaries are not legal enterprises under either federal or state law. LAWS IN OTHER STATES Besides California, at the time of publication of this White Paper, thirteen other states have enacted medical marijuana laws on their books, whereby to some degree marijuana recommended or prescribed by a physician to a specified patient may be legally possessed. These states are Alaska, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington. And, possession of marijuana under one ounce has now been decriminalized in Massachusetts. 21 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES Since the passage of the Compassionate Use Act of 1996, many storefront marijuana businesses have opened in California. 22 Some are referred to as dispensaries, and some as cooperatives; but it is how they operate that removes them from any umbrella of legal protection. These facilities operate as if they are pharmacies. Most offer different types and grades of marijuana. Some offer baked goods that contain marijuana. 23 Monetary donations are collected from the patient or primary caregiver when marijuana or food items are received. The items are not technically sold since that would be a criminal violation of the statutes. 24 These facilities are able to operate because they apply for and receive business licenses from cities and counties. Federally, all existing storefront marijuana businesses are subject to search and closure since they violate federal law.L5 Their mere existence violates federal law. Consequently, they have no right to exist or operate, and arguably cities and counties in California have no authority to sanction them. Similarly, in California there is no apparent authority for the existence of these storefront marijuana businesses. The Medical Marijuana Program Act of 2004 allows patients and primary caregivers to grow and cultivate marijuana, and no one else. 26 Although California Health and Safety Code section 11362.775 offers some state legal protection for true collectives and cooperatives, no parallel protection exists in the statute for any storefront business providing any narcotic. The common dictionary definition of collectives is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess "the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services famished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members."27 Marijuana businesses, of any kind, do not meet this legal definition. Actual medical dispensaries are commonly defined as offices in hospitals, schools, or other institutions from which medical supplies, preparations, and treatments are dispensed. Hospitals, hospices, home health care agencies, and the like are specifically included in the code as primary caregivers as long as they have "consistently assumed responsibility for the housing, health, or safety" of a patient .2s Clearly, it is doubtful that any of the storefront marijuana businesses 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 illegality, some cities do have existing and operational dispensaries. Assuming, arguendo, that they may operate, it may be helpful to review the mechanics of the business. The former Green Cross dispensary in San Francisco illustrates how a typical marijuana dispensary works .29 A guard or employee may check for medical marijuana cards or physician recommendations at the entrance. Many types and grades of marijuana are usually available. Although employees are neither pharmacists nor doctors, sales clerks will probably make recommendations about what type of marijuana will best relieve a given medical symptom. Baked goods containing marijuana may be available and sold, although there is usually no health permit to sell baked goods. The dispensary will give the patient a form to sign declaring that the dispensary is their "primary caregiver" (a process fraught with legal difficulties). The patient then selects the marijuana desired and is told what the "contribution" will be for the product. The California Health & Safety Code specifically prohibits the sale of marijuana to a patient, so "contributions" are made to reimburse the dispensary for its time and care in making "product" available. However, if a calculation is made based on the available evidence, it is clear that these "contributions" can easily add up to millions of dollars per year. That is a very large cash flow for a "non-profit" organization denying any participation in the retail sale of narcotics. Before its application to renew its business license was denied by the City of San Francisco, there were single days that Green Cross sold $45,000 worth of marijuana. On Saturdays, Green Cross could sell marijuana to forty-three patients an hour. The marijuana sold at the dispensary was obtained from growers who brought it to the store in backpacks. A medium- sized backpack would hold approximately $16,000 worth of marijuana. Green Cross used many different marijuana growers. It is clear that dispensaries are running as if they are businesses, not legally valid cooperatives. Additionally, they claim to be the "primary caregivers" of patients. This is a spurious claim. As discussed above, the term "primary caregiver" has a very specific meaning and defined legal qualifications. A primary caregiver is an individual who has "consistently assumed responsibility for the housing, health, or safety of a patient." 30 The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. If more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. In most circumstances the primary caregiver must be at least 18 years of age. It is almost impossible for a storefront marijuana business to gain true primary caregiver status. A business would have to prove that it "consistently had assumed responsibility for [a patient's] housing, health, or safety."3 ' The key to being a primary caregiver is not simply that marijuana is provided for a patient's health: the responsibility for the patient's health must be consistent. As seen in the Green Cross example, a storefront marijuana business's relationship with a patient is most likely transitory. In order to provide a qualified patient with marijuana, a storefront marijuana business must create an instant "primary caregiver" relationship with him. The very fact that the relationship is instant belies any consistency in their relationship and the requirement that housing, health, or safety is consistently provided. Courts have found that a patient's act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make that person one. The © 2009 California Police Chiefs Assn. 7 All Rights Reserved consistent relationship demanded by the statute is mere fiction if it can be achieved between an 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 cooperatives. They are many. Besides flouting federal law by selling a prohibited Schedule I drug under the Controlled Substances Act, marijuana dispensaries attract or cause numerous ancillary social problems as byproducts of their operation. The most glaring of these are other criminal acts. ANCILLARY CRIMES A. ARMED ROBBERIES AND MURDERS Throughout California, many violent crimes have been committed that can be traced to the proliferation of marijuana dispensaries. These include armed robberies and murders. For example, as far back as 2002, two home occupants were shot in Willits, California in the course of a home - invasion robbery targeting medical marijuana. 32 And, a series of four armed robberies of a marijuana dispensary in Santa Barbara, California occurred through August 10, 2006, in which thirty dollars and fifteen baggies filled with marijuana on display were taken by force and removed from the premises in the latest holdup. The owner said he failed to report the first three robberies because "medical marijuana is such a controversial issue." 33 On February 25, 2004, in Mendocino County two masked thugs committed a home invasion robbery to steal medical marijuana. They held a knife to a 65 -year-old man's throat, and though he fought back, managed to get away with large amounts of marijuana. They were soon caught, and one of the men received a sentence of six years in state prison. 34 And, on August 19, 2005, 18 -year-old Demarco Lowrey was "shot in the stomach" and "bled to death" during a gunfight with the business owner when he and his friends attempted a takeover robbery of a storefront marijuana business in the City of San Leandro, California. The owner fought back with the hooded home invaders, and a gun battle ensued. Demarco Lowery was hit by gunfire and "dumped outside the emergency entrance of Children's Hospital Oakland" after the shootout.35 He did not survive. 36 Near Hayward, California, on September 2, 2005, upon leaving a marijuana dispensary, a patron of the CCA Cannabis Club had a gun put to his head as he was relieved of over $250 worth of pot. Three weeks later, another break-in occurred at the Garden of Eden Cannabis Club in September of 2005.37 Another known marijuana -dispensary -related murder occurred on November 19, 2005. Approximately six gun- and bat -wielding burglars broke into Les Crane's home in Laytonville, California while yelling, "This is a raid." Les Crane, who owned two storefront marijuana businesses, was at home and shot to death. He received gunshot wounds to his head, arm, and abdomen. 38 Another man present at the time was beaten with a baseball bat. The murderers left the home after taking an unknown sum of U.S. currency and a stash of processed marijuana. 39 Then, on January 9, 2007, marijuana plant cultivator Rex Farrance was shot once in the chest and killed in his own home after four masked intruders broke in and demanded money. When the homeowner ran to fetch a firearm, he was shot dead. The robbers escaped with a small amount of © 2009 California Police Chiefs Assn. 8 All Rights Reserved cash and handguns. Investigating officers counted 109 marijuana plants in various phases of cultivation inside the house, along with two digital scales and just under 4 pounds of cultivated marijuana. 40 More recently in Colorado, Ken Gorman, a former gubernatorial candidate and dispenser of marijuana who had been previously robbed over twelve times at his home in Denver, was found murdered by gunshot inside his home. He was a prominent proponent of medical marijuana and the legalization of marijuana. 41 B. BURGLARIES In June of 2007, after two burglarizing youths in Bellflower, California were caught by the homeowner trying to steal the fruits of his indoor marijuana grow, he shot one who was running away, and killed him. 42 And, again in January of 2007, Claremont Councilman Corey Calaycay went on record calling marijuana dispensaries "crime magnets" after a burglary occurred in one in Claremont, California.as On July 17, 2006, the EI Cerrito City Council voted to ban all such marijuana facilities. It did so after reviewing a nineteen -page report that detailed a rise in crime near these storefront dispensaries in other cities. The crimes included robberies, assaults, burglaries, murders, and attempted murders. 4 Even though marijuana storefront businesses do not currently exist in the City of Monterey Park, California, it issued a moratorium on them after studying the issue in August of 2006 45 After allowing these establishments to operate within its borders, the City of West Hollywood, California passed a similar moratorium. The moratorium was "prompted 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 ...."46 C. TRAFFIC, NOISE, AND DRUG DEALING Increased noise and pedestrian traffic, including nonresidents in pursuit of marijuana, and out of area criminals in search of prey, are commonly encountered just outside marijuana dispensaries '47 as well as drug-related offenses in the vicinity—like resales of products just obtained inside—since these marijuana centers regularly attract marijuana growers, drug users, and drug traffickers. 48 Sharing just purchased marijuana outside dispensaries also regularly takes place. 19 Rather than the "seriously ill," for whom medical marijuana was expressly intended,50 "'perfectly healthy' young people frequenting dispensaries" are a much more common sight.51 Patient records seized by law enforcement officers from dispensaries during raids in San Diego County, California in December of 2005 "showed that 72 percent of patients were between 17 and 40 years old ....„s2 Said one admitted marijuana trafficker, "The people I deal with are the same faces I was dealing with 12 years ago but now, because of Senate Bill 420, they are supposedly legit. I can totally see why cops are bummed .,,53 Reportedly, a security guard sold half a pound of marijuana to an undercover officer just outside a dispensary in Morro Bay, California. 54 And, the mere presence of marijuana dispensaries encourages illegal growers to plant, cultivate, and transport ever more marijuana, in order to supply and sell their crops to these storefront operators in the thriving medical marijuana dispensary market, so that the national domestic marijuana yield has been estimated to be 35.8 billion dollars, of which a 13.8 billion dollar share is California grown. 55 It is a big business. And, although the operators of some dispensaries will claim that they only accept monetary contributions for the products they © 2009 California 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 about organized crime involvement in the ownership and operation of marijuana dispensaries, including Asian and other criminal street gangs and at least one member of the Armenian Mafia.sb The dispensaries or "pot clubs" are often used as a front by organized crime gangs to traffic in drugs and launder money. One such gang whose territory included San Francisco and Oakland, California reportedly ran a multi-million dollar business operating ten warehouses in which vast amounts of marijuana plants were grown. 57 Besides seizing over 9,000 marijuana plants during surprise raids on this criminal enterprise's storage facilities, federal officers also confiscated three firearms, 58 which seem to go hand in hand with medical marijuana cultivation and dispensaries. 59 Marijuana storefront businesses have allowed criminals to flourish in California. In the summer of 2007, the City of San Diego cooperated with federal authorities and served search warrants on several marijuana dispensary locations. In addition to marijuana, many weapons were recovered, including a stolen handgun and an M-16 assault rifle. 60 The National Drug Intelligence Center reports that marijuana growers are employing armed guards, using explosive booby traps, and murdering people to shield their crops. Street gangs of all national origins are involved in transporting and distributing marijuana to meet the ever increasing demand for the drug. 61 Active Asian gangs have included members of Vietnamese organized crime syndicates who have migrated from Canada to buy homes throughout the United States to use as grow houses. ` Some or all of the processed harvest of marijuana plants nurtured in these homes then wind up at storefront marijuana dispensaries owned and operated by these gangs. Storefront marijuana businesses are very dangerous enterprises that thrive on ancillary grow operations. Besides fueling marijuana dispensaries, some monetary proceeds from the sale of harvested marijuana derived from plants grown inside houses are being used by organized crime syndicates to fund other legitimate businesses for profit and the laundering of money, and to conduct illegal business operations like prostitution, extortion, and drug trafficking. 63 Money from residential grow operations is also sometimes traded by criminal gang members for firearms, and used to buy drugs, personal vehicles, and additional houses for more grow operations, 64 and along with the illegal income derived from large-scale organized crime -related marijuana production operations comes widespread income tax evasion. 65 E. POISONINGS Another social problem somewhat unique to marijuana dispensaries is poisonings, both intentional and unintentional. On August 16, 2006, the Los Angeles Police Department received two such reports. One involved a security guard who ate a piece of cake extended to him from an operator of a marijuana clinic as a "gift," and soon afterward felt dizzy and disoriented .66 The second incident concerned a UPS driver who experienced similar symptoms after accepting and eating a cookie given to him by an operator of a different marijuana clinic.6i © 2009 California Police Chiefs Assn. 10 All Rights Reserved OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES Other adverse secondary impacts from the operation of marijuana dispensaries include street dealers lurking about dispensaries to offer a lower price for marijuana to arriving patrons; marijuana smoking in public and in front of children in the vicinity of dispensaries; loitering and nuisances; acquiring marijuana and/or money by means of robbery of patrons going to or leaving dispensaries; an increase in burglaries at or near dispensaries; a loss of trade for other commercial businesses located near dispensaries; the sale at dispensaries of other illegal drugs besides marijuana; an increase in traffic accidents and driving under the influence arrests in which marijuana is implicated; and the failure of marijuana dispensary operators to report robberies to police. 68 SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE A. UNJUSTIFIED AND FICTITIOUS PHYSICIAN RECOMMENDATIONS California's legal requirement under California Health and Safety Code section 11362.5 that a physician's recommendation is required for a patient or caregiver to possess medical marijuana has resulted in other undesirable outcomes: wholesale issuance of recommendations by unscrupulous physicians seeking a quick buck, and the proliferation of forged or fictitious physician recommendations. Some doctors link up with a marijuana dispensary and take up temporary residence in a local hotel room where they advertise their appearance in advance, and pass out medical marijuana use recommendations to a line of "patients" at "about $150 a pop."69 Other individuals just make up their own phony doctor recommendations, 70 which are seldom, if ever, scrutinized by dispensary employees for authenticity. Undercover DEA agents sportin� fake medical marijuana recommendations were readily able to purchase marijuana from a clinic. 1 Far too often, California's medical marijuana law is used as a smokescreen for healthy pot users to get their desired drug, and for proprietors of marijuana dispensaries to make money off them, without suffering any legal repercussions .72 On March 11, 2009, the Osteopathic Medical Board of California adopted the proposed decision revoking Dr. Alfonso Jimenez's Osteopathic Physician's and Surgeon's Certificate and ordering him to pay $74,323.39 in cost recovery. Dr. Jimenez operated multiple marijuana clinics and advertised his services extensively on the Internet. Based on information obtained from raids on marijuana dispensaries in San Diego, in May of 2006, the San Diego Police Department ran two undercover operations on Dr. Jimenez's clinic in San Diego. In January of 2007, a second undercover operation was conducted by the Laguna Beach Police Department at Dr. Jimenez's clinic in Orange County. Based on the results of the undercover operations, the Osteopathic Medical Board charged Dr. Jimenez with gross negligence and repeated negligent acts in the treatment of undercover operatives posing as patients. After a six-day hearing, the Administrative Law Judge (ALJ) issued her decision finding that Dr. Jimenez violated the standard of care by committing gross negligence and repeated negligence in care, treatment, and management of patients when he, among other things, issued medical marijuana recommendations to the undercover agents without conducting adequate medical examinations, failed to gain proper informed consent, and failed to consult with any primary care and/or treating physicians or obtain and review prior medical records before issuing medical marijuana recommendations. The ALJ also found Dr. Jimenez engaged in dishonest behavior by preparing false and/or misleading medical records and disseminating false and misleading advertising to the public, including representing himself as a "Cannabis Specialist" and "Qualified Medical Marijuana Examiner" when no such formal specialty or qualification existed. Absent any © 2009 California Police Chiefs Assn. 11 All Rights Reserved 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 the purchase for purpose of marijuana grow operations of small dwellings to "high priced McMansions ...."73 Mushrooming residential marijuana grow operations have been detected in California, Connecticut, Florida, Georgia, New Hampshire, North Carolina, Ohio, South Carolina, and Texas. 74 In 2007 alone, such illegal operations were detected and shut down by federal and state law enforcement officials in 41 houses in California, 50 homes in Florida, and 11 homes in New Hampshire. 75 Since then, the number of residences discovered to be so impacted has increased exponentially. Part of this recent influx of illicit residential grow operations is because the "THC -rich `B.C. bud' strain" of marijuana originally produced in British Columbia "can be grown only in controlled indoor environments," and the Canadian market is now reportedly saturated with the product of "competin� Canadian gangs," often Asian in composition or outlaw motorcycle gangs like the Hells Angels. 6 Typically, a gutted house can hold about 1,000 plants that will each yield almost half a pound of smokable marijuana; this collectively nets about 500 pounds of usable marijuana per harvest, with an average of three to four harvests per year. 77 With a street value of $3,000 to $5,000 per pound" for high -potency marijuana, and such multiple harvests, "a successful grow house can bring in between $4.5 million and $10 million a year ...." 8 The high potency of hydroponically grown marijuana can command a price as much as six times higher than commercial grade marijuana.79 C. LIFE SAFETY HAZARDS CREATED BY GROW HOUSES In Humboldt County, California, structure fires caused by unsafe indoor marijuana grow operations have become commonplace. The city of Arcata, which sports four marijuana dispensaries, was the site of a house fire in which a fan had fallen over and ignited a fire; it had been turned into a grow house by its tenant. Per Arcata Police Chief Randy Mendosa, altered and makeshift "no code" electrical service connections and overloaded wires used to operate high-powered grow lights and fans are common causes of the fires. Large indoor marijuana growing operations can create such excessive draws of electricity that PG&E power pole transformers are commonly blown. An average 1,500 - square -foot tract house used for growing marijuana can generate monthly electrical bills from $1,000 to $3,000 per month. From an environmental standpoint, the carbon footprint from greenhouse gas emissions created by large indoor marijuana grow operations should be a major concern for every community in terms of complying with Air Board AB -32 regulations, as well as other greenhouse gas reduction policies. Typically, air vents are cut into roofs, water seeps into carpeting, windows are blacked out, holes are cut in floors, wiring is jury-rigged, and electrical circuits are overloaded to operate grow lights and other apparatus. When fires start, they spread quickly. The May 31, 2008 edition of the Los Angeles Times reported, "Law enforcement officials estimate that as many as 1,000 of the 7,500 homes in this Humboldt County community are being used to cultivate marijuana, slashing into the housing stock, spreading building -safety problems and sowing neighborhood discord." Not surprisingly, in this bastion of liberal pot possession rules that authorized the cultivation of up to 99 plants for medicinal purpose, most structural fires in the community of Arcata have been of late associated with marijuana cultivation. 80 Chief of Police Mendosa clarified that the actual number of marijuana grow houses in Arcata has been an ongoing subject of public debate. Mendosa added, "We know there are numerous grow houses in almost every neighborhood in and around the city, which has been the source of constant citizen complaints." House fires caused by © 2009 California Police Chiefs Assn. 12 All Rights Reserved grower -installed makeshift electrical wiring or tipped electrical fans are now endemic to Humboldt County. 8 1 Chief Mendosa also observed that since marijuana has an illicit street value of up to $3,000 per pound, marijuana grow houses have been susceptible to violent armed home invasion robberies. Large-scale marijuana grow houses have removed significant numbers of affordable houses from the residential rental market. When property owners discover their rentals are being used as grow houses, the residences are often left with major structural damage, which includes air vents cut into roofs and floors, water damage to floors and walls, and mold. The June 9, 2008 edition of the New York Times shows an unidentified Arcata man tending his indoor grow; the man claimed he can make $25,000 every three months by selling marijuana grown in the bedroom of his rented house. 82 Claims of ostensible medical marijuana growing pursuant to California's medical marijuana laws are being advanced as a mostly false shield in an attempt to justify such illicit operations. Neither is fire an uncommon occurrence at grow houses elsewhere across the nation. Another occurred not long ago in Holiday, Florida. 83 To compound matters further, escape routes for firefighters are often obstructed by blocked windows in grow houses, electric wiring is tampered with to steal electricity, and some residences are even booby -trapped to discourage and repel unwanted intruders. 84 D. INCREASED ORGANIZED GANG ACTIVITIES Along with marijuana dispensaries and the grow operations to support them come members of organized criminal gangs to operate and profit from them. Members of an ethnic Chinese drug gang were discovered to have operated 50 indoor grow operations in the San Francisco Bay area, while Cuban -American crime organizations have been found to be operating grow houses in Florida and elsewhere in the South. A Vietnamese drug ring was caught operating 19 grow houses in Seattle and Puget Sound, Washington."5 In July of 2008, over 55 Asian gang members were indicted for narcotics trafficking in marijuana and ecstasy, including members of the Hop Sing Gang that had been actively operating marijuana grow operations in Elk Grove and elsewhere in the vicinity of Sacramento, California. 96 E. EXPOSURE OF MINORS TO MARIJUANA Minors who are exposed to marijuana at dispensaries or residences where marijuana plants are grown may be subtly influenced to regard it as a generally legal drug, and inclined to sample it. In grow houses, children are exposed to dangerous fire and health conditions that are inherent in indoor grow operations. 87 Dispensaries also sell marijuana to minors."" F. IMPAIRED PUBLIC HEALTH Indoor marijuana grow operations emit a skunk -like odor,89 and foster generally unhealthy conditions like allowing chemicals and fertilizers to be placed in the open, an increased carbon dioxide level within the grow house, and the accumulation of mold, "0 all of which are dangerous to any children or adults who may be living in the residence, 91 although many grow houses are uninhabited. © 2009 California Police Chiefs Assn. 13 All Rights Reserved G. LOSS OF BUSINESS TAX REVENUE When business suffers as a result of shoppers staying away on account of traffic, blight, crime, and the undesirability of a particular business district known to be frequented by drug users and traffickers, and organized criminal 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 bring in the criminal element and loiterers, which in tum scare off potential business patrons of nearby legitimate businesses, causing loss of revenues and deterioration of the affected business district. Likewise, empty homes used as grow houses emit noxious odors in residential neighborhoods, project irritating sounds of whirring fans, 92 and promote the din of vehicles coming and going at all hours of the day and night. Near harvest time, rival growers and other uninvited enterprising criminals sometimes invade grow houses to beat "clip crews" to the site and rip off mature plants ready for harvesting. As a result, violence often erupts from confrontations in the affected residential neighborhood .93 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS On balance, any utility to medical marijuana patients in care giving and convenience that marijuana dispensaries may appear to have on the surface is enormously outweighed by a much darker reality that is punctuated by the many adverse secondary effects created by their presence in communities, recounted here. These drug distribution centers have even proven to be unsafe for their own proprietors. POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES A. IMPOSED MORATORIA BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While in the process of investigating and researching the issue of licensing marijuana dispensaries, as an interim measure city councils may enact date -specific moratoria that expressly prohibit the presence of marijuana dispensaries, whether for medical use or otherwise, and prohibiting the sale of marijuana in any form on such premises, anywhere within the incorporated boundaries of the city until a specified date. Before such a moratorium's date of expiration, the moratorium may then either be extended or a city ordinance enacted completely prohibiting or otherwise restricting the establishment and operation of marijuana dispensaries, and the sale of all marijuana products on such premises. County supervisors can do the same with respect to marijuana dispensaries sought to be established within the unincorporated areas of a county. Approximately 80 California cities, including the cities of Antioch, Brentwood, Oakley, Pinole, and Pleasant Hill, and 6 counties, including Contra Costa County, have enacted moratoria banning the existence of marijuana dispensaries. In a novel approach, the City of Arcata issued a moratorium on any new dispensaries in the downtown area, based on no agricultural activities being permitted to occur there .94 © 2009 California Police Chiefs Assn. 14 All Rights Reserved B. IMPOSED BANS BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While the Compassionate Use Act of 1996 permits seriously ill persons to legally obtain and use marijuana for medical purposes upon a physician's recommendation, it is silent on marijuana dispensaries and does not expressly authorize the sale of marijuana to patients or primary caregivers. Neither Proposition 215 nor Senate Bill 420 specifically authorizes the dispensing of marijuana in any form from a storefront business. And, no state statute presently exists that expressly permits the licensing or operation of marijuana dispensaries .95 Consequently, approximately 39 California cities, including the Cities of Concord and San Pablo, and 2 counties have prohibited marijuana dispensaries within their respective geographical boundaries, while approximately 24 cities, including the City of Martinez, and 7 counties have allowed such dispensaries to do business within their jurisdictions. Even the complete prohibition of marijuana dispensaries within a given locale cannot be found to run afoul of current California law with respect to permitted use of marijuana for medicinal purposes, so long as the growing or use of medical marijuana by a city or county resident in conformance with state law is not proscribed .96 In November of 2004, the City of Brampton in Ontario, Canada passed The Grow House Abatement By-law, which authorized the city council to appoint inspectors and local police officers to inspect suspected grow houses and render safe hydro meters, unsafe wiring, booby traps, and any violation of the Fire Code or Building Code, and remove discovered controlled substances and ancillary equipment designed to grow and manufacture such substances, at the involved homeowner's cost 97 And, after state legislators became appalled at the proliferation of for-profit residential grow operations, the State of Florida passed the Marijuana Grow House Eradication act (House Bill 173) in June of 2008. The governor signed this bill into law, making owning a house for the purpose of cultivating, packaging, and distributing marijuana a third-degree felony; growing 25 or more marijuana plants a second- degree felony; and growing "25 or more marijuana plants in a home with children present" a first- degree felony.9" It has been estimated that approximately 17,500 marijuana grow operations were active in late 200799 To avoid becoming a dumping ground for organized crime syndicates who decide to move their illegal grow operations to a more receptive legislative environment, California and other states might be wise to quickly follow suit with similar bills, for it may already be happening.100 C. IMPOSED RESTRICTED ZONING AND OTHER REGULATION BY ELECTED LOCAL GOVERNMENTAL OFFICIALS If so inclined, rather than completely prohibit marijuana dispensaries, through their zoning power city and county officials have the authority to restrict owner operators to locate and operate so-called "medical marijuana dispensaries" in prescribed geographical areas of a city or designated unincorporated areas of a county, and require them to meet prescribed licensing requirements before being allowed to do so. This is a risky course of action though for would-be dispensary operators, and perhaps lawmakers too, since federal authorities do not recognize any lawful right for the sale, purchase, or use of marijuana for medical use or otherwise anywhere in the United States, including California. Other cities and counties have included as a condition of licensure for dispensaries that the operator shall "violate no federal or state law," which puts any applicant in a "Catch-22" situation since to federal authorities any possession or sale of marijuana is automatically a violation of federal law. Still other municipalities have recently enacted or revised comprehensive ordinances that address a variety of medical marijuana issues. For example, according to the City of Arcata Community © 2009 California Police Chiefs Assn. 15 All Rights Reserved Development Department in Arcata, California, in response to constant citizen complaints from what had become an extremely serious community problem, the Arcata City Council revised its Land Use Standards for Medical Marijuana Cultivation and Dispensing. In December of 2008, City of Arcata Ordinance #1382 was enacted. It includes the following provisions: "Categories: 1. Personal Use 2. Cooperatives or Collectives Medical Marijuana for Personal Use: An individual qualified patient shall be allowed to cultivate medical marijuana within his/her private residence in conformance with the following standards: 1. Cultivation area shall not exceed 50 square feet and not exceed ten feet (101 in height. a. Cultivation lighting shall not exceed 1200 watts; b. Gas products (CO2, butane, etc.) for medical marijuana cultivation or processing is prohibited. C. Cultivation and sale is prohibited as a Home Occupation (sale or dispensing is prohibited). 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, bathrooms, and primary bedrooms shall not be used primarily for medical marijuana cultivation; g. Cultivation 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 nearby residents. 2. City Zoning Administrator my approve up to 100 square foot: a. Documentation showing why the 50 square foot cultivation area standard is not feasible. b. Include written permission from the property owner. C. City Building Official must inspect for California Building Code and Fire Code. d. At a minimum, the medical marijuana cultivation area shall be constructed with a 1 - hour firewall assembly of green board. e. Cultivation of medical marijuana for personal use is limited to detached single family residential properties, or the medical marijuana cultivation area shall be limited to a garage or self-contained outside accessory building that is secured, locked, and fully enclosed. Medical Marijuana Cooperatives or Collectives. 1. Allowed with a Conditional Use Permit. 2. In Commercial, Industrial, and Public Facility Zoning Districts. 3. Business form must be a cooperative or collective. 4. Existing cooperative or collective shall be in full compliance within one year. 5. Total number of medical marijuana cooperatives or collectives is limited to four and ultimately two. 6. Special consideration if located within a. A 300 foot radius from any existing residential zoning district, b. Within 500 feet of any other medical marijuana cooperative or collective. © 2009 California Police Chiefs Assn. 16 All Rights Reserved C. Within 500 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 case greater than 1,500 square feet and not exceed ten feet (10') in height. b. Off-site Permitted Cultivation. Use Permit application and be updated annually. C. Qualified Patients. Medical marijuana acquired from an individual qualified patient shall received no monetary remittance, and the qualified patient is a member of the medical marijuana cooperative or collective. Collective or cooperative may credit its members for medical marijuana provided to the collective or cooperative, which they may allocate to other members. 8. Operations Manual at a minimum include the following information: a. Staff screening process including appropriate background checks. b. Operating hours. C. Site, floor plan of the facility. d. Security measures located on the premises, including but not limited to, lighting, alarms, and automatic law enforcement notification. e. Screening, registration and validation process for qualified patients. f Qualified patient records acquisition and retention procedures. g. Process for tracking medical marijuana quantities and inventory controls including on-site cultivation, processing, and/or medical marijuana products received from outside sources. It. Measures taken to minimize or offset energy use from the cultivation or processing of medical marijuana. i. Chemicals stored, used and any effluent discharged into the City's wastewater and/or storm water system. 9. Operating Standards. a. No dispensing medical marijuana more than twice a day. b. Dispense to an individual qualified patient who has a valid, verified physician's recommendation. The medical marijuana cooperative or collective shall verify that the physician's recommendation is current and valid. C. Display the client rules and/or regulations at each building entrance. d. Smoking, ingesting or consuming medical marijuana on the premises or in the vicinity is prohibited. e. Persons under the age of eighteen (18) are precluded from entering the premises. f. No on-site display of marijuana plants. g. No distribution of live 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. Maintain all necessary permits, and pay all appropriate taxes. Medical marijuana cooperatives or collectives shall also provide invoices to vendors to ensure vendor's tax liability responsibility; j. Submit an "Annual Performance Review Report" which is intended to identify effectiveness of the approved 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. 10. 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 licenses to marijuana storefront facilities a very real issue has arisen: counties and cities are arguably aiding and abetting criminal violations of federal law. Such actions clearly put the counties permitting these establishments in very precarious legal positions. Aiding and abetting a crime occurs when someone commits a crime, the person aiding that crime knew the criminal offender intended to commit the crime, and the person aiding the crime intended to assist the criminal offender in the commission of the crime. The legal definition of aiding and abetting could be applied to counties and cities allowing marijuana facilities to open. A county that has been informed about the Gonzales v. Raich decision knows that all marijuana activity is federally illegal. Furthermore, such counties know that individuals involved in the marijuana business are subject to federal prosecution. When an 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 county also knows that those involved in providing and obtaining marijuana are intentionally violating federal law. This very problem is why some counties are re -thinking the presence of marijuana facilities in their communities. There is a valid fear of being prosecuted for aiding and abetting federal drug crimes. Presently, two counties have expressed concern that California's medical marijuana statutes have placed them in such a precarious legal position. Because of the serious criminal ramifications involved in issuing business permits and allowing storefront marijuana businesses to operate within their borders, San Diego and San Bernardino Counties filed consolidated lawsuits against the state seeking to prevent the State of California from enforcing its medical marijuana statutes which potentially subject them to criminal liability, and squarely asserting that California medical marijuana laws are preempted by federal law in this area. After California's medical marijuana laws were all upheld at the trial level, California's Fourth District Court of Appeal found that the State of California could mandate counties to adopt and enforce a voluntary medical marijuana identification card system, and the appellate court bypassed the preemption issue by finding that San Diego and San Bernardino Counties lacked standing to raise this challenge to California's medical marijuana laws. Following this state appellate court decision, independent petitions for review filed by the two counties were both denied by the California Supreme Court. Largely because of the quandary that county and city peace officers in California face in the field when confronted with alleged medical marijuana with respect to enforcement of the total federal criminal prohibition of all marijuana, and state exemption from criminal penalties for medical marijuana users and caregivers, petitions for a writ of certiorari were then separately filed by the two counties seeking review of this decision by the United States Supreme Court in the consolidated cases of County of San Diego, County of San Bernardino, and Cary Penrod, as Sheriff of the County of San Bernardino v. San Diego Norml, State of California, and Sandra Shewn', Director of the California Department of Health Services in her official capacitv, Ct.App. Case No. D-5-333.) The High Court has requested the State of California and other interested parties to file responsive briefs to the two counties' and Sheriff Penrod's writ petitions before it decides whether to grant or deny review of these consolidated cases. The petitioners would then be entitled to file a reply to any filed response. It is anticipated that the U.S. Supreme Court will formally grant or deny review of these consolidated cases in late April or early May of 2009. © 2009 California Police Chiefs Assn. 18 All Rights Reserved In another case, City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, although the federal preemption issue was not squarely raised or addressed in its decision, California's Fourth District Court of Appeal found that public policy considerations allowed a city standing to challenge a state trial court's order directing the return by a city police department of seized medical marijuana to a person determined to be a patient. After the court-ordered return of this federally banned substance was upheld at the intermediate appellate level, and not accepted for review by the California Supreme Court, a petition for a writ of certiorari was filed by the City of Garden Grove to the U.S. Supreme Court to consider and reverse the state appellate court decision. But, that petition was also denied. However, the case of People v. Kelly (2008) 163 Cal.AppAth 124—in which a successful challenge was made to California's Medical Marijuana Program's maximum amounts of marijuana and marijuana plants permitted to be possessed by medical marijuana patients (Cal. H&S Code sec. 11362.77 et seq.), which limits were found at the court of appeal level to be without legal authority for the state to impose—has been accepted for review by the California Supreme Court on the issue of whether this law was an improper amendment to Proposition 215's Compassionate 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 enforcement agency representatives in San Diego, California met many times to formulate a comprehensive strategy of how to deal with cases that may arise out of the new law. In the end it was decided to handle the matters on a case-by-case basis. In addition, questionnaires were developed for patient, caregiver, and physician interviews. At times patients without sales indicia but large grows were interviewed and their medical records reviewed in making issuing decisions. In other cases where sales indicia and amounts supported a finding of sales the cases were pursued. At most, two cases a month were brought for felony prosecution. In 2003, San Diego County's newly elected District Attorney publicly supported Prop. 215 and wanted her newly created Narcotics Division to design procedures to ensure patients were not caught up in case prosecutions. As many already know, law enforcement officers rarely arrest or seek prosecution of a patient who merely possesses personal use amounts. Rather, it is those who have sales amounts in product or cultivation who are prosecuted. For the next two years the District Attorney's Office proceeded as it had before. But, on the cases where the patient had too many plants or product but not much else to show sales—the DDAs assigned to review the case would interview and listen to input to respect the patient's and the DA's position. Some cases were rejected and others issued but the case disposition was often generous and reflected a "sin 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 business and physicians started to advertise their availability to issue recommendations for the purchase of medical marijuana. By spring of 2005 the first couple of dispensaries opened up—but they were discrete. This would soon change. By that summer, 7 to 10 dispensaries were open for business, and they were selling marijuana openly. In fact, the local police department was doing a small buy/walk project and one of its target dealers said he was out of pot but would go get some from the dispensary to sell to the undercover officer (UC); he did. It was the proliferation of dispensaries and ancillary crimes that prompted the San Diego Police Chief (the Chief was a Prop. 215 supporter who sparred with the Fresno DEA in his prior job over this issue) to authorize his officers to assist 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 enforcement could see exactly what was happening in the dispensaries. The investigation was initiated in December of 2005, after NTF received numerous citizen complaints regarding the crime and traffic associated with "medical marijuana dispensaries." The City of San Diego also saw an increase in crime related to the marijuana dispensaries. By then approximately 20 marijuana dispensaries had opened and were operating in San Diego County, and investigations on 15 of these dispensaries were initiated. During the investigation, NTF learned that all of the business owners were involved in the transportation and distribution of large quantities of marijuana, marijuana derivatives, and marijuana food products. In addition, several owners were involved in the cultivation of high grade marijuana. The business owners were making significant profits from the sale of these products and not properly reporting this income. Undercover Task Force Officers (TFO's) and SDPD Detectives were utilized to purchase marijuana and marijuana food products from these businesses. In December of 2005, thirteen state search warrants were executed at businesses and residences of several owners. Two additional follow-up search warrants and a consent search were executed the same day. Approximately 977 marijuana plants from seven indoor marijuana grows, 564.88 kilograms of marijuana and marijuana food products, one gun, and over $58,000 U.S. currency were seized. There were six arrests made during the execution of these search warrants for various violations, including outstanding warrants, possession of marijuana for sale, possession of psilocybin mushrooms, obstructing a police officer, and weapons violations. However, the owners and clerks were not arrested or prosecuted at this time just those who showed up with weapons or product to sell. Given the fact most owners could claim mistake of law as to selling (though not a legitimate defense, it could be a jury nullification defense) the DA's Office decided not to file cases at that time. It was hoped that the dispensaries would feel San Diego was hostile ground and they would do business elsewhere. Unfortunately this was not the case. Over the next few months seven of the previously 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 would be buying for themselves and they would have a second UC present at the time acting as UC 1's caregiver who also would buy. This was designed to show the dispensary was not the caregiver. There is no authority in the law for organizations to act as primary caregivers. Caregivers must be individuals who care for a marijuana patient. A primary caregiver is defined by Proposition 215, as codified in H&S Code section 11362.5(e), as, "For the purposes of this section, 'primary caregiver' means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." The goal was to show that the stores were only selling marijuana, and not providing care for the hundreds who bought from them. © 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 take down in July of 2006. The final attack was to reveal the doctors (the gatekeepers for medical marijuana) for the fraud they were committing. UCs from the local PD went in and taped the encounters to show that the pot docs did not examine the patients and did not render care at all; rather they merely sold a medical MJ recommendation whose duration depended upon the amount of money paid. In April of 2006, two state and two federal search warrants were executed at a residence and storage warehouse utilized to cultivate marijuana. Approximately 347 marijuana plants, over 21 kilograms of marijuana, and $2,855 U.S. currency were seized. Due to the pressure from the public, the United States Attorney's Office agreed to prosecute the owners of the businesses with large indoor marijuana grows and believed to be involved in money laundering activities. The District Attorney's Office agreed to prosecute the owners in the other investigations. In June of 2006, a Federal Grand Jury indicted six owners for violations of Title 21 USC, sections 846 and 841(a)(1), Conspiracy to Distribute Marijuana; sections 846 and 841(a), Conspiracy to Manufacture Marijuana; and Title 18 USC, Section 2, Aiding and Abetting. In July of 2006, 11 state and 11 federal search warrants were executed at businesses and residences associated with members of these businesses. The execution of these search warrants resulted in the arrest of 19 people, seizure of over $190,000 in U.S. currency and other assets, four handguns, one rifle, 405 marijuana plants from seven grows, and over 329 kilograms of marijuana and marijuana food products. Following the search warrants, two businesses reopened. An additional search warrant and consent search were executed at these respective locations. Approximately 20 kilograms of marijuana and 32 marijuana plants were seized. As a result, all but two of the individuals arrested on state charges have pled guilty. Several have already been sentenced and a few are still awaiting sentencing. All of the individuals indicted federally have also pled guilty and are awaiting sentencing. After the July 2006 search warrants ajoint press conference was held with the U.S. Attorney and District Attorney, during which copies of a complaint to the medical board, photos of the food products which were marketed to children, and the charts shown below were provided to the media. Directly after these several combined actions, there were no marijuana distribution businesses operating in San Diego County. Law enforcement agencies in the San Diego region have been able to successfully dismantle these businesses and prosecute the owners. As a result, medical marijuana advocates have staged a number of protests demanding DEA allow the distribution of marijuana. The closure of these businesses has reduced crime in the surrounding areas. © 2009 California Police Chiefs Assn. 21 All Rights Reserved 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 10 8 6 4 2 0 Reported Crime at Marijuana Dispensaries From January 1, 2005 through June 23, 2006 16 Burglary Attempted Criminal Attempted Armed Battery Burglary Threat Robbery Robbery Information showing the dispensaries attracted crime: The marijuana dispensaries were targets of violent crimes because of the amount of marijuana, currency, and other contraband stored inside the businesses. From January 1, 2005 through June 23, 20061 24 violent crimes were reported at marijuana dispensaries. An analysis of financial records seized from the marijuana dispensaries showed several dispensaries were grossing over $300,000 per month from selling marijuana and marijuana food products. The majority of customers purchased marijuana with cash. Crime statistics inadequately reflect the actual number of crimes committed at the marijuana dispensaries. 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 numerous 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 parking lot of the dispensaries © 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, the following observations (from citizen activists assisting in data gathering) were made about the marijuana dispensaries: • Identification was not requested for individuals who looked under age 18 • Entrance to business was not refused because of lack of identification • Individuals were observed loitering in the parking lots • Child -oriented businesses and recreational areas were situated nearby • Some businesses made no attempt to verify a submitted physician's recommendation Dispensary Patients By Age Ages 71-75, 4, 0% Ages 66-70, 19, 1 % Ages 76-80, 0, 0% Ages 61-65, 47, 2%1 Ages 81-85, 0, 0% Ages 56-60, 89, 3%l I No Age listed, 118, 4% Ages 51-55, 173, 60 / r.. Ages 17-20, 364, 12% Ages 46-50, 210, 7% Ages 41-45, 175, 6 Ages 36-40, 270, 90A \ /Ages 21-25, 719, 23% Ages 31-35, 302, 10% Ages 26-30, 504, 17% An analysis of patient records seized during search warrants at several dispensaries show that 52% of the customers purchasing marijuana were between the ages of 17 to 30. 63% of primary caregivers purchasing marijuana were between the ages of 18 through 30. Only 2.05% of customers submitted a physician's recommendation for AIDS, glaucoma, 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 owners had histories of drug and violence -related arrests. • The business owners were street -level marijuana dealers who took advantage of Prop. 215 in an attempt to legitimize marijuana sales for profit. • Records, or lack of records, seized during the search warrants showed that all the owners were not properly reporting income generated from the sales of marijuana. Many owners were involved in money laundering and tax evasion. • The businesses were selling to individuals without serious medical conditions. • There are no guidelines on the amount of marijuana which can be sold to an individual. For © 2009 California Police Chiefs Assn. 23 All Rights Reserved example, an individual with a physician's recommendation can go to as many marijuana distribution businesses and purchase as much marijuana as he/she wants. • California law allows an individual to possess 6 mature or 12 immature plants per qualified person. However, the San Diego Municipal Code states a "caregiver" can only provide care to 4 people, including themselves; this translates to 24 mature or 48 immature plants total. Many of these dispensaries are operating large marijuana grows with far more plants than allowed under law. Several of the dispensaries had indoor marijuana grows inside the businesses, with mature and/or immature marijuana plants over the limits. • State law allows a qualified patient or primary caregiver to possess no more than eight ounces of dried marijuana per qualified patient. However, the San Diego Municipal Code allows primary caregivers to possess no more than two pounds of processed marijuana. Under either law, almost every marijuana dispensary had over two pounds of processed marijuana during the execution of the search warrants. • Some marijuana dispensaries force customers to sign forms designating the business as their primary caregiver, in an attempt to circumvent the law. 2. EXPERIENCES WITH MARIJUANA DISPENSARIES IN RIVERSIDE COUNTY There were some marijuana dispensaries operating in the County of Riverside until the District Attorney's Office took a very aggressive stance in closing them. In Riverside, anyone that is not a "qualified patient" or "primary caregiver" under the Medical Marijuana Program Act who possesses, sells, or transports marijuana is being prosecuted. Several dispensary closures illustrate the impact this position has had on marijuana dispensaries. For instance, the Palm Springs Caregivers dispensary (also known as Palm Springs Safe Access Collective) was searched after a warrant was issued. All materials inside were seized, and it was closed down and remains closed. The California Caregivers Association was located in downtown Riverside. Very shortly after it opened, it was also searched pursuant to a warrant and shut down. The CannaHelp dispensary was located in Palm Desert. It was searched and closed down early in 2007. The owner and two managers were then prosecuted for marijuana sales and possession of marijuana for the purpose of sale. However, a judge granted their motion to quash the search warrant and dismissed the charges. The District Attorney's Office then appealed to the Fourth District Court of Appeal. Presently, the Office is waiting for oral arguments to be scheduled. Dispensaries in the county have also been closed by court order. The Healing Nations Collective was located in Corona. The owner lied about the nature of the business in his application for a license. The city pursued and obtained an injunction that required the business to close. The owner appealed to the Fourth District Court of Appeal, which ruled against him. (City of Corona v. Ronald Naulls et al., Case No. E042772.) 3. MEDICAL MARIJUANA DISPENSARY ISSUES IN CONTRA COSTA COUNTY CITIES AND IN OTHER BAY AREA COUNTIES Several cities in Contra Costa County, California have addressed this issue by either banning dispensaries, enacting moratoria against them, regulating them, or taking a position that they are simply not a permitted land use because they violate federal law. Richmond, El Cerrito, San Pablo, Hercules, and Concord have adopted permanent ordinances banning the establishment of marijuana dispensaries. Antioch, Brentwood, Oakley, Pinole, and Pleasant Hill have imposed moratoria against dispensaries. Clayton, San Ramon, and Walnut Creek have not taken any formal 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 a nineteen -page regulatory scheme which allows the operation of three permitted dispensaries in unincorporated portions of the county. Dispensaries can only be located in commercial or industrial zones, or their equivalent, and may not be located within 1,000 feet of other dispensaries, schools, parks, playgrounds, drug recovery facilities, or recreation centers. Permit issuance is controlled by the Sheriff, who is required to work with the Community Development Agency and the Health Care Services agency to establish operating conditions for each applicant prior to final selection. Adverse decisions can be appealed to the Sheriff and are ruled upon by the same panel responsible for setting operating conditions. That panel's decision may be appealed to the Board of Supervisors, whose decision is final (subject to writ review in the Superior Court per CCP sec. 1094.5). Persons violating provisions of the ordinance are guilty of a misdemeanor. B. Santa Clara County In November of 1998, Santa Clara County passed an ordinance permitting dispensaries to exist in unincorporated portions of the county with permits first sought and obtained from the Department of Public Health. In spite of this regulation, neither the County Counsel nor the District Attorney's Drug Unit Supervisor believes that Santa Clara County has had anrn marijuana dispensaries in operation at least through 2006. The only permitted activities are the on-site cultivation of medical marijuana and the distribution of medical marijuana/medical marijuana food stuffs. No retail sales of any products are permitted at the dispensary. Smoking, ingestion or consumption is also prohibited on site. All doctor recommendations for medical marijuana must be verified by the County's Public Health Department. C. San Francisco County In December of 2001, the Board of Supervisors passed Resolution No. 012006, declaring San Francisco to be a "Sanctuary for Medical Cannabis." City voters passed Proposition S in 2002, directing the city to explore the possibility of establishing a medical marijuana cultivation and distribution program run by the city itself. San Francisco dispensaries must apply for and receive a permit from the Department of Public Health. They may only operate as a collective or cooperative, as defined by California Health and Safety Code section 11362.7 (see discussion in section 4, under "California Law" above), and may only sell or distribute marijuana to members. Cultivation, smoking, and making and selling food products may be allowed. Permit applications are referred to the Departments of Planning, Building Inspection, and Police. Criminal background checks are required but exemptions could still allow the operation of dispensaries by individuals with prior convictions for violent felonies or who have had prior permits suspended or revoked. Adverse decisions can be appealed to the Director of © 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 Sheriffs data have been compiled for "Calls for Service" within a half -mile radius of 127 Aspen Drive, Pacheco. However, in research conducted by the El Cerrito Police Department and relied upon by Riverside County in recently enacting its ban on dispensaries, it was recognized that not all crimes related to medical marijuana take place in or around a dispensary. Some take place at the homes of the owners, employees, or patrons. Therefore, these statistics cannot paint a complete picture of the impact a marijuana dispensary has had on crime rates. The statistics show that the overall number of calls decreased (3,746 in 2005 versus 3,260 in 2006). However, there have been increases in the numbers of crimes which appear to be related to a business which is an attraction to a criminal element. Reports of commercial burglaries increased (14 in 2005, 24 in 2006), as did reports of residential burglaries (13 in 2005, 16 in 2006) and miscellaneous burglaries (5 in 2005, 21 in 2006). Tender Holistic Care (THC marijuana dispensary formerly located on N. Buchanan Circle in Pacheco) was forcibly burglarized on June 11, 2006. $4,800 in cash was stolen, along with marijuana, hash, marijuana food products, marijuana pills, marijuana paraphernalia, and marijuana plants. The total loss was estimated to be $16,265. MariCare was also burglarized within two weeks of opening in Pacheco. On April 4, 2006, a window was smashed after 11:00 p.m. while an employee was inside the business, working late to get things organized. The female employee called "911" and locked herself in an office while the intruder ransacked the downstairs dispensary and stole more than $200 worth of marijuana. Demetrio Ramirez indicated that since they were just moving in, there wasn't much inventory. Reports of vehicle thefts increased (4 in 2005, 6 in 2006). Disturbance reports increased in nearly all categories (Fights: 5 in 2005, 7 in 2006; Harassment: 4 in 2005, 5 in 2006; Juveniles: 4 in 2005, 21 in 2006; Loitering: I 1 in 2005, 19 in 2006; Verbal: 7 in 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 statistics reflect the complaints and concerns raised by nearby residents. Residents have reported to the District Attorney's Office, as well as to Supervisor Piepho's office, that when calls are made to the Sheriffs Department, the offender has oftentimes left the area before law enforcement can arrive. This has led to less reporting, as it appears to local residents to be a futile act and residents have been advised that law enforcement is understaffed and cannot always timely respond to all calls for service. As a result, Pacheco developed a very active, visible Neighborhood Watch program. The program became much more active in 2006, according to Doug Stewart. Volunteers obtained radios and began frequently receiving calls directly from local businesses and residents who contacted them instead of law enforcement. It is therefore significant that there has still been an increase in many types of calls for law enforcement service, although the overall number of calls has decreased. Other complaints from residents included noise, odors, smoking/consuming marijuana in the area, littering and trash from the dispensary, loitering near a school bus stop and in the nearby church parking lot, observations that the primary patrons of MariCare appear to be individuals under age 25, © 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 6:00 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 time 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, El Sobrante It is the position of Contra Costa County District Attorney Robert J. Kochty that a proposed ordinance should terminate operation of the dispensary in EI Sobrante because the land use of that business would be inconsistent with both state and federal law. However, the Community Development Department apparently believes that MedDelivery can remain as a "legal, non- conforming use." F. Banning Versus Regulating Marijuana Dispensaries in Unincorporated Contra Costa County It is simply bad public policy to allow the proliferation of any type of business which is illegal and subject to being raided by federal and/or state authorities. In fact, eight locations associated with the New Remedies dispensary in San Francisco and Alameda Counties were raided in October of 2006, and eleven Southern California marijuana clinics were raided by federal agents on January 18, 2007. The Los Angeles head of the federal Drug Enforcement Administration told CBS News after the January raids that "Today's enforcement operations show that these establishments are nothing more than drug-trafficking organizations bringing criminal activities to our neighborhoods and drugs near our children and schools." A Lafayette, California resident who owned a business that produced marijuana -laced foods and drinks for marijuana clubs was sentenced in federal court to five years and 10 months behind bars as well as a $250,000 fine. Several of his employees were also convicted in that case. As discussed above, there is absolutely no exception to the federal prohibition against marijuana cultivation, possession, transportation, use, and distribution. Neither California's voters nor its Legislature authorized the existence or operation of marijuana dispensing businesses when given the opportunity to do so. These enterprises cannot fit themselves into the few, narrow exceptions that were created by the Compassionate Use Act and Medical Marijuana Program Act. Further, the presence of marijuana dispensing businesses contributes substantially to the existence of a secondary market for illegal, street -level distribution of marijuana. This fact was even recognized by the United States Supreme Court: "The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market. The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious." (Gonzales v. Raich, supra, 125 S.Ct. at p. 2214.) As outlined below, clear evidence has emerged of such a secondary market in Contra Costa County. In September of 2004, police responded to reports of two men pointing a gun at cars in the parking lot at Monte Vista High School during an evening football game/dance. Two 19 -year-old Danville residents were located in the parking lot (which was full of vehicles and pedestrians) and in possession of a silver Airsoft pellet pistol designed to replicate a © 2009 California Police Chiefs Assn. 27 All Rights Reserved real Walther semi-automatic handgun. Marijuana, hash, and hash oil with typical dispensary packaging and labeling were also located in the car, along with a gallon bottle of tequila (1/4 full), a bong with burned residue, and rolling papers. The young men admitted to having consumed an unknown amount of tequila at the park next to the school and that they both pointed the gun at passing cars "as a joke." They fired several BBs at a wooden 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. He 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 progress. They arrested a high school senior for two outstanding warrants as he came to buy marijuana from the cannabis club located on Contra Costa Boulevard. The young man explained that he had a cannabis club card that allowed him to purchase marijuana, and admitted that he planned to re -sell some of the marijuana to friends. He also admitted to possession of nearly 7 grams of cocaine which was recovered. A21 -year-old man was also arrested on an outstanding warrant. In his car was a marijuana grinder, a baggie of marijuana, rolling papers, cigars, and a "blunt" (hollowed out cigar filled with marijuana for smoking) with one end burned. The 21 -year-old admitted that he did not have a physician's recommendation for marijuana. • Also in February of 2006, a 17 -year-old Monte Vista High School senior was charged with felony furnishing of marijuana to a child, after giving a 4 -year-old boy a marijuana - laced cookie. The furnishing occurred on campus, during a child development class. • In March of 2006, police and fire responded to an explosion at a San Ramon townhouse and found three young men engaged in cultivating and manufacturing "honey oil" for local pot clubs. Marijuana was also being sold from the residence. Honey oil is a concentrated form of cannabis chemically extracted from ground up marijuana with extremely volatile butane and a special "honey oil" extractor tube. The butane extraction operation exploded with such force that it blew the garage door partially off its hinges. Sprinklers in the residence kept the fire from spreading to the other homes in the densely packed residential neighborhood. At least one of the men was employed by Ken Estes, owner of the Dragonfly Holistic Solutions pot clubs in Richmond, San Francisco, 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 down by federal agents. • Also in March of 2006, a 16 -year-old El Cerrito High School student was arrested after selling pot cookies to fellow students on campus, many of whom became ill. At least four required hospitalization. The investigation revealed that the cookies were made with a butter obtained outside a marijuana dispensary (a secondary sale). Between March of 2004 and May of 2006, the El Cerrito Police Department conducted seven investigations at the high school and junior high school, resulting in the arrest of eight juveniles for selling or possessing with intent to sell marijuana on or around the school campuses. • In June of 2006, Moraga police officers made a traffic stop for suspected driving under the influence of alcohol. The car was seen drifting over the double yellow line separating north and southbound traffic lanes and driving in the bike lane. The 20 -year-old driver denied having consumed any alcohol, as he was the "designated driver." When asked about his bloodshot, watery, and droopy eyes, the college junior explained that he had © 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 falsified California Driver's License, marijuana, hash, a marijuana pipe, a scale, and $12,288. The marijuana was in packaging from the Compassionate Collective of Alameda County, a Hayward dispensary. He explained that he buys the marijuana at "Pot Clubs," sells some, and keeps the rest. He only sells to close friends. About $3,000 to $4,000 of the cash was from playing high- stakes poker, but the rest was earned selling marijuana while a freshman at Arizona State University. The 18 -year-old passenger had half an ounce of marijuana in her purse and produced a doctor's recommendation to a marijuana club in Oakland, the authenticity of which could not be confirmed. Another significant concern is the proliferation of marijuana usage at community schools. In February of 2007, the Healthy Kids Survey for Alameda and Contra Costa Counties found that youthful substance abuse is more common in the East Bay's more affluent areas. These areas had higher rates of high school juniors who admitted having been high from drugs. The regional manager of the study found that the affluent areas had higher alcohol and marijuana use rates. USA Today recently reported that the percentage of 12`h Grade students who said they had used marijuana has increased since 2002 (from 33.6% to 36.2% in 2005), and that marijuana was the most -used illicit drug among that age group in 2006. KSDK News Channel 5 reported that high school students are finding easy access to medical marijuana cards and presenting them to school authorities as a legitimate excuse for getting high. School Resource Officers for Monte Vista and San Ramon Valley High Schools in Danville have reported finding marijuana in prescription bottles and other packaging from Alameda County dispensaries. Marijuana has also been linked to psychotic illnesses.101 A risk factor was found to be starting marijuana use in adolescence. For all of the above reasons, it is advocated by District Attorney Kochly 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 Santa Barbara County Deputy District Attorney Brian Cota, ten marijuana dispensaries are currently operating within Santa Barbara County. The mayor of the City of Santa Barbara, who is an outspoken medical marijuana supporter, has stated that the police must place marijuana behind every other police priority. This has made it difficult for the local District Attorney's Office. Not many marijuana cases come to it for filing. The District Attorney's Office would like more regulations placed on the dispensaries. However, the majority of Santa Barbara County political leaders and residents are very liberal and do not want anyone to be denied access to medical marijuana if they say they need it. Partly as a result, no dispensaries have been prosecuted to date. 5. SONOMA COUNTY Stephan R. Passalocqua, District Attorney for the County of Sonoma, has recently reported the following information related to distribution of medical marijuana in Sonoma County. In 1997, the Sonoma County Law Enforcement Chiefs Association enacted the following medical marijuana guidelines: a qualified patient is permitted to possess three pounds of marijuana and grow 99 plants in a 100 -square -foot canopy. A qualified caregiver could possess or grow the above-mentioned amounts for each qualified patient. These guidelines were enacted after Proposition 215 was overwhelmingly passed by the voters of California, and after two separate unsuccessful prosecutions in Sonoma County. Two Sonoma County juries returned "not guilty" verdicts for three defendants © 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 Sonoma County compared to other jurisdictions. On November 6, 2006, and authorized by Senate Bill 420, the Sonoma County Board of Supervisors specifically enacted regulations that allow a qualified person holding a valid identification card to possess up to three pounds of dried cannabis a year and cultivate 30 plants per qualified patient. No individual from any law enforcement agency in Sonoma County appeared at the hearing, nor did any representative publicly oppose this resolution. With respect to the People v. Saskon Jenkins case, the defendant provided verified medical recommendations for five qualified patients prior to trial. At the time of arrest, Jenkins said that he had a medical marijuana card and was a care provider for multiple people, but was unable to provide specific documentation. Mr. Jenkins had approximately 10 pounds of dried marijuana and was growing 14 plants, which number of plants is consistent with the 2006 Sonoma County Board of Supervisors' resolution. At a preliminary hearing held In January of 2007, the defense called five witnesses who were proffered as Jenkins' "patients" and who came to court with medical recommendations. Jenkins also testified that he was their caregiver. After the preliminary hearing, the assigned prosecutor conducted a thorough review of the facts and the law, and concluded that a Sonoma County jury would not return a "guilty" verdict in this case. Hence, no felony information was filed. With respect to the return of property issue, the prosecuting deputy district attorney never agreed to release the marijuana despite dismissing the case. Other trial dates are pending in cases where medical marijuana defenses are being alleged. District Attorney Passalacqua has noted that, given the overwhelming passage of proposition 215, coupled with at least one United States Supreme Court decision that has not struck it down to date, these factors present current challenges for law enforcement, but that he and other prosecutors will continue to vigorously prosecute drug dealers within the boundaries of the law. 6. ORANGE COUNTY There are 15 marijuana dispensaries in Orange County, and several delivery services. Many of the delivery services operate out of the City of Long Beach in Los Angeles County. Orange County served a search warrant on one dispensary, and closed it down. A decision is being made whether or not to file criminal charges in that case. It is possible that the United States Attorney will file on that dispensary since it is a branch of a dispensary that the federal authorities raided in San Diego County. The Orange County Board of Supervisors has ordered a study by the county's Health Care Department on how to comply with the Medical Marijuana Program Act. The District Attorney's Office's position is that any activity under the Medical Marijuana Program Act beyond the mere issuance of identification cards violates federal law. The District Attorney's Office has made it clear to County Counsel that if any medical marijuana provider 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. Health & Safety Code secs. 11362.5, et seq., with the federal Controlled Substances Act ("CSA"), 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 sec. 11362.5) and the Medical Marijuana Program Act (Health & Saf. Code secs. 11362.7- 11362.83? ANSWER 1. Storefront marijuana dispensaries may be legally operated under the CUA and the Medical Marijuana Program Act ("MMPA"), Cal. Health & Safety Code secs. 11362.7-11362.83, as long as they are "cooperatives" under the MMPA. ANALYSIS The question posed does not specify what services or products are available at a "storefront" marijuana dispensary. The question also does not specify the business structure of a "dispensary." A "dispensary" is often commonly used nowadays as a generic term for a facility that distributes medical marijuana. The term "dispensary" is also used specifically to refer to marijuana facilities that are operated more like a retail establishment, that are open to the public and often "sell" medical marijuana to qualified patients or caregivers. By use of the term "store front dispensary," the question may be presuming that this type of facility is being operated. For purposes of this analysis, we will assume that a "dispensary" is a generic term that does not contemplate any particular business structure.' Based on that assumption, a "dispensary" might provide "assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana 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 cultivate marijuana for personal medical purposes with the recommendation of a physician. (Cal. Health & Safety Code sec. 11362.5 (d).) Similarly, the MMPA provides that "patients" or designated "primary caregivers" who have voluntarily obtained a valid medical marijuana identification card shall not be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in specified quantities. (Cal. Health & Safety Code sec. 11362.71 (d) & (e).) A "storefront dispensary" would not fit within either of these categories. However, the MMPA also provides that "[q]ualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under section 11357 [possession], 11358 [planting, harvesting or processing], 11359 [possession for sale], 11360 [unlawful transportation, importation, sale or gift], 11366 [opening or maintaining place for trafficking in controlled substances], 11366.5 [providing place for manufacture or distribution of controlled substance; Fortifying building to suppress law enforcement entry], or 11570 [Buildings or places deemed nuisances subject to abatement]." (Cal. Health & Safety Code sec. 11362.775.) (Emphasis added).) Since medical marijuana cooperatives are permitted pursuant to the MMPA, a "storefront dispensary" that would qualify as a cooperative would be permissible under the MMPA. (Cal. Health & Safety Code sec. 11362.775. See also People v. Urziceattu (2005) 132 Cal. App. 4th 747 (finding criminal defendant was entitled to present defense relating to operation of medical marijuana cooperative).) In granting a re -trial, the appellate court in Urziceanu found that the defendant could present evidence which might entitle him to a defense under the MMPA as to the operation of a medical marijuana cooperative, including the fact that the "cooperative" verified physician recommendations and identities of individuals seeking medical marijuana and individuals obtaining medical marijuana paid membership fees, reimbursed defendant for his costs in cultivating the medical marijuana by way of donations, and volunteered at the "cooperative." (!d. at p. 785.) Whether or not "sales" are permitted under Urziceanu and the MMPA is unclear. The Urziceanu Court did note that the incorporation of section 11359, relating to marijuana "sales," in section 11362.775, allowing the operation of cooperatives, "contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana." Whether "reimbursement" may be in the form only of donations, as were the facts presented in Urziceanu, or whether "purchases" could be made for medical marijuana, it does seem clear that a medical marijuana "cooperative" may not make a "profit," but may be restricted to being reimbursed for actual costs in providing the marijuana to its members and, if there are any "profits," these may have to be reinvested in the "cooperative" or shared by its members in order for a dispensary to © 2009 California Police Chiefs Assn. 32 All Rights Reserved be truly considered to be operating as a "cooperative."'` 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 a city, county, or city and county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, can an individual board or council member be found to be acting illegally and be subject to federal criminal charges, including aiding and abetting, or state criminal charges? ANSWER 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 immune from liability for legislative acts. (U.S. Const., art. I, sec. 6 (Speech and Debate Clause, applicable to members of Congress); Fed. Rules Evid., Rule 501 (evidentiary privilege against admission of legislative acts); Tennev v. Brandhove (1951) 341 U.S. 367 (legislative immunity applicable to state legislators); Bogan v. Scott -Harris (1998) 523 U.S. 44 (legislative immunity applicable to local legislators).) However, while federal legislators are absolutely immune from both criminal and civil liability for purely legislative acts, local legislators are only immune from civil liability under federal law. (United States v. Gillock (1980) 445 U.S. 360.) Where the United States Supreme Court has held that federal regulation of marijuana by way of the CSA, including any "medical" use of marijuana, is within Congress' Commerce Clause power, federal law stands as a bar to local action in direct violation of the CSA. (Gonzales v. Raich (2005) 545 U.S. l.) In fact, the CSA itself provides that federal regulations do not A "cooperative" is defined as follows: An enterprise or organization that is owned or managed jointly by those who use its facilities or services. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, by Houghton Mifflin Company (4th Ed. 2000). ' Indeed, the same conclusion would seem to result from the adoption by state legislators of the MMPA itself, in authorizing the issuance of medical marijuana identification cards. (Cal. Health & Safety Code secs. 11362.71, et seq.) © 2009 California Police Chiefs Assn. 33 All Rights Reserved exclusively occupy the field of drug regulation "unless there is a positive conflict between that provision of this title [the CSA] and that state law so that the two cannot consistently stand together." (21 U.S.C. sec. 903.) Based on the above provisions, then, legislative action by local legislators could subject the individual legislators to federal criminal liability. Most likely, the only violation of the CSA that could occur as a result of an ordinance approved by local legislators authorizing and regulating medical marijuana would be aiding and abetting a violation of the CSA. The elements of the offense of aiding and abetting a criminal offense are: (1) specific intent to facilitate commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of an offense. (United States v. Raper (1982) 676 F.2d 841; United States v. Staten (1978) 581 F.2d 878.) Criminal aiding and abetting liability, under 18 U.S.C. section 2, requires proof that the defendants in some way associated themselves with the illegal venture; that they participated in the venture as something that they wished to bring about; and that they sought by their actions to make the venture succeed. (Central Bank, N.A. v. First Interstate Bank, N.A. (1994) 511 U.S. 164.) Mere furnishing of company to a person engaged in a crime does not render a companion an aider or abettor. (United States v. Garguilo (2d Cir. 1962) 310 F.2d 249.) In order for a defendant to be an aider and abettor he must know that the activity condemned by law is actually occurring and must intend to help the perpetrator. (United States v. McDaniel (9th Cir. 1976) 545 F.2d 642.) To be guilty of aiding and abetting, the defendant must willfully seek, by some action of his own, to make a criminal venture succeed. (United States v. Ehrenberg (E.D. Pa. 1973) 354 F. Supp. 460 cert. denied (1974) 94 S. Ct. 1612.) The question, as posed, may presume that the local legislative body has acted in a manner that affirmatively supports marijuana dispensaries. As phrased by Senator Kuehl, the question to be answered by the Attorney General's Office assumes that a local legislative body has adopted an ordinance that "authorizes" medical marijuana facilities. What if a local public entity adopts an ordinance that explicitly indicates that it does not authorize, legalize, or permit any dispensary that is in violation of federal lav regarding controlled substances? If the local public entity grants a permit, regulates, or imposes locational requirements on marijuana dispensaries with the announced understanding that it does not thereby allow any illegal activity and that dispensaries are required to comply with all applicable laws, including federal laws, then the public entity should be entitled to expect that all laws will be obeyed. It would seem that a public entity is not intentionally acting to encourage or aid acts in violation of the CSA merely because it has adopted an ordinance which regulates dispensaries; even the issuance of a "permit," if it is expressly not allowing violations of federal law, cannot necessarily support a charge or conviction of aiding and abetting violation of the CSA. A public entity should be entitled to presume that dispensaries will obey all applicable laws and that lawful business will be conducted at dispensaries. For instance, dispensaries could very well not engage in actual medical marijuana distribution, but instead engage in education and awareness activities as to the medical effects of marijuana; the sale of other, legal products that aid in the suffering of © 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 business activities, and First Amendment protected activities at that, in which dispensaries could engage relating to medical marijuana, but not apparently in violation of the CSA. Public entities should be entitled to presume that legitimate activities can and will be engaged in by dispensaries that are permitted and/or regulated by local regulations. In fact, it seems counterintuitive that local public entities within the state should be expected to be the watchdogs of federal law; in the area of controlled substances, at least, local public entities do not have an affirmative obligation to discern whether businesses are violating federal law. The California Attorney General's Office will note that the State Board of Equalization ("BOE") has already done precisely what has been suggested in the preceding paragraph. In a special notice issued by the BOE this year, it has indicated that sellers of medical marijuana must obtain a seller's permit. (See http://wNvw.boe.ca.gov/news/pdf/medseller2007.pdf (Special Notice: Important Information for Sellers of Medical Marijuana).) As the Special Notice explicitly indicates to medical marijuana facilities, "[h]aving a seller's permit does not mean you have authority to make unlawful sales. The permit only provides a way to remit any sales and use taxes due. The permit states, 'NOTICE TO PERMITTEE: You are required to obey all federal and state laws that regulate or control your business. This permit does not allow you to do otherwise."' The above being said, however, there is no guarantee that criminal charges would not actually be brought by the federal government or that persons so charged could not be successfully prosecuted. It does seem that arguments contrary to the above conclusions could be persuasive in convicting local legislators. By permitting and/or regulating marijuana dispensaries by local ordinance, some legitimacy and credibility may be granted by governmental issuance of permits or authorizing and allowing dispensaries to exist or locate within a jurisdiction .4 All of this discussion, then, simply demonstrates that individual board or council members can, indeed, be found criminally liable under federal law for the adoption of an ordinance authorizing and regulating marijuana dispensaries that promote the use of marijuana as medicine. The actual likelihood of prosecution, and its potential success, may depend on the particular facts of the regulation that is adopted. 4 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 with respect to marijuana dispensaries and other permits or approvals routinely, and often ministerially, granted by local public entities, such as building permits or business licenses, which are discussed infra? If local public entities are held responsible for adopting an ordinance authorizing and/or regulating marijuana dispensaries, cannot local public entities also be subject to liability for providing general public services for the illegal distribution of "medical" marijuana? Could a local public entity that knew a dispensary was distributing "medical" marijuana in compliance with state law be criminally liable if it provided electricity, water, and trash services to that dispensary? How can such actions really be distinguished from the adoption of an ordinance that authorizes and/or regulates marijuana dispensaries? © 2009 California Police Chiefs Assn. 35 All Rights Reserved B. State Law Similarly, under California law, aside from the person who directly commits a criminal offense, no other person is guilty as a principal unless he aids and abets. (People v. Dole (1898) 122 Cal. 486; People v. Stein (1942) 55 Cal. App. 2d 417.) A person who innocently aids in the commission of the crime cannot be found guilty. (People v. Fredoni (1910) 12 Cal. App. 685.) To authorize a conviction as an aider and abettor of crime, it must be shown not only that the person so charged aided and assisted in the commission of the offense, but also that he abetted the act— that is, that he criminally or with guilty knowledge and intent aided the actual perpetrator in the commission of the act. (People v. Terman (1935) 4 Cal. App. 2d 345.) To "abet" another in commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding the commission of the offense. (People v. Best (1941) 43 Cal. App. 2d 100.) "Abet' implies knowledge of the wrongful purpose of the perpetrator of the crime. (People v. Stein, supra.) To be guilty of an offense committed by another person, the accused must not only aid such perpetrator by assisting or supplementing his efforts, but must, with knowledge of the wrongful purpose of the perpetrator, abet by inciting or encouraging him. (People v. Le Grant (1946) 76 Cal. App. 2d 148, 172; People v. Carlson (1960) 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 federal law immunities available to local legislators, discussed above, state law immunities provide some protection for local legislators. Local legislators are certainly immune from civil liability relating to legislative acts; it is unclear, however, whether they would also be immune from criminal liability. (Steiner v. Superior Court, 50 Cal.AppAth 1771 (assuming, but finding no California authority relating to a "criminal" exception to absolute immunity for legislators under state law).)5 Given the apparent state of the law, local legislators could only be certain that they would be immune from civil liability and could not be certain that 5 Although the Steiner Court notes that "well-established federal law supports the exception," when federal case authority is applied in a state law context, there may be a different outcome. Federal authorities note that one purpose supporting criminal immunity as to federal legislators from federal prosecution is the separation of powers doctrine, which does not apply in the context of federal criminal prosecution of local legislators. However, if a state or county prosecutor brought criminal charges against a local legislator, the separation of powers doctrine may bar such prosecution. (Cal. Const., art. III, sec. 3.) As federal authorities note, bribery, or other criminal charges that do not depend upon evidence of, and cannot be said to further, any legislative acts, can still be prosecuted against legislators. (See Bruce v. Riddle (4th Cir. 1980) 631 F.2d 272, 279 ["Illegal acts such as bribery are obviously not in aid of legislative activity and legislators can claim no immunity for illegal acts."]; United States v. Brewster, 408 U.S. 501 [indictment for bribery not dependent upon how legislator debated, voted, or did anything in chamber or committee; prosecution need only show acceptance of money for promise to vote, not carrying through of vote by legislator]; United States v. Swindall (11th Cir. 1992) 971 F.2d © 2009 California Police Chiefs Assn. 36 All Rights Reserved they would be at all immune from criminal liability under state law. However, there would not be any criminal violation if an ordinance adopted by a local public entity were in compliance with the CUA and the MMPA. An ordinance authorizing and regulating medical marijuana would not, by virtue solely of its subject matter, be a violation of state law; only if the ordinance itself permitted some activity inconsistent with state law relating to medical marijuana would there be a violation of state law that could subject local legislators to criminal liability under state law. QUESTION 3. If the governing body of a city, city and county, or county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, and subsequently a particular dispensary is found to be violating state law regarding sales and trafficking of marijuana, could an elected official on the governing body be guilty of state criminal charges? ANSWER 3. After adoption of an ordinance authorizing or regulating marijuana dispensaries, elected officials could not be found criminally liable under state law for the subsequent violation of state law by a particular dispensary. ANALYSIS Based on the state law provisions referenced above relating to aiding and abetting, it does not seem that a local public entity would be liable for any actions of a marijuana dispensary in violation of state law. Since an ordinance authorizing and/or regulating marijuana dispensaries would necessarily only be authorizing and/or regulating to the extent already permitted by state law, local elected officials could not be found to be aiding and abetting a violation of state law. In fact, the MMPA clearly contemplates local regulation of dispensaries. (Cal. Health & Safety Code sec. 11362.83 ("Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.").) Moreover, as discussed above, there may be legislative immunity applicable to the legislative acts of individual elected officials in adopting an ordinance, especially where it is consistent with state law regarding marijuana dispensaries that dispense crude marijuana as medicine. 1531, 1549 [evidence of legislative acts was essential element of proof and thus immunity applies].) Therefore, a criminal prosecution that relates solely to legislative acts cannot be maintained under the separation of powers rationale for legislative immunity. © 2009 California Police Chiefs Assn. 37 All Rights Reserved QUESTION 4. Does approval of such an ordinance open the jurisdictions themselves to civil or criminal liability? ANSWER 4. Approving an ordinance authorizing or regulating marijuana dispensaries may subject the jurisdictions to civil or criminal liability. ANALYSIS Under federal law, criminal liability is created solely by statute. (Dowling v. United States (1985) 473 U.S. 207, 213.) Although becoming more rare, municipalities have been, and still may be, criminally prosecuted for violations of federal law, where the federal law provides not just a penalty for imprisonment, but a penalty for monetary sanctions. (See Green, Stuart P., The Criminal Prosecution of Local Governments, 72 N.C. L. Rev. 1197 (1994) (discussion of history of municipal criminal prosecution).) The CSA prohibits persons from engaging in certain acts, including the distribution and possession of Schedule I substances, of which marijuana is one. (21 U.S.C. sec. 841.) A person, for purposes of the CSA, includes "any individual, corporation, government or governmental subdivision or agency, business trust, partnership, association, or other legal entity." (21 C.F.R. sec. 1300.01 (34). See also 21 C.F.R. sec. 1301.02 ("Any term used in this part shall have the definition set forth in section 102 of the Act (21 U.S.C. 802) or part 1300 of this chapter.").) By its very terms, then, the CSA may be violated by a local public entity. If the actions of a local public entity otherwise satisfy the requirements of aiding and abetting a violation of the CSA, as discussed above, then local public entities may, indeed, be subject to criminal prosecution for a violation of federal law. Under either federal or state law, local public entities would not be subject to civil liability for the mere adoption of an ordinance, a legislative act. As discussed above, local legislators are absolutely immune from civil liability for legislative acts under both federal and state law. In addition, there is specific immunity under state law relating to any issuance or denial of permits. QUESTION 5. Does the issuance of a business license to a marijuana dispensary involve any additional civil or criminal liability for a city or county and its elected governing body? ANSWER 5. 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. © 2009 California Police Chiefs Assn. 38 All Rights Reserved ANALYSIS Business licenses are imposed by cities within the State of California oftentimes solely for revenue purposes, but are permitted by state law to be imposed for revenue, regulatory, or for both revenue and regulatory purposes. (Cal. Gov. Code sec. 37101.) Assuming a business license ordinance is for revenue purposes only, it seems that a local public entity would not have any liability for the mere collection of a tax, whether on legal or illegal activities. However, any liability that would attach would be analyzed the same as discussed above. In the end, a local public entity could hardly be said to have aided and abetted the distribution or possession of marijuana in violation of the CSA by its mere collection of a generally applicable tax on all business conducted within the entity's jurisdiction. OVERALL FINDINGS All of the above further exemplifies the catch-22 in which local public entities are caught, in trying to reconcile the CUA and MMPA, on the one hand, and the CSA on the other. In light of the existence of the CUA and the MMPA, and the resulting fact that medical marijuana is being used by individuals in California, local public entities have a need and desire to re ulate the location and operation of medical marijuana facilities within their jurisdiction.6 io However, because of the divergent views of the CSA and California law regarding whether there is any accepted "medical" use of marijuana, state and local legislators, as well as local public entities themselves, could be subject to criminal liability for the adoption of statutes or ordinances furthering the possession, cultivation, distribution, transportation (and other act prohibited under the CSA) as to marijuana. Whether federal prosecutors would pursue federal criminal charges against state and/or local legislators or local public entities remains to be seen. But, based on past practices of locally based U.S. Attorneys who have required seizures of large amounts of marijuana before federal filings have been initiated, this can probably be considered unlikely. ° Several compilations of research regarding the impacts of marijuana dispensaries have been prepared by the California Police Chiefs Association and highlight some of the practical issues facing local public entities in regulating these facilities. Links provided are as follows: "Riverside County Office of the District Attorney," [White Paper, Medical Marijuana: History and Current Complications, September 2006];"Recent Information Regarding Marijuana and Dispensaries [El Cerrito Police Department Memorandum, dated January 12, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Marijuana Memorandum" [El Cerrito Police Department Memorandum, dated April 18, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Law Enforcement Concerns to Medical Marijuana Dispensaries" [Impacts of Medical Marijuana Dispensaries on communities between 75,000 and 100,000 population: Survey and council agenda report, City of Livermore]. © 2009 California Police Chiefs Assn. 39 All Rights Reserved CONCLUSIONS In light of the United States Supreme Court's decision and reasoning in Gonzales v. Raich, the United States Supremacy Clause renders California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 suspect. No state has the power to grant its citizens the right to violate federal law. People have been, and continue to be, federally prosecuted for marijuana crimes. The authors of this White Paper conclude that medical marijuana is not legal under federal law, despite the current California scheme, and wait for the United States Supreme Court to ultimately rule on this issue. Furthermore, storefront marijuana businesses are prey for criminals and create easily identifiable victims. The people growing marijuana are employing illegal means to protect their valuable cash crops. Many distributing marijuana are hardened criminals. 103 Several are members of stepped criminal street gangs and recognized organized crime syndicates, while others distributing marijuana to the businesses are perfect targets for thieves and robbers. They are being assaulted, robbed, and murdered. Those buying and using medical marijuana are also being victimized. Additionally, illegal so-called "medical marijuana dispensaries" have the potential for creating liability issues for counties and cities. All marijuana dispensaries should generally be considered illegal and should not be permitted to exist and engage in business within a county's or city's borders. Their presence poses a clear violation of federal and state law; they invite more crime; and they compromise the health and welfare of law-abiding citizens. © 2009 California Police Chiefs Assn. 40 All Rights Reserved ENDNOTES 'U.S. Const.. art. VI, cl. 2. 2 U.S. Const., art. I, sec. 8, cl. 3. 3 Gonzales v. Raich (2005) 125 S.Ct. 2195 at p. 2204. a Gonzales v Raich. See also United States v. Oakland Cannabis Buyers' Cooperative (2001) 121 S.Ct. 1711, 1718. s Gonzales v. Raich (2005) 125 S.Ct. 2195; see also United States v. Oakland Cannabis Bttyers' Cooperative 121 S.Ct. 1711. 6 Josh Meyer & Scott Glover, "U.S. won't prosecute medical pot sales," Los Angeles Times, 19 March 2009, available at http://Nvww.latinics.com/news/local/la-me-medpoti9-2009mar19.0,4987571.story 7See People v. Mower (2002) 28 CalAth 457, 463. a Health and Safety Code section 11362.5(b) (1) (A). All references hereafter to the Health and Safety Code are by section number only. H&S Code sec. I I362.5(a). 10 H&S Code sec. 11362.7 et. seq. " H&S Code sec. 11362.7. 12 H&S Code sees. 11362.71-11362.76. 13 H&S Code sec. 11362.77. 14 H&S Code secs. 11362.765 and 11362.775; People v. Urzicemnr (2005) 132 Cal.App.4`h 747 at p. 786. " H&S Code sec. 11362.77; whether or not this section violates the California Constitution is currently under review by the California Supreme Court, See People v. Kelly (2008) 82 Cal.Rptr.3d 167 and People v. Phomphakdy (2008) 85 Cal.Rptr. 3d 693. 16 H&S Code secs. 11357, 11358, 11359, 11360, 11366, 11366.5, and 11570. 17 H&S Code sec. I I362.7(h) gives a more comprehensive list - AIDS, anorexia, arthritis, cachexia, cancer, chronic pain, glaucoma, migraine, persistent muscle spasms, seizures, severe nausea, and any other chronic or persistent medical symptom that either substantially limits the ability of a person to conduct one or more life activities (as defined in the ADA) or may cause serious harm to the patient's safety or physical or mental health if not alleviated. 18 People v. Mower (2002) 28 CalAth 457 at p. 476. is Id. Emphasis added. 20 Packel, Organization and Operation of Cooperatives, 5th ed. (Philadelphia: American Law Institute, 1970),4-5. 2 1 Sam Stanton, "Pot Clubs, Seized Plants, New President—Marijuana's Future Is Hazy," Sacramento Bee, 7 December 2008, I9A. 2222 For a statewide list, see http://canorml.org/prop/cbclist.html. 23 Laura McClure, "Fuming Over the Pot Clubs," California Laxyver Magazine, June 2006. 24 H&S Code see. 11362.765(c); see, e.g.. People v. Urziceanu, 132 Cal.AppAth 747 at p. 764. 2' Gonzales v. Raich, supra. 125 S.Ct. at page 2195. 16 People v. Urziceanu (2005) 132 Cal.AppAth 747; see also H&S Code sec. 11362.765. 27 Israel Packel, 4-5. Italics added. " H&S Code sec. 11362.7(d)(1). 29 See, e.g., McClure, "Fuming Over Pot Clubs," California Laivver Magazine, June 2006. 30 H&S Code secs. 11362.5(e) and 11362.7(d)(1), (2),(3), and (e); see also People ex rel. Lungren v. Peron (1997) 59 Cal.AppAth 1383, 1395. 31 People v. Mower, 28 Cal.4th at 476. Emphasis added. 32 Glenda Anderson, "Laytonvdle Marijuana Guru Shot to Death: 2 Others Beaten in Home; No Suspects but Officials Believe Killing Related to Pot Growing," Santa Rosa Press Democrat, 19 November 2005, available at litto://wwwl.pressdemocrit.com/apps/pbcs.dll/article?AID-/20051119[NEWS/511190303/1033/ 33 "Medical Marijuana Shop Robbed," Santa Barbara Independent, 10 August 2006, available at littp://independent.com/news/2006/au¢/ 10/mettical-mariivana-shop-robbed/ 34 Mark Scaramella, "No Good Deed Goes Unpunished," Anderson Valley Advertiser, 16 June 2004, available at littp://www.tlleava.cont/04/0616-cerelli html © 2009 California Police Chiefs Assn. 41 All Rights Reserved " Ricci Graham, "Police Arrest Suspect to Deadly San Leandro Pot Club Robbery," Oakland Tribune, 8 August 2006, available at http:/rfindarticles.conVp/articles/mi gn4176/is 20060808/at nl6659257 " Ricci Graham, "Man Faces Murder Charge in Pot Robbery," Oakland Tribune, 24 August 2005, available at http://www.higlibeam.com/doc/I P2-7021933.htnil 37 Ricci Graham, "Another Medical Marijuana Clinic Robbed," Oakland Tribune, 10 September 2005, available at http://findarticles.com/p/articies/mi gn4176/is 20050910/ai n15809189/print 38LauraClark, "Pot Dispensary Owner Slain at Home." Ukiah Dailv Journal, 19 November 2007, available at http'//www.mariivana.com/dme-war-headline-news/24910-ca-not-dispensary-owner-slain-home.html 3' Laura Clark, "Breaking News: Medical Marijuana Supplier Les Crane Killed," Ukiah DailvJournol, 19 November 2005; Laura Clark, "Les Crane Murder Investigation Continues," Ukiah Daily Journal, 27 November 2005; Glenda Anderson, "Laytonvtlle Marijuana Guru Shot to Death," Santa Rosa Press Democrat, 19 November 2005; Glenda Anderson, "Pot Activist Likely Knew Killers: Police Believe Gunmen Who Robbed Laytonville Man Familiar With Home," Santa Rosa Press Democrat, 20 November 2005, available at http://www.egualrieh(s4all us/content/view/192/50/ 40 Mark Scaramella, "The Mendo Pot Chronicles," Anderson Vallev Advertiser, 3 October 2007, available at littp://www.theava.cont!04/0616-ceielli.html 4j Kirk Johnson, "Killing Highlights Risk of Selling Marijuana, Even Legally," New York Times, 13 March 2007, available at http://www. nytimes.com/2007/03/02/us/02 cannabis.littiil'?ex=1 181880000&en=c609936094adda50&ei=5070 a2 Tami Abdollah & Richard Winton, "Pot Theft Claimed in Boy's Shooting Death," Lor Angeles Timer, 23 January 2007, available at http://www.califomiat)olicechiefs.org/nav tiles/marijuana files/bellflower shooting death.pddf - 4J Will Bigham, "Claremont Marijuana Dispensary Burglarized," bland Vallev Daily Bulletin, 27 January 2007; available at http://www.daitybtilletin.com/ei 5104514 44 Planning Commission Agenda, available at http://www.el-cerrito.ore; see also Alan Lopez, "El Cerrito Moves to Ban Dispensaries," Contra Costa Times, 24 June 2006, available at http./hvww.the-m inistrv. net/fonun/arch nve/el-cerrito-stoves-to-ban-cannabis-clubs-6974.11tnt " Fred Ortega, "City Bans Outlets for Medical Marijuana," San Gabriel Vallev Tribune, 17 August 2006, available at http://www.Ica-uk.ori,/Ica forum/viewtopic.php?f=6&t--24 36&start=0&sid— 15 b6da 115a0da43 facb 17644195 cbb J° Ortega. J7 Greg Beato, "Pot Clubs in Peril: Are San Francisco Zoning Boards a Bigger Threat to Medical Marijuana Than the DEA?" Reason Magazine, February 2007, available at littil.Hwww.reason.coin/news/show/I18314.Imnl; Craig T. Steckler, City of Fremont Police Department Memorandum re Medical Marijuana Dispensaries — Potential Secondary Impacts, 20 June 2006; Tim Miller, Citv of Anaheim Police Department: Special Operations Division Memorandum re Medical Marijuana Dispensary (MMD) Ban Ordinance, 13 June 2007. 48 Jeff McDonald, "15 Held in Raids on Pot Stores," San Diego Union-Tribune, 7 July 2006, available at http:/hvww.signonsandieeacom/tiniontrib/20060707/news 7m7pot.html "McDonald: Beato. 0 Cal. H&S Code sec. 11362.5. s� Ethan Stewart, "The Medical Marijuana Movement Grows in Santa Barbara: Emerald Dreams and Smoky Realities," Santa Barbara Independent, 3 May 2007, available at http://independent.com/news/2007/may/03/inedicztl-marijuana-movement-„,rows-Santa-barbas/; see also Adam Ashton, "DEA Busts Pot Store Day After Council Talk,” Modesto Bee, 28 September 2006. s2 McDonald. Stewart. Stewart. Stewart. 56 National Drug Intelligence Center, Domestic Cannabis Cultivation Assessment 2007, February 2007; available at http://vww.usdoj.eovhtdic/nubs2l/22486/; Jaxon Van Derbeken, Charlie Goodyear, & Rachel Gordon, "3 S.F. Pot Clubs Raided in Probe of Organized Crime," San Francisco Chronicle, 23 June 2005, available at http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/06/23/MNGRODDG321.DTL; LAPD report information, 2007. © 2009 California Police Chiefs Assn. 42 All Rights Reserved s7 Van Derbeken, et al. ss Kate Heneroty, "Medical marijuana indictment unsealed," Jurist, 24 June 2005, available at htt»://iuiist.law pitt.edu/paperchase/2005/06/medical-mariivana-indictment-unsealed.phn; Stacy Finz, "19 Named in Medicinal Pot Indictment: More Than 9,300 Marijuana Plants Were Seized in Raids," San Francisco Chronicle, 24 June 2005, available at http://sfgate.com/cgi-bin/article.c«i?file=/c/a/ 2005/06/24/13AGV9DEC4C I .DTL s1 Organized Crime Behind `Medical'Marijuana Dispensary in California," Pushingback. 29 September 2006, available at http://pushingback.com/blogs/pushing_back/archive/2006/09/29/791.aspx; "Ashton. 60 City of San Diego, Crime Statistics, 2007, available at http://www.sandiego.gov 61 National Drug Intelligence Center, Marijuana, January 2001, available at http://Www.usdol.gov 6z George Anastasia, "Viet Gangs on the Rise Again—The Emerging American Underworld—Gangs' Plant -filled Houses a Growing Part of Drug Trade," Chronicle of Boredom, 18 April 2007. 63 Will Bigham, "Houses Linked to Asian Gangs," Inland Yallev Daily Bulletin, 23 September 2007, available at httti://www.clailybLilletin.com/newsci 6980682 64 Bigham, 23 September 2007. 6s Feds Came and Went—Now What? Humboldt County News, 30 June 2008, available at http://news.humcounty.com/arcliives/2008./6 66 LAPD Report Number DR#060625000, 16 August 2006. 67 LAPD Report Number DR#060625001, 16 August 2006. 6' Tim Miller, City of Anaheim Police Department: Special Operations Division Memorandum re Marijuana Dispensary (MMD) Ban Ordinance, 25 October 2006; Johnson; Craig T. Steckler, City of Fremont Police Department; Memorandum re Medical Marijuana Dispensaries — Potential Secondary Impacts, 20 June 2006. 61 Stewart. 70 Johnson. 7i Ashton. 72 "What has the U.S. DEA said about medical marijuana? "Medical Marijuana ProCon.org, 2005; "What has federal law enforcement said about medical marijuana?" Medical Marijuana ProCon.org., 2009, available at http:Hmedicalmariiuina.procon.ora/viewanswers asp?questionlD=000630 73 Jim Avila, "Marijuana McMansions: Cops Say Organized Crime Is Sending Families Into the Suburbs to Grow Marijuana," ABC News, 14 June 2007, available at http://abcnews.go.com/print?id=3242760 74 Avila; Anastasia; "DEA Raids Miami Grow House," CBSS.com, 30 April 2008, available at http://cbs5 coni/national/dea.raid.miami.2.712958.html 7s Anastasia. 76 Bigham, 23 September 2007; Ethan Baron, "Angel Linked to Grow -op;' The Province (CNBC). 22 May 2005, available at http:/hvww.nial)iiic.ore/newstcl/v05/n823/a02.htmi "Bigham, 23 September 2007. " Bigham, 23 September 2007. 79 Heather Allen, "Marijuana Grow Houses Flourish as Southwest Florida Market Drops," HeraldTribune.com, 24 July 2007, available at littp://w,�vw'.lieraldtribune.coni/article/20070724fNEWS/707240498 '('Eric Bailey and Tim Rerterman, "Where Mary Jane is the girl next door," Los Angeles Tunes, 31 May 2008, available at http://artictes.latiiiies.com/2008/iiiay/31/local/me-pot31 " Eureka House Fire the Result of You -know -what," Humboldt Countv News, 7 September 2008, available at http://news.hunicounty.coni/; written remarks of Arcata Police Chief Randy Mendosa, 1 March 2009. s' Jesse McKinley, "Marijuana Hotbed Retreats on Medicinal Use," New York Times, 9 June 2009, available at http://www.nytimes.com/2008/06/09/us/pot.html?_r-1&em&ex-1213329 B3 Deputies: Fire Damages Holiday Marijuana Grow Home, tampabay.com, 15 February 2008, available at http://blo sc tampabay.coimbreakiiigtiews/2008/02/hotiday-fire-ma.html s4 Don Ruane, "Grow Houses Can Impact Utility Bills, Public Safety," News-press.com, 12 April 2008, available at httn:.'Iwww. news-nt ess. com/arms; r)bcs.dll,lartic le?AID=i 20080412/N E W S0103/804120394 ""DEA Raids Miami Grow House." " Sandy Loney, "Arrests Take Toll on Local Gang," The Sacramento Bee, 14 August 2008, available at http://www.sacbee.coin, clkgrove/v-print/story 11523 1 tlhtml 17 Avila. © 2009 California Police Chiefs Assn. 43 All Rights Reserved 88 Scott Glover, "Morro Bay Pot Dispensary Owner Found Guilty of Federal Charges," Los Angeles Times, 6 August 2008, available at httn://articles.latimes.com/2008/aug/06/local/me-12ot6 89 Bailey and Reiterman. " Janis Ramsay, "Special Report: Grow -op House Can Still Be Dream Home: Realtor Says," The Barrie Advance, 25 August 2008, available at httn: /www.mapinc.org/drugne%as/v08,/n818/a06.htnil 9' Avila. 9z Bailey and Reiterman. 93 Steve Davis, "Grow Security," Cannabis Culture Magazine, 6 August 2004, available at littp://www.cannabisculture.comi/artictes/3441.huml 94 Bailey and Reiterman. 9' See People v. 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"Marijuana McMansions: Cops Say Organized Crime Is Sending Families Into the Suburbs to Grow Marijuana." ABC News, 14 June 2007. Retrieved January 8, 2009, from http://abcnews.Lo.com/print?id=3242760 Bailey, Eric, and Tim Reiterman. "Where Mary Jane Is the Girl Next Door." Los Angeles Times, 31 May 2008. Retrieved January 8, 2009, from htti):Harticles.latimes.com/2008/may/3 I/local/me-pot31 Baron, Ethan. "Angel Linked to Grow -op." The Province (CNBC), 22 May 2005. Retrieved January 8, 2009, from http://www.mapinc.org/newstel/vO5/n823/aO2.html © 2009 California Police Chiefs Assn. 45 All Rights Reserved Beato, Greg. "Pot clubs in peril: Are San Francisco Zoning Boards a Bigger Threat to Medical Marijuana Than the DEA? Reason: Magazine, February 2007. Retrieved January 8, 2009, from http://www.reason.com/news/show/I 18314.html Bigham, Will. "Claremont Marijuana Dispensary Burglarized." Inland Valley Daily Bulletin, 27 January 2007. Retrieved January 9, 2009, from http://www.dailybulletin.com/ci 5104514 Bigham, Will. "Houses Linked to Asian Gangs." Inland Valley Daily Bulletin, 23 September 2007. Retrieved January 8, 2009, from http://www.dailybulletin.com/newsci 6980682 Brown, Edmund G., Jr. Guidelines for the Security and Non -Diversion of Marijuana Grown for Medical Use, August 2008. City of Pleasant Hill. Presentation to Its Planning Commission by Planning Staff, April 24, 2007. City of San Diego. Crime Statistics, 2007. Retrieved January 9, 2009, from http://w-vN,w.sandiego.gov Clark, Laura. "Breaking News: Medical Marijuana Supplier Les Crane Killed." Ukiah Daily Journal. 19 November 2005. Clark, Laura. "Les Crane Murder Investigation Continues." Ukiah Daily Journal. 27 November 2005. Clark, Laura. "Pot Dispensary Owner Slain at Home." Ukaih Daily Journal, 19 November 2005. Retrieved January 9, 2009, from http://www.mariiLiana.com/drttg-war-headline-news/2491 0-ca-pot-dispensary-owner-stain-home.htmI Davis, Steve. "Grow Security." Cannabis Culture Magazine, 6 August 2004. Retrieved January 8, 2009, from http:/hvww.cannabisculture.com//articles/3441.html "DEA Raids Miami Grow House." CBS News, 30 April 2008. Retrieved January 8, 2009, from http://cbs5.conVnational/dea.raid.miami.2.712958.html "Deputies: Fire Damages Holiday Marijuana Grow House." tampabay.com, 15 February 2008. Retrieved January 8, 2009, from http:!Iblogs. tainpabay.comibreaki n gnews/2008/02/hol iday-lire-ma. html "Does Marijuana Contribute to Psychotic Illnesses?" Current Psychiatry Online 6(2) (February 2007). "Eureka House Fire the Result of You -know -what." Humboldt Countv News, 7 September 2008. Retrieved January 8, 2009, from http://news.humcounty.com/ © 2009 California Police Chiefs Assn. 46 All Rights Reserved "Feds Came and Went — Now What?" Humboldt County News, 30 June 2008. Retrieved January 8, 2009, from http://news.humcounttY.com/archives/2008/6 Finz, Stacy. "19 Named in Medicinal Pot Indictment: More Than 9,300 Marijuana Plants Were Seized in Raids." San Francisco Chronicle, 24 June 2005. Retrieved January 8, 2009, from http://sfgate.coin/cgi-bin/article.egi?file=/c/a/2005/06/24/BAGV 9DEC4C 1.DTL Glover, Scott. "Morro Bay Pot Dispensary Owner Found Guilty of Federal Charges." Los Angeles Times, 6 August 2008. Retrieved January 8, 2009, from http://www.latimes.com/news/local/la-me-pot6 2008aug06,0,516054.stoi-y Graham, Ricci. "Man Faces Murder Charge in Pot Robbery." Oakland Tribune, 24 August 2005. Retrieved February 28, 2009 from http://www.highbeain.coin/doc/l P2-7021933.html Graham, Ricci. "Another Medical Marijuana Clinic Robbed." Oakland Tribune, 10 September 2005. Retrieved February 24, 2009, from littp:/Ifndarticles.com/p/articles/mi gn4176/is 20050910/ai n15809189/print Graham, Ricci. "Police Arrest Suspect in Deadly San Leandro Pot Club Robbery." Oakland Tribune, 8 August 2006. Retrieved February 24, 2009, from http://fnndarticles.com/l)/articles/mi gn4176/is 20060808/ai n16659257 Heneroty, Kate. "Medical Marijuana Indictment Unsealed." Jurist, 24 June 2005. Retrieved January 8, 2009, from http:/,/' urist.law.pitt.edu/paperchase/2005/06/medical-marijuana-indictment-unsealed.pIT Johnson, Kirk. "Killing Highlights Risk of Selling Marijuana, Even Legally." New York Times, 13 March 2007. Retrieved January 8, 2009, from http:/hvww.nytimes.com/2007/03/02/us/02cannabis.html?ex=1181880000&en=c609936094a dda50&ei=5070 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 Times, 6 January 2008. Retrieved January 8, 2009, from http://www.tlic-ministry. net/forum/archive/el-corrito-moves-to-ban-cannabis-clubs-6974.htm © 2009 California Police Chiefs Assn. 47 All Rights Reserved Loney, Sandy. "Arrests Take Toll on Local Gang." The Sacramento Bee, 14 August 2008. Rerieved January 8, 2009, from http://www.sacbee.com//elk rog ve/v-print/story/I152310.hnnl McClure, Laura. "Fuming Over the Pot Clubs." California Lawyer Magazine, June 2006. McCollum, Bill. "Landmark Bill Targeting Marijuana Grow Houses Becomes Law." Attorney General Bill McCollum News Release, 17 June 2008. Retrieved January 9, 2009, from http://myfloridal"al.coin/newsrel.nsf`newsreleases/AFAE7E2BCC 1688DI8525746B0070D23B McDonald, Jeff. "15 Held in Raids on Pot Stores," San Diego Union -Tribune, 7 July 2006. Retrieved February 24, 2009, from http://www.sip-nonsandiego.com/tiniontrib/20060707/news 7m7pot.html McKinley, Jesse. "Marijuana Hotbed Retreats on Medicinal Use." New York Times, 9 June 2008. Retrieved March 19, 2009, from http://www.n3gimes.coin/2008/06/09/us/09pot.html'? r-1&em=&ex=1213329 "Medical Marijuana Shop Robbed." Santa Barbara Independent, 10 August 2006. Retrieved January 9, 2009, from http://independent.com/news/2006/auk/ 10/medical-marijuana-shop-robbed/ Meyer, Josh, and Scott Glover. "U.S. Won't Prosecute Medical Pot Sales," 19 March 2009. Retrieved March 21, 2009, from http://www.latimes.com/news/local/la-me-medpot 19-2009mar l9,0,4987571.story Miller, Tim. City of Anaheim Police Department: Special Operations Division Memorandum re Medical Marijuana Dispensary (MMD) Ban Ordinance, 25 October 2006. National Drug Intelligence Center. Domestic cannabis cultivation assessment 1007, 26 February 2007. Retrieved January 9, 2009, from httl2://www.usdoi.RoN-/ndic/ptibs2l/22486/ Office Consolidation: By-law 361-2004 of the Corporation of the City of Brampton, 22 November 2004. "Organized Crime Behind `Medical' Marijuana Dispensary in California." Pushingback, 29 September 2006. Retrieved January 9, 2009, from http://pusliin,back.com/bloes/pushing back/archive/2006/09/29/791IM2p Ortega, Fred. "City Bans Outlets for Medical Marijuana," San Gabriel valley Tribune, 28 August 2006. Retrieved January 9, 2009, from http:/Avww.lca- uk.org/Icaforum/viewtopic,php'?f=6&t=2436&staart=0&sid=15b6da 115a0da43 facb44195cbb © 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 Berrie Advance, 25 August 2008. Retrieved January 9, 2009, from littp://www.illapiiic.org/drLiunews/vO8/n8 1 8/a06.html Ruane, Don. "Grow Houses Can Impact Utility Bills, Public Safety." News-press.com, 12 April 2008. Retrieved January 9, 2009, from http:/hv�N,�v.news-press.con1/apps/pbcs.dlI/article?A I D=/20090412/NEW 50103/804120394 Scaramella, Mark. "The Mendo Pot Chronicles." Anderson Vallev Advertiser, 3 October 2007. Retrieved January 9, 2009, from http://www.theava.com/07/1003-mendopot.html Scaramella, Mark. "No Good Deed Goes Unpunished." Anderson Vallev Advertiser, 16 June 2004. Retrieved January 9, 2009, from http://www.theava.com/04/0616-cerelli.htnil Stanton, Sam. "Pot Clubs, Seized Plants, New President—Marijuana's Future Is Hazy. Sacramento Bee, 7 December 2008, 19A. Steckler, Craig T. City of Fremont Police Department Memorandum re Medical Marijuana Dispensaries – Potential Secondaly Impacts, 20 June 2006. Stewart, Ethan. (2007, May 3). "The Medical Marijuana Movement Grows in Santa Barbara: Emerald Dreams and Smoky Realities." Santa Barbara Independent," 3 May 2007. Retrieved January 9, 2009, from http://independent.com/news/2007/may/03/medical-mari iLiana-movement-grows-santa-barbara/ Van Derbeken, Jaxon, Charlie Goodyear, and Rachel Gordon. "3 S.F. pot clubs raided in probe of organized crime." San Francisco Chronicle, 23 June 2005. Retrieved January 9, 2009, from http://wu,w.sf,-ate.com/cgi-bin/article.egi'?file=/c/a/2005/06/23/MNGRODDG32 LDTL "What has federal law enforcement said about medical marijuana?" Medical Marijuana ProCon.org, 2009. Retrieved February 24, 2009, from http://medicalmari j uana. proton. org/v i eNvanswers. asp?g uesti on I D=000630 "What has the U.S. DEA said about medical marijuana?" Medical Marijuana ProCon.org, 2005. © 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 MEDICAL MARIJUANA IN ORANGE COUNTY Orange. County Chiefs of Police and Sheriff's Association June 2, 2010 ATTACHMENT Page 84 Acknowledgements Orange County Chiefs of Police and Sheriff's Association working group on Medical Marijuana in Orange County, Alex Bastreri, Fullerton Police Department SandyBodnar, Fountain Valley Police Department CJ Bradley, Fullerton Police Department Ted Burnett, Orange County District Attorney's Office Ron Coopman, Westminster Police Department Robert Cortes, Fountain Valley Police Department Todd Elgin, Garden Grove Police Department Craig Friesen, Anaheim Police Department John GafThoy, Drug Enforcement Administration Les Gogerty, Costa Mesa Police Department FA Leiva, Garden Grove Police Department Martin Mayer, Jones and Mayer Law Firm Mike McCoy, Santa Ana Police Department Maty McElder y, Drug Enforcement Administration Carol Mona, Orange County District Attorney's Office JeffNoblo, Irvine Police Department Tim Olson, Seal Beach Police Department Scott Pagel, Drug Enforcement Administration Ross Peterson, Orange Police Department Adam Powell, Orange County Sheriffs Department Ben Stauffer, Garden Grove Police Department Tom Tarpley, Tustin Police Department Chuck Thomas, Huntington Beach Police Department Robert Thorsen, Orange Police Department Jim Tibbetts, Brea Police Department Wayne Winters, 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 significant crimes, (robberies, burglaries, assaults), occurring at or .in the immediate area of dispensaries. These busindsses have been known to associate with organized criminal gangs, receive their product (maronaaa) from large sophisticated grow operations and are receiving a significant financial profit. Orange County communities and citizens are asking law enforcement to addrtss these and other related Issues. As such, the OCCSA has implemented a working group to analyze the issue and give potential tools to remedy identified public safety concerns. The mission of the working group is to: Identify potential public safety issues of medical maryuana and possible solutions to those issues The primmy focus will be on the applicable criminal and civil laws dispensaries and delivery businesses. The purpose of the committee is not to consider the medicinal values of marquana. Medical Mariivana Laws To understand the public safety issues ofmcdical 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 the voters of California. The CUA decriminalized marijuana 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 caregiver is provided the same protections. The Act was codified in Health and Safety Code 11362.5, which specifically states, to "ensure that seriously ill Californians have the right to obtain and use marijuana 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," and to "ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subjectto criminal prosecution or sanction." Under federal law, marijuana is classified as a Schedule I drug, which means it has no recognized medical ase. In 2005, the United States Supreme Court ruled in Gonzales v, Aaich that the federal Controlled Substances Act is valid even as applied to the use of marijuana for personal medical use on the advice of a physician. While the ruling states marijuana remains illegal under federal law, the ruling has no direct impact on California law relating to medical marijuana. 1712003, In2003, the. California State Legislature passed Senate Bill 420, which became the Medical Marijuana Program (MMP) and took effect on January 1, 2004. The MMP further defined the definition of "patient" and "primary caregiver". It required the California Department. of Public Health to establish and manage a program for the voluntary registration of qualified medical marijuana patients and their primary caregivers through -a statewide identification card system. Medical marijuana identification cards are intended to help law enforcement officers identify and verify that cardholders are able to cultivate, possess, and transport medical marijuana without being subject to arrest. The California Department of Health Services (CDHS) manages the State's MMP. Each county is responsible for implementing their own Medical Marijuana Program. Orange County has named -their program the Medical Marijuana. Identification Card Program (MMIC). Orange County residents may access the MMIC through the Public Health Services —Heath Care Agency website, http://ochealthinfo cora/mmic. Each card has a unique identification number, which can be verified by law enforcement through a database (www.ealmmp.ca.novl. The MMP also established limits on the amount of marijuana and plants a single qualified person could possess (Health and Safety Code 11362.77). The MMP states qualified patients and primary caregivers may possess 8 oz. of dried marijuana, and may maintain no more than 6 mature or 12 immature plants per qualified patient. In addition, a doctor. may recommend additional amounts of marijuana to treat a specific patient's condition. Additionally, counties and cities could adopt Iocal regulations that allowed qualified persons to possess medical 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 11362.77 limitations are inapplicable. The prosecutor must prove that the amount possessed was not reasonably related to the defendant's current medical needs. And, because the CUA provides an affirmative defense,411c defendant bears the burden of providing evidence on that issue. However, the CUA does not provide a protection agafml arrest -- which was one of the stated purposes of the MMP. As such, to the extent that the MMP limits the quantity of marijuana (8 ounces, 6 mature plants or 12 immature plants) a person may have to prevent an arrest for possession or cultivation, those limits are viable. Accordingly; the limits 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 those MMP card holders who comply with the quantity limitations of Health and Safety code 11362.77 (See Section 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 "reasonableness" standard - and then up to the defendant to provide evidence supporting the difference. Page 87 As It relates to dispensary or storefront marijuana distribution, the MMP created a limited affnmative defense to criminal prosecution for qualifying individuals (patients and caregivers) that collectively gather to cultivata'medical marijuana and from criminal sanctions for conduct such as possession, possession for sale, transportation, sale, 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 member of a legally recognized "cooperative," 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 "designated primary caregiver" to cultivate and possess cannabis for the patients' medical use. As such, marijuana "dispensaries" started to take root in communities. Operators were designated as a "primary caregiver" by "patieaW' — 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 not authorize any individual or entity (pharmacy, cannabis buyers' clubs or dispensaries) to sell, or even give, cannabis to a patient or caregiver. In fact, the California Supreme Court ruled that a person whose "care giving" consists principally of supplying marijuana and instructing on its use, and who otherwise only sporadically takes some patients to medical appointments, cannot qualify as *a "primary caregiver" under the CUA. (People v. Mentch (2008)., Specifically, a "primary caregiver" mustprove that they: Consistently provide care giving, - Independent of any assistance in taking'mcdical marijuana, At or before the time helshe assumed responsibility for assisting with medical marijuana. - A primarycaregiver must be the principal, lead, or central person responsible for rendering assistance ht the provision of daily life necessities. The MMP also addressed "primary caregivers" and provided a specific definition. Under Health and Safety Cade 113623(d), "primary caregiver means the individual, designated by a qualified patient or by a person with an identification card, `wbo bas consistently assumed responsibility for the housing, health, or safety of that patient or person." Law enforcement agencies should also be aware of the court decision from City of Garden Grove v. Superior Court. The Court ruled a defendant has a due process right under the 141a Amendment to the return of property where the marijuana was found to be lawfully possessed with the meaning of the CUA and/or the MMP. Defendants 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 followed by the law enforcement agency. A number of Orange County law enforcement agencies have returned marijuana to defendants of various criminal marijuana cases. Collectives and Collaborative Since the Mantch decision, medical marijuana storefronts have essentially stopped the practice of. identifying themselves as "primary caregivers." flowever; the MMP recognizes that patients and caregivers may associate in order to collectively or cooperatively cultivate medical marijuana. 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 Qr cooperatively cultivate marljusda for medical purposes, shall not solely on the basis of that fad -be subject to state criminal sanctions" for the crimes of marijuana possession, possession for silo, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana. Typlcslly medical marijuana storefronts in Orange County -operate under the model or title of a "Collective" or "Cooperative." In August 2008, the California Attorney General's office issued "Guidelines for the Security and Non -diversion of Marijuana Grown for Medical Use." http:(/ag.ca.gov/cros attachments/press/pdfs/n160I medicalmarijuanaguidelines.ndf. The AG's Guidelines stated that a "cooperative" is a legal entity, As such, they must file articles of incorporation with the state and_conduct its business for the mutual benefit of its members. 'It must follow strict rules on organization, articles, elections, add distribution of earnings, and must report individual transactions from individual members 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, non-members. The guidelines also suggested practices for operating "collective growing operations" including: Non -Profit o Nothing allows collectives, cooperatives or individuals to profit from the sale or distribution of marijuana. Business Licenses, Sales Tax, and Seller's -Permits . o The State Board of Equalization determined medical marijuana transactions are subject to sales tax. Membership Application and Verification o Suggests a written application. o Verification of the individual's stains as a qualified patient or primary caregiver. o Have the individual agree not to distribute marijuana to non-members. o Have the individual agree not to use the marijuana for other than medical purposes. Page 89 o Maintain membership records on-site or reasonably available. o Track member's medical marijuana recommendation, o Enforce conditions ofinembership. - Permissible Reimbursements and Allocations: Marijuana grown at a collectivelcorporative for medical purposes may be: o Provided ftee to members. o Provided in exchange for services rendered. o Allocated bused on fees that are reasonably calculated to cover overhead costs end operating expenses. As noted above, nothing in the CUA or MMP expressly allows for the storefront sales of marijuana: In Orange County these storefronts have used the titles of "dispensaries", "collectives" , `.`cooperatives" and "alternative health caro" to name a few. Typically, these businesses distribute/sell marijuana outside of California law. As noted previously, California State law, specifically tire CUA under Health and Safety code 11362.5 and the MMP under Health and Safety Code sections 11362.7 through 11962.$3, provides an affirmative defense to charges of poss6sslon or cultivation of marijuana for individuals who'have, a physician's recommendation for the use of marijuana to treat specified illnesses, or their primary caregivers. However, this affirmative defense does not apply to any storefront operation in which there is the distribution or sale of marijuana, except in limited circumstances where persons with a valid physician's recommendation or their primary caregivers associate to collectively or cooperatively cultivate maryuana for medical 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), and selling marijuana without any other relationship to cultivate marijuana is likely illegal. Investigations have revealed these storefronts are involved in the illegal distribution and sale of marijuana for money and not the simple possession of marijuana by qualified patients and their primary caregivers for the personal medical purposes of the patient. Page 90 Medical Mariivaha Dispensaries and Delivery Services Medical marijuana dispensaries and delivery services in Orange County consistently advertise their services.on Internet sites such as http.-//legalmaciivanadisuensaryeom http;//www.canormLore/, ww-w.weedmans.com and in the OCWeekly publication. There is oven a mobile telephone application, iPot, to locate marijuana dispensaries. Many 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 are even dispensary colleges to educate business owners on operating dispensaries, -Two are located In Los Angeles - Dispensary University and Oaksterdam University and two in Orange County - Cannabis State in Sunset Beach and Othersida Farms In Costa Mesa. Frequently, these dispensaries have close business relationships with physicians who specialize in providing examinations of people seeking a medical marijuana recommendation. Dispensaries have distributed advertising flyers and discount coupons for physicians. Delivery services appear to be increasing in numbers as more law enforcement agencies are taking enfeicement action against dispensaries. The associated public safety concerns can be just as significant as with a dispensary. Anecdotal evidence suggests that many crimes associated with delivery services go unreported to law enforcement. Local licensing and other legal business requirements are rarely followed. Identifying and locating these delivery businesses can be 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 (Los Angeles Times estimated 966). There are approximately 60-80 in Long 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 lists the number of known Medical Marijuana Dispensaries (85) and delivery services (I4) in Orange County as of January 1, 2010. It is important to understand that the number and locations of dispensaries and delivery services in Orange County changes fiequentl-y. Page 91 Orange County Medical Marijuana Dispensaries and Delivery Services Jurisdiction Number of Known Number of Known Medical Marijuana Medical Marijuana Dispensaries Delivery Services Aliso Viejo 0 0 Anaheim 5 5 Brea 0 0 Buena Park 0 0 Costa Mesa 11 4 Cypress 0 0 Dana Point 5 0 Fountain Valley 1 0 Fullerton 0 0 Garden Grove 3 0 Huntington Beach 0 0 Irvine 3 0 La Habra 0 0 La Palma 0 0 Laguna Beach 0 0 Laguna Hills 2 0 Laguna Niguel 3 0 Laguna Woods 0 0 Lake Forest l l 0 Los Alamitos 0 0 Mission Viejo 0 0 NewportBeach 2 0 Orange 2 0 Placentia 0 0 Rancho'Santa Margarita 0 0 San Clemente 0 0 San Juan Capistrano 0 '' 0 Santa Ana 31 5 Seal Beach Stanton 0 0 Tustin 0 0 Unincorporated County 6 0 Area Villa Park 0 0 Westminster -----. --. -. 0... 0 . . Yorba Linda 0 0 Orange County totals 85 14 Page 92 Public Safety Incidents in Orange County To understand the 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 actual incidents: Costa Mesa • An Individual who owned a legitimate massage establishment rented a quite directly across from a business alleged to be dispensing marijuana. The massage business reported they could smell the burning marijuana permeating their business and wanted to relocate their massage business. However, Costa Mesa currently has a moratorium on massage establishments and therefore the business is unable to relocate. • A business owner rented a suite in a business complex that is surrounded by several businesses allegedly involved in dispensing marijuana. The business owner reported a high volume of foot traffic and the numerous "clientele" on the premises were negatively impacting their business. Therefore, the business owner plans to relocate the business. Huntington Beach • An undercover police detective attempted to buy medical marijuana from a medical marijuana dispensary. He was told he would first need to obtain a recommendation from a physician. The dispensary employee gave the detective a single -page flyer advertising a physician who could provide the required recommendation. The flyer included a discount coupon for the physician's services. The detective visited the physician's office expecting an examination. Instead, the detective completed a short medical questionnaire, spoke with the physician for less than five minutes and then was given a recommendation card. There was no physical examination. There were no standard medical equipment (blood pressure tndiiit& cuff, stethoscope) devices and no medical certificates displayed. The detective had just told the physician of previous headaches and that when he, detective, smoked marjjuana the headaches went away. The physician agreed that marijuana was good for headaches. However, the physician told the detective he would need to return to the doctor in three months for another examination. The detective paid the physician $125.00 which included a 25% discount since the detective had the flyer. The detective was them able -to - return to the dispensary and purchase marijuana. • Police detectives received information there was going to be a "420 party" at a local tobacco products, or "smoke shop", business. "420" is a slang term referring to marijuana. The party was to include live entertainment and an illegal raffle. The business was not licensed or permitted for any of these activities. Detectives 10 Brea Page 93 advised the business that the planned party would be illegal. The business agreed Want host the event. However, the business did hold a marijuana party at a vacant storefront adjacent to the smoke shop. This party included a physician who would provide an examination, for a fee, and then issue a medical marijuana recommendation card. The doctor described himself as a "caregiver." After receiving the card the detectives would be able to purchase marijuana from a printed price list inside the business. The business was having a "Valentines day" special. Several weeks later, detectives made ton tact with a person working at the business and arranged for a delivery of medical marijuana to a local hotel. An individual contacted tho city about a business permit for a medical marijuana dispensary. He was told the city had an ordinance prohibiting such establidunents. He opened -up a dispensary anyway under the guise of a food shop selling brownies, popcorn, etc. The paperwork he provided was falsified and the products were laced with marijuana. One of the Brea'Police Department narcotics detectives saw the business's advertisement on the internet. The detective obtained a marijuana recommendation card from aphysician in Lake Forest. With that recoinmendation card, the detective purchased marijuana at the shop at current sheet level prices. The individual was charged with municipal code violations and felony sales. YYo iia Linda • Detectives received numerous complaints of a business that had excessive foot traffic and the smell of burning marijuana. The location was not licensed for any type of business through the City. Detectives entered the business under Lite guise of being prospective customers. The entrance was monitored by cameras and a manned cage. Once inside, the 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. Ile and two people working the counter were arrested for sales. Property records turned up fictitious names 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 criminal court, The defendants had free legal council from NO12ML (The National Organization for the Reform of Marijuana Laws) who brought people on crutches and in wheel chairs into court. • Brea Police located a subject flom Lake Elsinore making deliveries of marijuana to Orange County with his first stop being Yorba Linda. He was located on the internet. He was arrested after a controlled buy in the east end of the city. 11 Orange' The East Hills Patient Association applied for a business license tax application. However, the business did not fully disclose its Intentions of providing medicinal marijuana. The license clearly stipulated "No retail sales." The applicant indicated on the application the business -was providing consultation and general services to outpatient and elderly patients. The applicant clearly stated he would not be a marijuana dispensary. At a later time, detectives observed anadvertisement in the OC Weekly publication reference the same location distributing marijuana. The advertisement also indicated a discounted price for fust time customers. Detectives created a fraudulent physician recommendation .card, which listed a fictitious doctor's name. Detectives entered the business, in an undercover capacity, provided the recommendation card to the business owner and were instructed to wait in the lobby while the legitimacy was confirmed. The 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 reccmtncndation •card. The other detective, who was waiting in a vehicle outside of the business, confirmed on his cell phone, the patlent/detective's recommendation was legitimate. The patient/detwilve was escorted to a secured room. The detective did not see any uniformed security present during the entire transaction. The room possessed a display case, which contained several different types of cannabis. There was an exchange of U.S. currency for marijuana, which was in violation of the (range Municipal Code. A crin final complaint was ultimately filed through the Superior Court. Detectives received a `°We -Tip" report about the Orange County Healing Patients Association. Detectives learned there was no existing license for that location and the business owner attempted to circumvent the system bynot applying for a City of Orange business tax license. Detectives entered the business, in an undercover capacity, to determine whether or not they were operating a medicinal cannabis dispensary. Detectives created a fraudulent physician recommendation card, which listed a fictitious doctor's name. The flctitious recommendation card was provided and the patient/detective was able to purchase marijuana. The seller was cited for Business Tax Certificate code viulation. Although it was difficult to determine whether or not customers had a legitimate physical disability or illness, the average patients 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 walking cane, crutch, wheelchair, or caregiver. 12 Page 94 Fullerton Page 95 •' On February 13, 2008 at about 1100 hours, police detectives inspected several Cannabis Dispensaries operating in the City of Venice, California. These locations were published on the UNOR I 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 be 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 f111ed out the medical questionnaire and was told to produce a valid photo identification card. The detective provided a photo ID card which had been issued by the North Orange County School of Continuing Education. The detective was escorted to a room to be interviewed by a male who identified himself as a physician. Later the detective was able to confirm the doctor was, in fact, a licensed physician and surgeon in good standing. The interview/examination lasted 3-5 minutes. The detective told the doctor he wanted a medical marijuana card so he could legally possess marijuana. He told the doctor. he smoked marijuana when he woke up in the morning with a sore neck and also found marijuana'helpNI .when having difficulty sleeping at night. The doctor told the detective he qualified under State law to use 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 feel relief from his medical conditions. The doctor told him he did not know and suggested that he experiment with marijuana to.deterrttine the correct dose. The detective returned to the reception area where he paid $75.00 for a laminated Medical Marijuana Card. The price of the cards ranged from $75.00 for 3 -months to $140.00 for 12 -months The detective was allowed access to the dispensary and smoking room. Iie saw five -or six young people who appeared to be in their late teens or early twenties lying on sofas'smoking cannabis. A female behind a Plexiglas window showed the detective various samples of marijuana and hashish. He purchased 178 ounce of marijuana for $60.00, which was marketed as "Orange. Crush". He also selected a small amount of hashish which -he was charged an additional $40.00. The sale was not rung up on a cash register or computer and he was not offered a receipt for the transaction. A detective called "OC Private Caregivers" 949-887.7246. He had obtained this phone number from the "NOP3AL." web site as one of 19 services that delivers medical. marijuana in Orange County. The detective spoke to a subject who identified himself as "Jeff'. The detective told "Jeff' that he had a medical marijuana card issued to him by a physician and wanted to order marijuana. Jeff told him that he could usually deliver anywhere in Orange County within one hour, depending on the current traffic conditions. Jeff said his service is open 13 Page 96 from loam tol2am, 7 days -a -week. He said that he was running a "Valentine's Special" today and the detective could save $40.00 off the purchase of an ounce of marijuana. The detective ordered one ounce of marijuana for $300.00. the detective obtained a room at a local motel and waited for the delivery of his order. A short time later, a mate arrived at the motel carrying a clipboard. This subject identified himself as "Tim". The police surveillance team had observed the subject arrive in a 1994 Mercedes Benz. "Tim" entered the motel room and the detective presented him with the medical marijuana card. "Tim" verified the detective had $300.00 in cash and exited the room telling him that the marijuana was in his car. He returned a short time later carrying two white paper bags that contained two round plastic pill vials with marijuana. Patrol officers were dispatched to a location 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 in possession of the handgun. There was also a plastic bag near him which contained approximately three ounces of marijuana. He was safely detained and transported for medical treatment. A second shooting victim had driven himself out of the neighborhood to a gas station at Harbor and Bastanchuty. Of0cers located him and he was also transported for medical care due to a single gun shot wound to his chest. Investigators discovered that both shooting victims had arrived at the location together and were shot during an attempted drug deal. The two "victims" attempted to rob the dope dealer of his Medical Marijuana. Further investigation revealed that the two "victims" were La Habra gang members. The shooter/dope ddaler 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. Orange Countv Sheriff's Department • Deputies were dispatched to an alarm call at a medical marijuana dispensary business. Upon their arrival, deputies saw three suspects running away from the business. Within a few minutes, four suspects were 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 dispensary owner, the business had been burglarized two weeks prior. The owner did not report the break-in, in which a safe containing -$20,000 of marijuana.was stolen. As a result of the first burglary, the owner installed the alarm system that resulted in the arrests during the second burglary. 14 Page 97 A home invasion robbery occurred at a residence in an unincorporated area of Santa Ana. The robbery stemmed from the victim cultivating marijuana. at the residence.' In addition, the victim was involved in supplying a collective and operating a marijuana delivery service.. At 1;00 AM, the victim woke up when he heard the side door of his residence forced open. Moments later, two suspects attacked fhe victim inside the master bedroom area. The victim was struck numerous times around thehead area with a tire- iron. The assailants then tied up the 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' pounds of recently harvested marijuana, electronics, and mise. items. 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. The victim claimed to 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 Sheriffs' Investigators. • An investigation and search warrants tied to dispensaries in Laguna Niguel and Irvine led to the owner's residence in Nellie Gail (Laguna Hills). At the location, investigators found PVC containers with mud on the outside. Inside the containers, they found packaging consistent with bulk money laundering. A fiuthei search of the residence revealed over $100,000 in currency. During -the search at the Irvine storefront, documents showing a storage unit rental in Ladera Ranch were.identifled. Investigators obtained a search warrant for the location the same evening. A search of the unit located additional PVC containers and over $200,000 in currency. Documentation and physical evidence demonstrated the owners were burying the PVC containers with bulk currency in their backyard. • A number of undercover investigators have received medical marijuana recommendations from various doctors throughout Orange County. In some instances doctors who advertise their cannabis service on-line will not issue a iccommendation without a diagnosis from another physician. The "cannabis doctor" conducts a cursory review of diagnoses and prescriptions records from the prior treating physician. The "cannabis doctor" concurs with the dlagnosm, and then writes a recommendation for medical marijuana. Other doctors that specialize -in, marijuana recommendations will diagnose and recommend from their office or rented hotel rooms. In every case these doctor's provide 24/7 recommendation verification for dispensaries, which is a 15 Page 98 significant selling point. With round-the-clock verification, dustomers believe they do not need to obtain a State Medical Marijuana Card. The Sheriffs Department investigative process has resulted in search warrant selvice for seven dispensaries in Lake Forest, Laguna Niguel, Dana Point, Irvine and Unincorporated La Habra. In addition, each storefront has a number of residences related to each location. While post seizure analysis is being. conducted on many of these investigations; two locations have resulted in case filings. In addition, two suspects have pled guilty to various charges with one operator pleading to a four year prison term, Westminster A police informant reported there had been an armed "takeover" robbery at.a. medical marijuana dispensary: The business had not reported the crime. The loss included marijuana, cash and personal records. When contacted by the police, the dispensary operators, atter some time, confirmed the crime had occurred. However, the operators refused to provide any details of the crime or cooperate with the investigation. R Page 99 Related Governmental Agencies and their Potential Imnact on the Issue The State Board of Equalization, Franchise Tax Board and the California Medical Board all have a unique role when dealing with medical marijuana. It is important to understand the requirements and restrictions each'of these agencies, must follow. The following are descriptions of areas of jgrisdiction relating to the issue: STATE BOARD OF EQUALIZATION According to the Board of Equalization (BOE), the retail sale of medical marijuana does requite a seller -to obtain a permit and pay sales tax. The BOE has always considered medical- marijuana taxable and began issuing permits in 2005. The BOE also indicated that medical marijuana 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 seller's permits and/er have notpaid their sales tax, including medical marijuana dispensaries. The BOE is currently involved in a "door to door".program to ensure compliance. FRANCHISE TAX BOARD According to the Franchise Tax Board (FTB), any business, including a medical marijuana dispensary, must 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 strueture'selected. If the F1'B learns that a particular business is not filing their income tax returns, they will follow-up to ensure compliance and take potential legal action. CALIFORNIA MEDICAL BOARD The Medical Board of California has provided a written statement on wwwmedbd.ca.Rov/med.cal Mariivana.lrtml regarding physicians who choose to participate in the implementation of the Compassionate Use Act. The Board's position "On November S, 1996, the people of Caljfornta passed Proposition 215. Through this Initiative Measure, Section 11362.5 was added to the Health & Safety Code, and is also known as the Compassionate Use Act of 1996. The purposes aftee Act include, inpart., "(4) To ensure that seriously ill Califor. pians have the right to obtain and use marijuana for medical proposes where the 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,'A1DS, chronic pain, spasticity, glaucoma, arthritis, migmine, or any other illness for which marijuana provides relief- and 17 Page 100 (B) To ensure that patients and their primary caregivers who obtain and use marjuana for medical purposes upon the rzcommendatlon of a physician are not subject to criminal prosecution or sanction, " patient for medical purposes." The Medical Board of California developed this statement since medical marijuana is an emerging treatment modality. The Medical Board wants to assure physicians who choose aacc epted standards of medical responsibility. The were receipt of a complaint that the physician is recommending medical marijuana will not generate an investigation absent additional information indicating that the physician is not adhering to accepted medical standards. These accepted standards are the same as any reasonable and prudent physician would follow when recommending or approving any other medication, and include the following: STANDARDS OF CARE 1. History and good faith examination of the patient. 2. Development of a treatmentplan with objectives. 3. Provision of informed consent including discussion of side effects. 4. Periodic review of the treatment's efficacy. 5. Consultation, as necessary. 6. Proper record keeping that supports the decision to recommend the use of medial marijuana. In other words, if physicians use the same care in recommending medical marijuana to patients as they would recommending or approving any other medication, they have nothing to fear from the Medical Board. Here are some important paints to consider when recommending medical marlivana: - 1. Although it could trigger federal action, making a recommendation in writing to the patient will not trigger action by the Medical Board of California. 2. A patient need not have failed on all standard medications, in order for a physician to recommend or approve the ude of medical marijuana. 18 Page 101 3. The physician should determine that medical marijuana use lsnot masking an acute or treatable progressive condition, or that such use will lead to a worsening of the patient's condition. 4. The Act naives certain medical conditions for which medical marijuana may be useful, although physicians ate not limited in their recommendations to those speck conditions. In all cases, the physician should base his/her determination on the results of clinical trials, if available, medical literature and reports, or on experience of that physician or other physicians, or on credible patient reports. In all cases, the physician must determine that the risk/benefit ratio of medical marijuana is as good, or better, than other medications that could be used for that individual patient. 5. A physician who is not the primary treating physician may still recommend medical marijuana for a patient's symptoms. However, it is incumbent upon that physician to consult with the patient`s primary treating physician or obtain the appropriate patient records to coelrtn the patient's underlying diagnosis and prior treatment.history. 6. The initial examination for *the condition for which medical marijuana is being recommended must be in-person. 7. Recommendations should be limited to the time necessary to appropriately monitor the patient. Periodic reviews should occur and be docutnented at least annually or more frequently as warranted. 8_ If a physician recommends or approves the use of medical marijuana for a minor, the parents or legal guardians must be fully informed of the risks and benefits of such use and must consent to that use. Physicians may wish to refer to CMA's ON-CALL Document #1315 titled "The Compassionate Use Act of 1996", updated annually for additional information and Although the Compassionate Use Act allows the use of medical marijuana by a patient upon the recommendation or approval of a physician, California physicians should bear in mind that marijuana is listed in Schedule I of the federal Controlled Substances Act, which means that it has no accepted medical use under federal law. However, in Conant marijuana. However, the court cautioned that physicians could exceed the scope of this constitutional protection if they conspire with, or aid and abet, their patients in obtaining medical marijuana. Department of Health Care Services / CaULiornia &agdment of Public Health - California Medical Mariivana 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 will initiate an investigation. The investigative unit will determine whether or not the physician 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 MBC complaint unit's.investigation, they will forward their findings, if applicable, to the Attorney General's (AG) office for review. Tfie AG's will present their case to the Administrative Law Judge, who will make a determination. The Medical Board will then impose disciplinary actions against the physician. Those disciplinary actions include, but are not limited to the following. administrative penalties, fines, probation, suspension, and revocation of licenses. Furthermore, in regards to physicians recommending the use of medicinal cannabis to their patients, they shall adhere to the previously listed eight items of "Consideration". Local Orange County Law Enforcement officers should contact the a MBC office to address local.complaints and initiate a parallel investigation, which will be conducted by the Medical Board Complaint Unit. The MBC 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 Strategies to Address Associated Public Safety Issues Regulation of land use— this can be one of the most effective 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 6 counties have enacted laws banning dispensaries. The courts have ruled that cities and counties may not create an ordinance that is in conflict with State or Federal Iaw (California Go'vemnient Code 37100). Investigate and. prosecute illegal dispensaries and delivery services — these investigations are usually time and labor intensive; however, can be productive in eliminating a specific business within a jurisdiction. Past investigations have found these businesses. possessing weapons, significant cash and links to organized crime. The target of these investigations should he to identify who is supplying the marijuana, who is operating the dispensary, who is profiting, is the dispensary engaging in over-the-counter marijuana sales and the dispensaryis not Associating to collectively or cooperatively cultivate marijuana for medical purposes. A critical component of the investigation is for the law enforcement agency to contact and collaborate with the district attorney's office at the start of the investigation. There may also be the need to contact the agency's city attorney if local ordinances and/or land use issues will be involved. Note: As of February of 2009, the Drug Enforcement Administration will not pursue criminal investigations involving marijuana dispensaries if the dispensaries are following State laws. • Collaborate with other law enforcement agencies — operators of marijuana dispensaries and delivery services tend to move from jurisdiction to jurisdiction. Orange County law enforcement 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 — LA. Clear/ihDTA provides a training class "Illegal Medical Marijuana Dispensaries Investigations" (www.lahidtatrainingora) and the Los Angeles Sheriff s Department hosts training on "Medical Marijuana for Patrol Officers" (gdwalsh@lasd.org). Both classes can be highly -beneficial. ---- • Resources — "White Paper on Marijuana Dispensaries" by the California police Chiefs As'sociation's Task force on Marijuana Dispensaries (http://www californiapolieechiefs.org/) 21 ATTACHMENT C ACC -OC Report on Cannabis Use & Cultivation Policies r IWAOi A.,-. ASSOCIATION OF CALIFORNIA CITIES 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 r I W 4,J Ai ASSOCIATION OF CALIFORNIA CITIES 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 o 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 0 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 0 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 ASSOCIATION OF CALIFORNIA CITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY 2 Contents CouncilDevelopment....................................................................................................................................4 Have Cities Responded to Cannabis Dispensaries?......................................................................................6 Breakdownof Answers.............................................................................................................................6 What Actions Have Cities Taken?.................................................................................................................7 Breakdownof Answers.............................................................................................................................7 OtherResponses.......................................................................................................................................7 Reason for No Action or Further Action.......................................................................................................9 Breakdownof Answers.............................................................................................................................9 OtherResponses.......................................................................................................................................9 AB243 Response.........................................................................................................................................10 Breakdownof Answers...........................................................................................................................10 OtherResponses.....................................................................................................................................10 CypressCode...............................................................................................................................................11 FullertonCode.............................................................................................................................................12 LagunaBeach Code.....................................................................................................................................13 StantonCode...............................................................................................................................................14 VillaPark.....................................................................................................................................................15 Respondents...............................................................................................................................................16 1HL ONLIN C RLSUUK(i L ASSOCIATION OFCALIFORKIACITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY 3 Council Development 11/4/15 Aliso Vielo Moratorium ➢ Agenda Location: Discussion ➢ Title: Local Implementing Regulations Regarding Medical Cannabis Uses and Interim Moratorium Ordinance ➢ 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 ➢ Agenda Location: Public Hearing ➢ Title: Resolution of Intention — Ordnance Amendment to Title 15 — Medical Cannabis Cultivation ➢ 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 Vallev Ban All Use Including Cultivation ➢ Agenda Location: Consent ➢ 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 Vieio 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 ASSOCIATION OF CALIFORNIA CITIES FORGOOD PUBLIC POLICY ORANGE COUNTY 4 11/24/15 Buena Park Ban All Use Including Cultivation ➢ Agenda Location: New Business ➢ Title: Interim Urgency Ordinance Adoption — Prohibition of All Commercial Medical Marijuana Uses Including Delivery and Cultivation ➢ Recommendation: To adopt an interim urgency ordinance prohibiting all commercial medical marijuana uses including delivery and 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 Including Cultivation ➢ Agenda Location: Consent ➢ 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 ➢ 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 ASSOCIATION OF CALIFORNIA CITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY 5 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? Answer Options Response Response Percent Count Yes 93.3% 14 No 6.7% 1 answered question 15 skipped question 0 Has your organization taken steps to address cannabis use or cannabis dispensaries in response to public concerns? 6.7% (i) I�Z 93.3% THE ONLINE RESOURCE ASSOCLATIOPIOFCALIFOMIACITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY M 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 Other Responses • Medical Marijuana dispensaries were banned in 2014. The prohibition includes any person, place, or use • Previously adopted 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 subject 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 Asso67TION OF CALIFORNIA CITIES FORGOOD PUBLIC POLICY ORANGE COUNTY 7 Response Response Answer Options Percent 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 20.0% 3 dispensaries 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 adopted 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 subject 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 Asso67TION OF CALIFORNIA CITIES FORGOOD 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. THE ONLINE RESOURCE ASSOCLATIOPIOFCALIFOMIACITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY L-3 What action(s) has your city taken or will take in the next 30 days? Check all that apply 80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0% 0.0% U) o c � 0 N i fn C ((^a' L ++ N cc (D •0 0 'O W cc (L6 (6 � ;� O (0 � C U N V U U Z } 0- (A N C E 0 L F 0 LP N U J a) = = � N rr THE ONLINE RESOURCE ASSOCLATIOPIOFCALIFOMIACITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY L-3 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 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% Response Response Answer Options Percent Count Resident Concerns 28.6% 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% Why has or hasn't your city taken action on cannabis use or cannabis dispensaries? Check all that Apply 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0% 0.0% C L C(n cn O O — In f O O O C C UN ate+_ O ca U Q U N QU M 00 OHO �w O THE ONLINE RESOURCE ASSOCLATIOPIOFCALIFOMIACITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY PEI AB 243 Response Breakdown of Answers What action(s) 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) THE ONLINE RESOURCE ASSOCL4TiOh10FCALIFORNIA What action(s) have been taken, or what action(s) will your city take, on the regulation of cannabis cultivation/growth? 26.7% 46.7% 7 answered question 15 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. Response Response Percent Count 26.7% 4 13.3% 2 40.0% 6 13.3% 2 46.7% ° What action(s) have been taken, or what action(s) will your city take, on the regulation of cannabis cultivation/growth? 26.7% 46.7% 50.0% 45.0% 40.0% 35.0% 30.0% 25.0% 20.0% 15.0% 10.0% 5.0% 0.0% a) L o) a) � � C U In C W _ `� .— C C 0 'E,O -C Q- C— O L M0 U C N C C C '� �— > cu C cu O 0-0- > % U (6 +J U o C U ` 0 0) m m U (6 U J m o N U U Response Response Percent Count 26.7% 4 13.3% 2 40.0% 6 13.3% 2 46.7% ° 26.7% CITIES FOR GOOD PUBLIC POLICY ORANGE COUNTY 10 Cypress Code Cypress Municipal Code: 2.06.030. Commercial zoning district land uses and permit requirements. A. Allowed land uses. Table 2-6 indicates the uses allowed within the OP, 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 (Director's 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 P Permitted Use C Conditional use—Conditional Use Permit required (See Subsection 4.19.070) "—" Use not allowed S 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 — — — — 6.31.020 (Ord. No. 1062, § 2(Exh. A), 11-25-04; Ord. No. 1073, § 3, 4-10-06; Ord. No. 1082, § 3, 9-11-06; Ord. No. 1117, § 2, 5-10-10.) THE ONLINE RESOURCE ASSOCIATION OF CALIFORNIA CITIES FORGOOD 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: .010 "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 ASSOCIATION OF CALIFORNIA CITIES FORGOOD PUBLIC POLICY ORANGE COUNTY 12 (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. (Ord. 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, the formatting 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 ASSOCIATION OF CALIFORNIA CITIES FORGOOD PUBLIC POLICY ORANGE COUNTY 13 Stanton Code Chapter 9.38 MEDICINAL MARIJUANA DISPENSARIES PROHIBITED 9.38.010 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 11362.5 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 1745 et seq.) of the Health and Safety Code. (Ord. 953 § 3, 2008) THE ONLINE RESOURCE ASSOCIATION OF CALIFORNIACITILS FOR GOOD PUBLIC POLICY ORANGE COUNTY 14 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 Park 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 Villa Park is hereby updated to prohibit medical marijuana dispensaries. (Ord. #2010-552, § 3) THE ONLINE RESOURCE ASSOCIATION OF CALIFORNIA CITIES 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 Llorens 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@cityofalisoviejo.com Planning ssagert@anaheim.net Community Development jsaltzberg@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 I HL l3N LI N L RE NO U R(A ASSOCIATION OF CALI FORK [A CITI ES FOR GOOD PUBLIC POLICY ORANGE COUNTY 16 ATTACHMENT D December 8, 2015 Planning Commission Draft Minutes MINUTES REGULAR MEETING TUSTIN PLANNING COMMISSION DECEMBER 8, 2015 7:04 p.m. CALL TO ORDER Given INVOCATION/PLEDGE OF ALLEGIANCE: Smith ROLL CALL: Chair Thompson Chair Pro Tem Lumbard Commissioners Altowaiji, Kozak and Smith None PUBLIC CONCERNS CONSENT CALENDAR: Approved the 1. APPROVAL OF MINUTES— NOVEMBER 10, 'n15 November 10, 2015 Minutes. RECOMMENDATION: That the Planning Commission approves the Minutes of the November 101 2015 Planning Commission meeting as provided. It was moved by Lumbara, seconded by Kozak, to approve the November 10, 2015 Minutes. Altowaiji had an excused absence for the November 10, 2015 meeting, therefore he abstained. Motion carried 4-0-1. PUBLIC HEARING: ' %,-, Thompson Thompson requested to switch the order of two (2) of the Public Hearing items (Items #3 and #5). Continued to GENERAL PLAN AMENDMENT 2015-01; TENTATIVE PARCEL MAP January 12, 2015-139; DESIGN REVIEW 2015-10; AND CONDITIONAL USE 2016. PERMIT 2015-21 APPLICANT: Yenny Ng Designs Architects 1524 Brookhollow Drive, Suite 6 Santa Ana, CA 92705 LOCATION: 1051 Bonita Street BACKGROUND: PROPERTY OWNER: Goliath F&M LLC 10 Dunes Bluff Newport Coast, CA 92657 The proposed project involves the construction of a four (4) unit condominium complex consisting of two (2) buildings comprising 5,154 square feet total on an 8,500 square foot lot located at 1051 Bonita Minutes — Planning Commission December 8, 2015 — Page 1 of 10 Street. Development of the site will require demolition of all existing structures on-site inclusive of a primary residence with a "D" rating per the City's Historical Resources Survey (non-contributing structure). Staff provided two of the three required notices for the project and the item is being continued in order to provide adequate time to complete the third notice of the project pursuant to State law. RECOMMENDATION: That the Planning Commission continue their consideration of GPA 2015-011 TPM 2015-139, CUP 2015-21 and DR 2015-10 to January 121 2016, to provide adequate public notice of the project prior to the public hearing. There were no members of the public, sviio i questions or concerns, therefore no need to open up the public hearing for alis item. Altowaiji Altowaiji recused himself from the item since he ha=; conducted business, in the past, and will continue conducting business with the po perty owner. It was moved by Thompson, seconded by Smith to cone, ii ie the item to the January 12, 2016 171. 1 , :r)ing Commission meeting. Motion camed 4-0-1. Adopted Reso. 3. CONDITIONAL a SSL i F=RMIT 2015-03 No. 4306, as amended. REQUEST: Swiontek A request to establish ut ; p operate a church use on the ground floor of an existing commercial building and joint use parking to accommodate the use at 560 W. `` `street. APPLICANT/ PROPERTY OWNER: ENVIRONMENTAL: Dennis Montgomery D&M Painting 1759 N. Batavia Street Orange, CA 92365 This project is categorically exempt pursuant to Section 15301 (Class 1) of the California Environmental Quality Act (CEQA). RECOMMENDATION: That the Planning Commission adopt Resolution No. 4306 approving Conditional Use Permit (CUP) 2015-03 to establish and operate a church use on the ground floor of an existing commercial building located at 560 W. 1 st Street and authorize joint use parking. Presentation given. Minutes — Planning Commission December 8, 2015 — Page 2 of 10 Bins ack Sinsack informed the Commission of her discussion with Kozak, prior to the meeting. She clarified and requested a modification to one of the conditions which generally included that the "church area" could occupy all of the ground floor area with the exception of the 949 square foot retail tenant space which fronts on First Street; and staff would recommend a modification to Condition 3.2 to provide that clarification. Thompson Thompson referred to the parking demands within the Parking Analysis provided. He asked about the church use component with regards to the seating within the sanctuary. Thompson also inquired on the governing aspect of the parking and how the number 32 parking spaces were derived. Swiontek Swiontek's response to Thompson's question generally included: Referred to the Tustin City Code (TCC); the sanctuary is the most intense use so if the offices were to be operated at the same time as the church, staff would take that into account as well, as far as the number of parking spaces; and per the parking analysis, simultaneous use cannot occur within the parking on-site. 7:21 p.m. Public Hearing opened. The following individuals spoke in favor of the project: mr. & Mrs. Marco Avalos; Jessica Aguas; Monique Kaihewaly; Sharon Teter; Mr. & Mrs. Scott Elgin; Mr. & Mrs. Dennis Montgomery, -rank Ortega; Esther Salas; Matt Montgomery; Alicia Cardona; and Linda Saw i lrson. Ms. Aumielle Compton, resident, had questions/comments which generally included: How the church use would impact the City financially; current businesses in the area already generating tax revenue; she asked if the church would be contributing to the community financially; and she did not feel the church would make a difference in today's society (i.e. promiscuity, homelessness, violence, etc.). The Commission's comments/questions for the applicant generally included: Requested the history on the locations of Mr. Montgomery's church; questioned the services outside of the church; conducting children's services at parks in Tustin; and community outreach. Mr. Montgomery:s response to the Commission's questions generally included: Brief background on his church's start in the City of Orange, then Tustin; he stated he always generates revenue; he is a jobs creator; reason for children's services taking place in Tustin parks is because the children cannot travel to Orange where services are currently being held; and that he has provided a "couple of people" a meal but he is not giving out food or clothing on a regular basis. Mr. Montgomery requested a modification to the church hours operation to include evenings when offices are not operating. 7:51 p.m. Public Hearing closed. Further deliberation ensued among the Commission, which generally included: Using the facility on days other than the days listed in the CDP, specifically Minutes — Planning Commission December 8, 2015 — Page 3 of 10 Condition 3.1 in the resolution; positive comments regarding the project; how the church use would affect the community; street frontage being maintained per the First Street Specific Plan; and the parking concern. Binsack Per Binsack, the hours listed in the resolution were due to the Demand Analysis and that a modified request was given to Swiontek and the Commission. She recommended that the Commission leave the hours as they were presented and give staff the opportunity to take a look at the applicant's request as well as give the traffic engineer the opportunity to do an analysis. As long as there is not a negative impact (enough parking spaces at any given time) it would allow City staff the opportunity to make modifications pursuant to Conditions 3.1 and 1.1. It was moved by Altowaiji, seconded h , v Lombard, to adopt Resolution No. 4306, as amended. Motion carried 5-() Adopted Reso. 4. CONDITIONAL USE PER�`vi - 2015-27 No. 4302 REQUEST: To authorize a reduction of off-street parking via joi, e+ t ase/shared parking that would allow for the conversion of up to 6,7uu s.f. of office to restaurant and retail uses at 13102-13152 Newport Avenue. APPLICANT: Mike Lin Nai Capital 1920 Main St., Suite 100 Irvine, �:A P?614 ENVIR0 1 CENTAL: PROPERTY OWNER: Robert Ko Ko's Packers Square Inc. 747 S. Lemon Ave. Walnut, CA 91789 This project is categorically exempt (Class 1) pursuant to Section 15301 of the California Environmental Quality Act. RECOM,i ,i i :NDATION: That the Planning Commission adopt Resolution No. 4302 approving Condilivnal Use Permit 2015-27 to authorize a reduction of off-street parking requirements through joint use/shared parking to accommodate the conversion of up to 6,700 square feet of office space to retail and restaurant uses for Packers Square located at 13102 — 13152 Newport Avenue. Beier Presentation given. Thompson Thompson suggested an agreement that ties the shared parking use be put in place since the property consists of four (4) separate lots, and there being one (1) owner of all four (4) lots should the owner sell one of the lots. Minutes — Planning Commission December 8; 2015 — Page 4 of 10 Beier In response to Thompson's suggestion, Beier's response generally included: There is currently no deed restriction binding the four (4) lots together; however, Resolution No. 4302 would be recorded to each of the four (4) lots; the Agreement to Conditions Imposed would also link the four (4) lots since they function together and are part of one (1) common lot. 8:08 p.m. Public Hearing opened. Ms. Aumielle Compton asked if the retail and food service jobs were the only jobs available or if there would be other possibilities to bring higher wages to business centers in Tustin. Willkom In response to Ms. Compton's questions, Willkom stated that the center has multiple types of uses such as retail, restaurant, a medical office, and specialty office uses (variety of income). Ms. Margaret Zatyko, resident, spoke in opposition of the item and her concerns generally included: The negative impacts the restaurant would bring including (i.e. overflow parking in surrounding neighborhoods - Tustin Heights, specifically her street which is permit parking only); noise; trash; homeless; she has worked with the City's Code Enforcement on many occasions; and asked if the tenants would have a permitted area for trash. Thompson Thompson asked staff to explain Condition 2.2 in the event conditions change at the center. Binsack Binsack referred the Commission to the Demand Analysis which was based on all uses occurring at the same time and ensures there is not an impact; however, if something changes over time, if certain uses become extremely successful, and do have an impact, the City has the capability of reconsidering approval and that the tenant would have to take action immediately to fix the impact (i.e. valet parking, considering varied hours, etc.). Staff has dealt with this type of situation before so the issues can be addressed. Binsack stated the City has a noise ordinance in place, which is standard and requires that applicants comply with the TCC (which addresses trash). With regards to the Tustin Heights concern, Code Enforcement is working diligently to assist the development to come into compliance and to alleviate the impacts to the community to the south of Tustin Heights. Revocation of a permit would be the last resort. The resolution also includes an annual review of the CUP to ensure the project is working well. Thompson Thompson mentioned the many CUP's that have been revoked (various reasons) since he has been on the Planning Commission. Mr. Mike Lin, applicant, real estate agent, stated the center has been largely vacant for several years. He is bringing in quality tenants (restaurant, dance school, health care facility, and a grocery store and Vietnamese restaurant coming soon) and he stated that once the vacant spaces are filled, then the homeless issue should stop. Mr. Lin is looking forward to filling up the center to bring Packers Square to where it once was decades ago to add to the community. Minutes — Planning Commission December 8, 2015 — Page 5 of 10 Smith Smith asked the applicant about the traffic study being exclusively focused on the parking lot (i.e. if research has been done on overflow parking impacting surrounding streets). Mr. Lin did not believe the traffic engineers researched the overflow parking or peak times being that half of the center is vacant. Thompson Thompson mentioned going to Ruby's restaurant in that center and never having trouble finding a parking. 8:19 p.m. Public Hearing closed. Kozak Thanked the neighbors and others for their input on concerns. He had favorable comments with regards to the comments from staff being integrated into the Demand Analysis included) with the staff report. Lumbard Lumbard's comments general) included the City's goals to revitalize the center and is confident staff will key p an eye on this proje(ensure the neighbors are not affected negative) by the incomiro;j businesses. Good addition/improvement to the city. Thompson Thompson's main core . rn would be the parking and how it is being monitored/regulated. It was moved by Kozak, seconded by Lumbard to adopt Resolution No. 4302. Motion carried 4-0-1. Altowaiji abstained from the vote. Adopted Reso. 5. CODE AMENDMENT 2015-005 (ORDINANCE NO. 1466) — MEDICAL No. 4307. MARIJUANA REQUEST: Proposed Draft Ordinance No. 1466 to expressly prohibit marijuana cultivation, proce - ing, delivery, and distribution in all zoning districts in response to the "Medical Marijuana Regulation and Safety Act" ("M M RSA") . ENVIRI -fAMENTAL: 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 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. Minutes — Planning Commission December 8, 2015 — Page 6 of 10 RECOMMENDATION: That the Planning Commission adopt Resolution No. 4307, recommending that the Tustin 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. Lumbard Lumbard disclosed that he was attached to the major Narcotics Unit at the Los Angeles District Attorney's Office in 2009 and one of the attachments included in the staff report was worked on by an individual he worked with, but he did not work on the report himself or have any input or confer with this individual on the report. Reekstin Presentation given. Thompson/ Thompson asked for clarification on all zoning districts and what is precluded Altowaiji (i.e. entire city, open space, parks, residential). Reekstin Per Reekstin, even an "unclassified" area would be part of all zoning districts. It includes all properties within the city. Residential is also included. Smith Smith also asked for clarification to the "act of delivery" of marijuana and how is the City using the Land Use Policy to regulate wholesale delivery to a private residence or retail to a dispensary. Smith asked if the prohibition on delivery is being addressed as a land use issue and how. Reekstin In response to Smith's question, Reekstin explained that a delivery would be a business that is delivering marijuana in the city of Tustin but it would not prohibit someone who lives in Tustin to go into another city to obtain the marijuana for their own use under State law. The ordinance does not specifically address that. _. �..... ti4 Bobak Bobak reiterated the following. 'the ordinance prohibits delivery within Tustin (real properties) subject to zoning regulations; she will be working with staff on an amendment to the draft ordinance before it goes to the City Council to also modify the City's business license regulation to regulate businesses, in general, to insert the same prohibition but since it is not a land use issue it does not have to be considered by the Commission; this would provide more protection even though it is currently covered now in the ordinance; the City's regulation would also cover non -retail delivery (i.e. primary care provider to a qualified patient); the State regulations exempt qualified patients and care providers; the ordinance would not apply to deliveries through Tustin that do not originate in Tustin or end in Tustin (i.e. delivery from a primary care provider in Irvine to Orange); and the City would not have the ability to regulate that type of transaction. Altowaiji Altowaiji stated if a patient (or a family member) wanted to purchase marijuana and bring it to their home it is not clear in the proposed ordinance. He asked if it would be clarified in the future ordinance or if the ordinance would remain as is. Altowaiji also asked about cultivation for a person's use at home. Bobak Bobak's response to Altowaiji's questions generally included: If a qualified patient goes out and purchases medical marijuana at a dispensary it is not considered a delivery; under the City's code provision, the dispensary could not Minutes — Planning Commission December 8, 2015 — Page 7 of 10 be located in Tustin, but if the qualified patient were to go to a dispensary in Santa Ana, Irvine or Orange, to purchase marijuana then take it home, it is not considered a delivery. Bobak further stated she did not foresee that being an issue; if the code is modified, as staff is recommending, then it could possibly be a code enforcement violation which is why it would be added to the business regulation; the code would be clear stating delivery would be prohibited then it would be up to enforcement if someone is violating the law; with regards to the State law, cultivation is exempt from the requirement of getting a State license but State law allows cities to continue to regulate cultivation (a city can prohibit an individual from cultivating their own marijuana); and the ordinance prohibits any cultivation of marijuana within Tustin. 8:37 p.m. Public Hearing opened. Ms. Aumielle Compton spoke in opposition of this item being that she is a medical marijuana patient. Her comments generally included: stated it is a "blanket ban criminalizing patients" as herself; felt the agenda had a negative connotation to it; referred to her surrounding establishments selling alcohol being a negative; mentioned pharmaceutical drugs being the reason for her disabilities and the reason for her using medical marijuana; used Colorado as an example of increased revenue because of medical marijuana; stating the City is taking away her right to use medical marijuana; and it is safer for her to grow her own marijuana. 8:43 p.m. Public Hearing closed. The Commission's deliberation generally included: The impact of who controls what (City vs. State) and would the City retain its authority with business licensing and if not approved, then the State would be the sole authority for regulating marijuana; if the item presented is considered an outright ban of marijuana; it is an ordinance that regulates any marijuana activity which is illegal under Federal code; the City should help address medical marijuana use among individuals the Commission would like the City to retain the authority; request modification with regards to delivery/cultivation for those medical marijuana patients who have prescriptions; the need to protect local control; empathetic to liberty/freedom of choice for those with medical conditions; asked that options be added to the motion; extensive amount of information was provided in the staff report; an ordinance needs to be put in place for the future should the City want to regulate; further explained the public hearing and deliberation process to Ms. Compton. Bobak Bobak's response generally included: Per cultivation and distribution, either the City or the State would be in control, depending on how the Commission and City Council voted on the item; if the City does not adopt a regulation or ban, then the State would assume that the City has no interest in participating in the process and the State would become the sole licensing agency; if the City adopts regulations, then before a person can get a license from the State, a person would have to demonstrate a license from the City; if the City decides to ban altogether, then the City would notify the State and the State would deny any license applications; the proposed ordinance would preserve the local control for the time being and allow staff time to further study the regulations as opposed to an outright ban; the Commission could direct staff to communicate their concerns with regard to individual uses of medical marijuana and land use issue (cultivation) to the Council and ask the Council to direct staff to come back with options; the City currently has a permissive zoning code which means if a use is not expressly identified in the code as a permitted use, it is deemed prohibited; the new State law states if a city wants to ban cultivation, an Minutes — Planning Commission December 8, 2015 — Page 8 of 10 expressed provision is necessary in the code that bans or regulates it; and Bobak informed Ms. Compton that the item would be taken to the Council and she would have an opportunity to speak then and/or provide something in writing being that she chose to continue speaking out of order after the public hearing. Binsack As a point of clarification, Binsack stated the following: Referred the Commission to the TCC's provision that any illegal use under State or Federal law are prohibited in the city; rights are not being taken away from anybody— the prohibition was already included in the TCC; originally, an ordinance was not being taken forward because the City assumed that that prohibition was sufficient; and the proposed ordinance would expressly clarify the prohibition. It was moved by Lumbard, seconded by Altowaiji to adopt Resolution No. 4307 with the added request to communicate to the Council the Commission's concerns with individual liberties to cultivate and/or receive marijuana for their own medical use. Motion carried 5-0 STAFF CONCERNS: Binsack Happy holidays! Merry Christmas! Smith Thanked the business community for the lights in downtovvi , 5 istin. Lumbard Lumbard echoed Smith's comments --n the lights in the downtown. Dile attended the following: 12/1: P layoral Changeover-ngrats tc Mayor Nielsen and Mayor Pro Fern Bernstein 12/4: Christmas tree lighting q imbard announced his son, VVy games', arrival! Kozak KozaK attended the followili! 11/19: Mayor's Thanksgiving breakfast and the groundbreaking of the Armed Forces Reserve Center 11/30: Old Town Lighting ceremony 12/1: Mayoral changeover (congratulated Mayor Nielsen and Mayor Pro Tem Bernstein 12/4: Christmas tree lighting Thanked staff and his fellow Commissioners for their excellent work throughout the year. Merry Christmas! Happy Hanukah! Altowaiji Altowaiji echoed comments previously made. He attended the Mayoral changeover and congratulated Mayor Nielsen and Mayor Pro Tem Bernstein and thanked former Mayor Puckett for his service. Happy holidays everybody! Thompson Thompson echoed comments previous stated. Attended the following: 11/13: BIA dinner 11/18: O.C. Business Council event Minutes — Planning Commission December 8, 2015 — Page 9 of 10 11/19: Mayor's Thanksgiving Breakfast 12/1: Mayoral Changover — congratulations Mayor Nielsen and Mayor Pro Tem Bernstein and former Mayor Puckett for his service! 12/4: Christmas tree lighting Congrats to Wyatt's debut! Merry Christmas! Happy New Year! Happy Hanukah! Kudos to staff: as well. C®l\/MlSSION CONCERNS: 9:08 p.m. ADJOURNMENT: The next regular meeting of the Planning Commission is scheduled for Tuesday, December 22, 2015, at 7:00 ,f).m. in the City Council Chamber at 300 Centennial Way. Minutes — Planning Commission December 8, 2015 — Page '10 of 10 ATTACHMENT E Planning Commission Resolution No. 4307 RESOLUTION NO. 4307 L 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: I. 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 ("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 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. I 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. I. 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. 4th 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(a)); Resolution No. 4307 Page 3 (� ii. Expressly provide that the MMRSA does not limit the authority or IL 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 section 1 9300.5(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 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. -- O. 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 IL 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 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 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 L 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 I V. That on December 8, 2015, a public hearing was duly noticed, called, and l 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 C medical marijuana dispensaries will adversely impact the general welfare of the City as a whole.. X. 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. II. The Planning Commission hereby recommends that the City Council adopt Ordinance No. 1466, amending TCC Sections 9270c and 9297 to expressly prohibit marijuana cultivation, processing, delivery, and distribution in all zoning districts, attached hereto. PASSED AND ADOPTED at a regular meeting of the Planning Commission of the City of Tustin held on the 8`h day of December, 2015. �,.RH .t • ELIZABETH A. BINSACK Planning Commission Secretary Resolution No. 4307 Page 6 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 8th day of December, 2015. PLANNING COMMISSIONER AYES: PLANNING COMMISSIONER NOES: PLANNING COMMISSIONER ABSTAINED: PLANNING COMMISSIONER ABSENT: ELIZABETH A. BINSACK "C Planning Commission Secretary Altowaiji, Kozak, Lombard, Smith, Thompson (5) 1 u ATTACHMENT Draft Ordinance No. 1466 (Code Amendment 2015-005) 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 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 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. I. 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`h 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, delivery/transportation, 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 1466 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. O. 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. 0. 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. Section 2. The following definition for "medical marijuana dispensary" is hereby added to Section 3141 of Part 4 of Chapter 1 of Article 3 of the Tustin City Ordinance 1466 Page 6 Code and 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 person association, business, facility, use, establishment, location, delivery service, cooperative, collective, or provider, whether fixed or mobile, that possesses, cultivates, processes, distributes, makes available or otherwise facilitates the distribution of marijuana (in any form or incorporated into any other product) to any 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 seq., 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 as defined in this Code are expressly prohibited in all zoning districts. Section 4. Part 5 of Chapter 1 of Article 3 of the Tustin City Code is hereby added to read as follows: PART 5 PROHIBITED USES AND BUSINESSES 3151 PROHIBITED USES 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. 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 Ordinance 1466 Page 7 3152 MEDICAL MARIJUANA DISPENSARIES Medical marijuana dispensaries as defined in this Code are expressly prohibited within the City. 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 19th day of January, 2016. JOHN NIELSEN, MAYOR 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 5th day of January, 2016, and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the 19th day of January, 2016, by the following vote: Ordinance 1466 Page 8 COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: Erica N. Rabe, City Clerk Published: